AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
31
Court of Criminal Appeal 14 July 2010

Palijan v R

[2010] NSWCCA 142

Assault & violenceDomestic & family violencePublic order & justice offences

Citation: Palijan v R [2010] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 14 July 2010
Judge(s): McClellan CJ at CL, Hislop J, Barr AJ

Background

The appellant pleaded guilty in the Local Court to one charge of aggravated breaking and entering while committing intimidation involving corporal violence, and one charge of assault occasioning actual bodily harm. Both offences arose from a single incident on the morning of 3 January 2009, when the appellant forced entry into the home of his former partner and confronted her with a kitchen knife, holding it to her throat before pursuing and physically dragging her outside.

The appellant was approximately 50 years of age with an extensive criminal history beginning in his mid-teens, encompassing many offences of violence and dishonesty. He also had a prolonged history of drug and alcohol dependency, and had been receiving treatment for psychotic symptoms, including auditory hallucinations and paranoid delusions, in the years leading up to the offences. A consultant forensic psychiatrist, Dr Furst, reported that the appellant's active psychotic symptoms at the time of the offending made it unlikely he was aware of the wrongfulness of his actions.

In the District Court, Judge Knox sentenced the appellant to a non-parole period of 3 years with a balance of term of 2 years on the principal charge, and a concurrent fixed term of 12 months on the second charge. The appellant sought leave to appeal those sentences to the Court of Criminal Appeal.

  • Whether the sentencing judge gave adequate weight to the appellant's mental illness in mitigation, in accordance with the principles governing the sentencing of mentally ill offenders
  • Whether the sentencing judge placed excessive emphasis on the need to protect the public at the expense of those mitigating principles
  • Whether the sentences imposed fell outside the proper exercise of the sentencing discretion

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with Barr AJ delivering the substantive judgment and the other members agreeing. The Court acknowledged the established principle that an offender's mental illness, where it causally contributes to the offending, is a relevant mitigating factor that ordinarily reduces the weight given to both general and personal deterrence in sentencing. However, the Court also confirmed that this principle must be weighed against the separate and legitimate sentencing purpose of protecting the public.

A central consideration was Dr Furst's psychiatric report. The report recorded a persistent pattern of psychotic symptoms, including paranoid delusions and auditory hallucinations, that had been present for some years before the offences. Critically, Dr Furst noted that upon his release from custody in November 2008, the appellant had stopped taking his prescribed antipsychotic medication and had returned to illicit drug and alcohol use, after which his violent behaviour resumed. The sentencing judge had taken this history into account in assessing the risk the appellant posed to the public.

The appellant argued that the sentencing judge had not dealt adequately with Dr Furst's report in his remarks on sentence. The Court rejected that submission, finding that the judge had provided a fair and succinct summary of the psychiatric evidence and had correctly identified and applied the relevant principles. The Court also considered sentences imposed in comparable cases cited by the appellant, including R v Binnie, and found them to be of limited assistance given that the offender in that case had been assessed as unlikely to reoffend, making it materially different from the present matter.

The Court concluded that the sentences did not indicate the judge had given too little weight to the appellant's mental condition or too much weight to public protection. The total effective sentence was within the proper range of the sentencing discretion.

Orders Made

  • Leave to appeal against sentences granted
  • Appeal dismissed

Key Takeaways

  • Where an offender has a mental illness that causally contributes to offending, sentencing courts are required to moderate the weight given to general and personal deterrence, but this does not operate as an absolute or overriding consideration.
  • Public protection remains a legitimate and weighty sentencing purpose, and may properly carry greater significance where an offender has a history of criminal violence and a pattern of ceasing prescribed treatment upon release from custody.
  • The Court of Criminal Appeal confirmed that the competing sentencing considerations of mental illness mitigation and community protection must be weighed against each other on the specific facts; neither automatically prevails.
  • In dismissing the appeal, the Court found no error in the sentencing judge's treatment of the psychiatric evidence, even though the report contained material that could have supported a plea of not guilty on grounds of mental illness (a course the appellant chose not to pursue).
  • Comparisons with sentences in other cases are of limited utility where the facts, and particularly the assessed risk of reoffending, differ materially from the case under consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated breaking and entering)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)
- Mental Health Act (NSW)

Cases:
- R v Engert (1995) 84 A Crim R 67
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Letteri (NSWCCA, 18 March 1992, unreported)
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Binnie [2010] NSWCCA 14