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Court of Criminal Appeal 16 December 2010

Watts v R

[2010] NSWCCA 315

Theft & property
CRIMINAL LAW OFFENDER RE SENTENCED

Citation: Watts v R [2010] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 16 December 2010
Judge(s): McClellan CJ at CL, Howie AJ, Schmidt J

Background

The applicant was convicted in the District Court of maliciously damaging by fire a public housing dwelling in Bidwill, NSW, contrary to s 195(1)(b) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 10 years' imprisonment. The applicant and his de facto partner had been tenants of the property since December 2005, and the house had fallen into extreme disrepair.

The Crown established that the applicant purchased petrol the day before a scheduled Housing Department inspection and subsequently used it, together with debris already in the home, to start a fire. The fire caused structural damage estimated at $70,000 and ultimately rendered the property unsaleable for continued public use. The sentencing judge found the applicant believed that destroying the property would entitle him to emergency housing assistance and relieve him of his difficulties with the Department.

The applicant was sentenced in the District Court by Syme DCJ to 6 years and 6 months' imprisonment, with a non-parole period of 4 years and 10 months commencing 21 August 2008. He sought leave to appeal on three grounds.

  • Whether the sentencing judge erred in her assessment of the objective seriousness of the offence by applying a methodology appropriate only to offences carrying a standard non-parole period
  • Whether the sentencing judge failed to give adequate weight to the psychiatric evidence concerning the applicant's mental condition
  • Whether the overall sentence was manifestly excessive

Decision

On the first ground, the Court noted that the sentencing judge appeared to assess objective seriousness as a discrete step in the sentencing process. This two-stage approach is required for offences that attract a standard non-parole period but is not the correct methodology for other offences, as confirmed in Markarian v R and a line of Court of Criminal Appeal decisions. However, the Court was not persuaded this methodological error alone invalidated the sentence, given the undisputed seriousness of the applicant's criminality.

On the second ground, the Court found the sentencing judge had not given appropriate weight to the psychiatric evidence. Two experts, Professor Greenberg and Dr Ellis, both identified significant impairments: these included severe personality disorder, post-traumatic stress disorder, polysubstance dependence, and probable chronic depression. Dr Ellis specifically opined that the applicant's ability to reflect on his decisions at the time of offending was likely impaired compared to an average person. The sentencing judge treated these matters as of limited significance, and the Court of Criminal Appeal held that this constituted an error requiring intervention.

On manifest excess, the Court observed that the penalty imposed exceeded every recorded sentence for this offence during the relevant statistical period. While the offence was objectively serious given its planning, deliberateness, significant damage, and risk of fire spreading to neighbouring properties, the Court held that the applicant's mental condition warranted a degree of mitigation. The deterrent component of the sentence was reduced, but remained substantial.

The Court declined to find special circumstances justifying a longer than usual balance of term, noting the applicant could access treatment in custody and that the standard parole period would provide sufficient opportunity for community-based treatment on release.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant re-sentenced to imprisonment comprising a non-parole period of 4 years and 1 month and a balance of term of 1 year and 5 months, dating from 21 August 2008

Key Takeaways

  • A sentencing court must not treat the assessment of objective seriousness as a distinct preliminary step when dealing with an offence that does not carry a standard non-parole period; this two-stage methodology is reserved for standard non-parole period offences under the approach confirmed in Markarian v R.
  • Where psychiatric evidence establishes that an offender's capacity for rational decision-making was materially impaired at the time of offending, that evidence must be genuinely factored into the penalty and cannot be treated as a peripheral consideration.
  • The Court of Criminal Appeal confirmed that the applicant's combined diagnoses (personality disorder, PTSD, polysubstance dependence, and probable chronic depression) were capable of mitigating an otherwise serious sentence, even without a finding of formal mental illness under the Mental Health Act.
  • Statistical sentencing data showing that an imposed sentence exceeds all recorded penalties for a comparable offence during the relevant period is a relevant indicator of manifest excess, though it is not determinative on its own.
  • Declining to find special circumstances is consistent with an offender's need for post-release treatment where that treatment can be accessed both in custody and during the standard parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health Act (NSW)

Cases
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Sivell v R [2009] NSWCCA 286
- Georgopolous v R [2010] NSWCCA 246
- Okeke v R [2010] NSWCCA 266
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Hemsley [2004] NSWCCA 228