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Court of Criminal Appeal 4 March 2010

MERCAEL v R

[2010] NSWCCA 36

Assault & violenceDomestic & family violence

Citation: MERCAEL v R [2010] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 4 March 2010
Judges: McClellan CJ at CL, James J, Davies J

Background

The applicant pleaded guilty in the District Court to maliciously wounding with intent to do grievous bodily harm under s 33 of the Crimes Act, following a serious knife attack on his estranged wife in November 2007. The offence occurred in a context of prolonged domestic violence, repeated breaches of an apprehended violence order, and escalating conduct in the lead-up to the attack. The applicant had a history of prior convictions for assaulting the same victim.

Judge Sides of the District Court imposed a head sentence of 12 years and 9 months with a non-parole period of 8 years, finding the offence was well above the mid-range of objective seriousness. The applicant sought leave to appeal against the sentence, arguing the judge erred in three specific respects and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to give sufficient weight to a causal connection between the applicant's mental illness and the commission of the offence
  • Whether the sentencing judge erred in finding the offence was well above the mid-range of objective seriousness
  • Whether the sentencing judge erred in finding that the applicant's prospects of rehabilitation and of not re-offending were "no higher than reasonable"
  • Whether the sentence was manifestly excessive

Decision

On the first ground, the Court examined whether the sentencing judge had failed to give adequate weight to psychiatric evidence. The applicant's condition had been assessed by Dr Westmore, a forensic psychiatrist, across multiple reports. The Court found that where the expert himself could not identify a clear causal connection between the applicant's mental illness and the commission of the offence, it was not open to the sentencing judge to treat the mental illness as a significant mitigating factor. This ground was rejected.

On objective seriousness, the Court confirmed it was open to the sentencing judge to find the offence fell well above the mid-range. The attack involved a premeditated approach to the victim's home, the use of a knife, multiple stab wounds causing serious injuries, and a sustained attack despite the victim's attempts to resist. No appellable error was identified in this assessment.

Regarding rehabilitation, the Court noted that even in Dr Westmore's final report, the applicant's insight into the wrongfulness of his conduct remained compromised. Combined with his prior offending against the same victim and his failure to comply with court orders, the sentencing judge's finding that rehabilitation prospects were "no higher than reasonable" was clearly open. The Court rejected this ground and, having dismissed all three specific grounds, also rejected the claim of manifest excess.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • A causal connection between a mental illness and the commission of an offence is required before that illness can operate as a significant mitigating factor in sentencing; where the expert evidence does not establish such a connection, the sentencing court is not obliged to treat the illness as materially reducing the sentence.
  • In dismissing all grounds of appeal, the Court of Criminal Appeal confirmed that an offence of wounding with intent involving premeditation, a weapon, sustained violence, and serious injury can properly be assessed as well above the mid-range of objective seriousness under s 33 of the Crimes Act.
  • Compromised insight, documented in the applicant's own psychiatric evidence, can support a finding that rehabilitation prospects are limited, even where prior offending was confined to a single victim.
  • Appellate intervention in sentencing requires an identifiable error of principle or a finding that is not reasonably open on the material; the Court reaffirmed the narrow circumstances in which an appellate court will disturb a sentencing judge's exercise of discretion, consistent with House v The King (1936) 55 CLR 499.
  • No independent submissions in support of a manifest excess ground are unlikely to succeed once specific sentencing errors have each been rejected.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 33 (malicious wounding with intent to do grievous bodily harm; maximum penalty 25 years; standard non-parole period 7 years)

Cases:
- House v The King (1936) 55 CLR 499
- Engert v R (1995) 84 A Crim R 67
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- R v Mulato [2006] NSWCCA 282
- Wilmot v R [2007] NSWCCA 278
- Kalemusic v R [2009] NSWCCA 178