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Court of Criminal Appeal 6 July 2011

Jackson v R

[2011] NSWCCA 124

Assault & violence
SENTENCE APPEAL ADEQUACY OF REASONS MENTAL ILLNESS

Citation: Jackson v R [2011] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 6 July 2011
Judges: Giles JA, R S Hulme J, Adams J

Background

The appellant pleaded guilty in the District Court to two offences: malicious damage to a vehicle (slashed tyres, scratched graffiti, and uprooted trees) and arson (burning down a neighbour's house, destroying it entirely with an estimated insurance payout of around $120,000 for the structure alone). Both offences were directed at the same victim and occurred within weeks of each other in mid-2005. The appellant had a lengthy criminal history spanning approximately 32 prior court appearances.

Evidence before the District Court established that the appellant had made explicit threats to burn the victim's house down in the days before the arson. He told several witnesses he had acted out of a long-held grievance against the victim. At the time of the offences, he was drinking heavily and had failed to take his prescribed psychiatric medication, in breach of parole and bond conditions.

A psychiatrist, Dr Westmore, examined the appellant some six days after the offences and later again while he was in custody. Dr Westmore diagnosed the appellant with bipolar affective disorder and concluded he had been in a hypomanic phase at the time of the offending. When properly medicated in custody, the appellant presented as calm, cooperative, and without psychotic symptoms.

  • Whether the District Court judge's remarks on sentence were adequate as an exposition of the reasons for the sentences imposed
  • Whether, on resentencing, the offences warranted accumulated (partially cumulative) sentences or concurrent sentences
  • Whether the appellant's mental illness and other subjective factors (remorse, rehabilitation steps, guilty plea) warranted a reduction from what the objective seriousness of the offences would otherwise call for
  • Whether a special circumstance existed under s 44 of the Crimes (Criminal Procedure) Act 1999 justifying a departure from the standard non-parole period ratio

Decision

All three judges agreed that the District Court judge's remarks on sentence were inadequate. R S Hulme J described them as "grossly inadequate" by comparison with what the appellant, the Crown, and the community were entitled to. The sentencing judge had failed to engage meaningfully with the evidence, the circumstances of the offences, or the relevant subjective matters, and this constituted error warranting leave to appeal.

On resentencing, the majority (Giles JA and R S Hulme J) found that some accumulation of the sentences was appropriate, given that the two offences, although related in motive, involved separate and distinct criminal acts occurring on different occasions. Adams J dissented on this point, concluding the offences formed part of a single criminal enterprise reflecting the same irrational beliefs and disturbed judgment, and that concurrent sentences were warranted.

All three judges accepted that the appellant's bipolar disorder was a relevant mitigating factor. However, the majority weighed this against his persistent failure over many years to comply with medication requirements and parole conditions, and his extensive prior record of offending. Giles JA and R S Hulme J concluded that the mental illness did not sufficiently offset these aggravating features to justify a sentence more lenient than the one imposed below.

Adams J, had he been in the majority, would have resentenced the appellant with concurrent terms and a finding of special circumstance under s 44, allowing for a longer additional term to provide a substantial period of supervised release. Because the majority dismissed the appeal, the District Court sentences were not disturbed.

Orders Made

The majority orders (Giles JA and R S Hulme J) were:

  • Leave to appeal granted
  • Appeal dismissed

Adams J would have made the following orders (dissenting):

  • Time to appeal extended
  • Leave to appeal granted
  • District Court sentences quashed
  • In respect of malicious damage: fixed term of nine months imprisonment commencing 2 May 2008, expiring 1 February 2009
  • In respect of arson: non-parole period of three years commencing 2 May 2008, expiring 1 May 2011, with an additional term of three years commencing 2 May 2011, expiring 1 May 2014

Key Takeaways

  • The Court of Criminal Appeal confirmed that grossly inadequate reasons on sentence constitute error justifying leave to appeal, even where the sentence itself may ultimately be upheld on resentencing.
  • A sentencing court must engage meaningfully with the evidence led at trial, including evidence of premeditation and threats, when formulating reasons, particularly where an offender's mental state is central to the proceedings.
  • Mental illness can reduce the weight of general deterrence in sentencing, but a long history of deliberate non-compliance with medication and conditions may limit the mitigatory value of that illness.
  • The three judges divided on whether related offences sharing a common motive should attract accumulated or concurrent sentences, demonstrating that this remains a fact-sensitive assessment rather than a bright-line rule.
  • Under s 44 of the Crimes (Criminal Procedure) Act 1999, a finding of special circumstance based on mental illness can justify an extended additional term to allow for a substantial period of post-release supervision, though this finding was part of Adams J's dissenting approach only.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(1)(a) and (b) (destroying or damaging property; arson)
- Crimes (Criminal Procedure) Act 1999 (NSW), s 44 (standard non-parole period ratio)

Cases cited: No cases were cited in the judgment as provided.