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Court of Criminal Appeal 8 July 2011

Hawkins v R

[2011] NSWCCA 153

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL ON SENTENCE APPLICANT WITH SEVERE MENTAL ILLNESS APPEAL UPHELD

Citation: Hawkins v R [2011] NSWCCA 153
Court: Court of Criminal Appeal, NSW
Date: 8 July 2011
Judge(s): Allsop P, Hidden J, Hall J

Background

The appellant was arrested in April 2008 and charged with several serious offences arising from a prolonged and violent detention of his former partner over approximately two days. He was ultimately committed for sentence on two charges: detaining for advantage in circumstances of aggravation, and attempting to administer poison with intent to cause distress.

The appellant had a long history of severe mental illness, diagnosed as schizophrenia or schizoaffective disorder, which was found to have materially contributed to his offending. Significant procedural delays occurred in both the Local Court and the District Court, including an adjournment of the sentence hearing when a psychiatrist raised doubts about the appellant's fitness to plead after observing psychotic symptoms on the day of hearing. A formal fitness inquiry was ultimately conducted before the Chief Judge of the District Court.

In the District Court, the sentencing judge allowed a 20% discount for the utilitarian value of the guilty plea, rather than the 25% maximum. The appellant sought leave to appeal on the sole ground that the maximum discount should have applied.

  • Whether the sentencing judge erred in allowing a 20% rather than a 25% utilitarian guilty plea discount under the principles in R v Thomson and Houlton.
  • Whether the delays in entering the guilty plea, attributable to the appellant's mental illness, properly reduced the utilitarian value of that plea.
  • Whether the negotiated nature of the plea arrangement, whereby other charges were not pursued, diminished the utilitarian value of the pleas entered.

Decision

Hidden J, with Allsop P and Hall J agreeing, found that the sentencing judge had been, in all likelihood unintentionally, misled about the timeliness of the appellant's plea in the Local Court. As a result, her Honour failed to have regard to the true procedural history, and this caused her discretion to miscarry.

The Court found that the delays in entering the pleas in both the Local Court and the District Court were fairly attributable to the appellant's mental illness, not to any reluctance or vacillation on his part unconnected to his condition. This was the central reason the maximum 25% discount was warranted.

The Court also rejected any suggestion that the utilitarian value of the pleas was reduced by the fact that they were the product of negotiation resulting in other charges being dropped. Drawing on R v Sharrouf and R v Zeilaa, Hidden J noted that this was a common feature of such arrangements, and that the charges to which the appellant pleaded guilty appropriately reflected the criminality involved.

The resulting adjustment to sentence was modest, reducing the head sentence to 5 years and the non-parole period to 3 years and 3 months. Allsop P emphasised that, in the context of the appellant's mental illness, an additional three months of custody was not inconsequential and could not be dismissed as mere tinkering.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence on the charge of detaining for advantage in circumstances of aggravation quashed.
  • In lieu, the appellant sentenced to imprisonment comprising a non-parole period of 3 years and 3 months (commencing 12 April 2008, expiring 11 July 2011) and a balance of term of 1 year and 9 months (commencing 12 July 2011, expiring 11 April 2013).

Key Takeaways

  • Delays in entering a guilty plea that are directly attributable to a diagnosed mental illness do not necessarily reduce the utilitarian value of that plea for sentencing discount purposes.
  • A sentencing court's failure to have regard to the true procedural history of a matter, including the reasons for plea delay, constitutes a discernible and discrete error capable of vitiating the exercise of sentencing discretion.
  • The negotiated nature of a guilty plea, where related charges are not pursued in exchange, does not by itself diminish the utilitarian value of the plea entered, provided the charges reflect the actual criminality involved.
  • Even a modest sentencing error, amounting to approximately three months of additional custody, may be sufficient to warrant appellate intervention, particularly where the offender has a serious mental illness and that additional period carries real consequence.
  • The Court of Criminal Appeal confirmed that where a sentencing judge's discretion has miscarried on a specific ground, the appellate court will re-sentence in the exercise of its own discretion rather than simply applying a mechanical correction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38(a), 41, 59(1), 61I, 86(2)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Criminal Code Act 1995 (Cth)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Sharrouf [2009] NSWSC 1002
- R v Zeilaa [2009] NSWSC 532