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Court of Criminal Appeal 10 August 2011

Picciolo v R

[2011] NSWCCA 180

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL SENTENCE APPEAL RESPONDING TO TREATMENT APPEAL UPHELD SENTENCE ADJUSTED.

Citation: Picciolo v R [2011] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 10 August 2011
Judge(s): McClellan CJ at CL, Simpson J, Fullerton J

Background

The applicant pleaded guilty to four offences arising from two separate incidents involving his estranged wife. The first was stalking and intimidation in May 2009. The second, in August 2009, involved breaking into the victim's home while armed with a large knife, detaining her in her bedroom, and assaulting her. The offences occurred against a backdrop of persistent surveillance, harassment, and threatening conduct following the breakdown of the relationship.

The applicant was sentenced to an overall term of five years imprisonment with a non-parole period of three years. The primary head sentence, for breaking and entering while armed with an offensive weapon, carried a maximum penalty of 20 years and a standard non-parole period of five years.

The applicant sought leave to appeal his sentence, arguing the sentencing judge failed to give adequate weight to his mental illness and its connection to the offending.

  • Whether the sentencing judge gave adequate weight to the applicant's mental illness when assessing his culpability and suitability as a vehicle for general deterrence
  • Whether the sentencing judge adequately explained her reasoning for maintaining general deterrence as a significant sentencing objective despite the applicant's mental illness
  • Whether the overall sentence was manifestly excessive in light of the applicant's psychiatric condition and his response to treatment

Decision

The Court of Criminal Appeal upheld the appeal. Both Simpson J and Fullerton J found that the sentencing judge had not adequately explained why the applicant remained an appropriate vehicle for general deterrence to the extent reflected in the sentence, given the causal connection between his mental illness and the offending. McClellan CJ at CL agreed with this assessment.

The Court acknowledged the established principle, drawn from cases including Palijan v R, that mental illness does not entirely remove the need for general deterrence in sentencing. However, the degree to which deterrence remains relevant depends on the circumstances of each case, particularly the extent to which mental illness contributed to the offending.

In this case, the applicant's mental illness had a clear and significant causal connection to his conduct. The Court accepted that this moderated the importance of general deterrence very considerably, even if it did not eliminate it altogether. The sentencing judge's reference to the offending as "a typical example" of domestic partner violence was treated as relevant to the general deterrence analysis, but insufficient to justify the weight given to that objective without more explanation.

The Court substituted a period of two years in custody as giving appropriate weight to the causal connection between the applicant's mental illness and the offending, while still reflecting established sentencing objectives including general deterrence.

Orders Made

• A period of 2 years in custody

Key Takeaways

  • Mental illness does not automatically eliminate general deterrence as a sentencing consideration, but where a clear causal connection exists between an offender's psychiatric condition and the offending, that connection can moderate the weight given to general deterrence very considerably.
  • A sentencing court must adequately explain its reasoning for maintaining general deterrence as a significant objective where evidence of mental illness is before it. Failing to do so constitutes error.
  • The Court of Criminal Appeal confirmed that the principle from Palijan v R applies: the extent to which deterrence is reduced is fact-specific and depends on the circumstances attending each individual case.
  • Characterising domestic partner violence as "typical" may be relevant to a general deterrence analysis, but does not, without more, provide sufficient reasoning to justify a sentence that gives limited weight to an offender's mental illness.
  • In substituting the sentence, the Court balanced the need to reflect general deterrence and other sentencing objectives against the applicant's psychiatric condition and his positive response to treatment in custody.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 86(1), 112(2)
- Crime (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Cases:
- Ali & Hussain v R [2010] NSWCCA 184
- Bajouri v R [2009] NSWCCA 125
- Crook v R [2008] NSWCCA 84
- Fajloun & Fajloun v R [2011] NSWCCA 41
- Palijan v R [2010] NSWCCA 142
- The Queen v Heine [2008] NSWCCA 61
- R v Pham [2005] NSWCCA 314
- R v Way [2004] NSWCCA 131; 60 NSWLR 168