Citation: Turner v R [2011] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 22 August 2011
Judges: Basten JA, Simpson J, Garling J
Background
The applicant pleaded guilty in the District Court at Tamworth to armed robbery committed at a hospital emergency department. He had attended the hospital carrying a syringe, threatened a nurse and doctor, and took morphine sulphate and Fentanyl from a drug cupboard. A Form 1 offence of stealing (the snatching of prescription patches from a pharmacist three days earlier) was also taken into account.
The applicant's circumstances were significant. In 2003 he suffered a serious accident in the Northern Territory that left him with chronic pain. He was legitimately prescribed opioid pain relief medication, and his addiction developed from that prescription. By early 2010 he was itinerant, struggling with opioid dependence, depression, suicidal ideation, and a diagnosed pain disorder. When police stopped him shortly after the robbery, they found a rope fashioned into a noose in his vehicle. Psychiatric evidence from Dr Ellis confirmed his condition significantly impaired his ability to control impulses.
Payne DCJ sentenced the applicant to four years and six months imprisonment with a non-parole period of two years and nine months. The applicant sought leave to appeal on the grounds that the sentencing judge erred in her treatment of his addiction and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in failing to give proper weight to the applicant's mental state and addiction when assessing the objective gravity of the offence and his moral responsibility
- Whether the sentencing judge erred in characterising the applicant's opioid addiction as a matter of "personal choice" and equating it with addiction to illicit drugs
- Whether the resulting sentence was manifestly excessive
Decision
On the question of personal choice and addiction, the Court of Criminal Appeal held that the sentencing judge was in error. Payne DCJ had drawn on cases such as Bichar v R and R v SY for the proposition that self-medication with prohibited drugs is not a mitigating factor. The Court found those cases had no proper application here. The applicant's addiction arose from legitimately prescribed medication for a serious injury, not from any initial unlawful act or personal choice to use illicit substances.
Simpson J found that the sentencing judge's conclusions, including that "at certain points he must have had a choice" and that he had "abused" the prescribed drug over seven years, were unfair on the evidence. The applicant had sought rehabilitation and had taken available steps to address his addiction. The Court distinguished his circumstances from those of offenders who had commenced drug use through unlawful activity.
Basten JA added a broader point about the principles governing sentencing of persons with mental illness or disability. His Honour confirmed that where freedom of choice is restricted, a lesser penalty is generally indicated, and that retribution and general deterrence may both be satisfied by a reduced sentence in such cases. He noted that recognising the medical explanations for addiction does not condone drug use, and identified the applicant's situation as one warranting a degree of sympathy that diminished his moral responsibility, without excusing the seriousness of the offence.
The Court was unanimously satisfied the sentence was manifestly excessive, and re-sentenced the applicant accordingly.
Orders Made
- Leave to appeal granted
- Appeal allowed; sentence imposed in the District Court quashed
- Applicant re-sentenced to imprisonment for 3 years and 6 months, commencing 15 March 2010 and expiring 14 September 2013, with a non-parole period of 1 year and 9 months, expiring 14 December 2011
Key Takeaways
- A sentencing court's characterisation of an offender's addiction as a matter of "personal choice" may constitute legal error where the addiction originated in legitimately prescribed medication following serious physical injury, rather than voluntary unlawful drug use.
- The Court of Criminal Appeal confirmed that reduced moral responsibility, arising from addiction or mental impairment relevant to the offending, can justify a lesser sentence not only on grounds of individual culpability but also because retribution and general deterrence are themselves diminished in such cases.
- Precedents holding that self-medication with prohibited drugs is not a mitigating factor do not automatically extend to cases involving dependency on prescription opioids, which occupy a distinct category.
- Basten JA observed, without deciding the broader question, that a future case may require closer examination of the basis for the general principle that illicit drug addiction is not mitigating, particularly in light of evolving medical understandings of addiction.
- An error in failing to give proper weight to psychiatric evidence of impaired impulse control and emotional regulation, when assessing the objective gravity of an offence, may render the resulting sentence manifestly excessive.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3
Cases:
- Bichar v R [2006] NSWCCA 1
- R v CJP [2004] NSWCCA 118
- R v de la Rosa [2010] NSWCCA 194
- R v Engert (1995) 84 A Crim R 67
- R v Fahda [1999] NSWCCA 267
- R v Georgopolous [2010] NSWCCA 246
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338
- R v Lauritsen [2000] WASCA 203; 114 A Crim R 333
- R v Letteri, unreported, NSWCCA, 18 March 1993
- R v McEvoy [2010] NSWCCA 110
- R v SY [2003] NSWCCA 291
- R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Ryan v The Queen [2001] HCA 21; 206 CLR 267