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Court of Criminal Appeal 30 June 2011

Kizzy McCLAIN v R

[2011] NSWCCA 191

Theft & property
CRIMINAL LAW ATTEMPTED ARMED ROBBERY PLEA OF GUILTY WHETHER ISSUE OF MENTAL HEALTH AROSE NO QUESTION OF PRINCIPLE

Citation: Kizzy McClain v R [2011] NSWCCA 191
Court: Court of Criminal Appeal, New South Wales
Date: 30 June 2011
Judges: McClellan CJ at CL; Hidden J; Hall J

Background

The applicant, a 21-year-old Aboriginal woman, pleaded guilty in the District Court to attempted armed robbery. On 23 August 2009 she entered a store where she was a regular customer, produced a knife and demanded money. Staff resisted and she fled. She was intoxicated at the time by a combination of methadone and benzodiazepines.

The applicant had a minor prior criminal history and was on a conditional bond for stealing from a dwelling at the time of the offence. She had a deeply troubled background that contributed to longstanding drug and alcohol dependency. She had also exhibited symptoms of depression and anxiety and had been admitted to hospital shortly before the offence after ingesting an excess of Xanax tablets.

The sentencing judge imposed three years imprisonment with a non-parole period of 18 months commencing 4 January 2010. The applicant sought leave to appeal against that sentence, raising grounds relating to the treatment of her mental health condition and her intoxication.

  • Whether the sentencing judge failed to give adequate weight to the applicant's mental health condition as a factor affecting the objective gravity of the offence, pursuant to the principles in R v Engert
  • Whether the sentencing judge failed to treat the applicant's intoxication and drug addiction appropriately as mitigating factors
  • Whether the sentencing judge's reasons were adequate given the mental health material placed before the court

Decision

On the mental health ground, the Court found that the material before the sentencing judge did not genuinely raise the R v Engert principles governing the role of mental illness in sentencing. The psychological report offered only speculative observations about the applicant's state of mind, and the sentencing judge was entitled to conclude that the offence was committed as a result of intoxication rather than mental illness. No submission invoking R v Engert had even been made to the sentencing judge below.

On the adequacy of the sentencing judge's reasons, the Court held that those reasons were entirely adequate in the circumstances. Hidden J emphasised that District Court judges operate under significant pressure, often dealing with multiple sentence matters in a single day, and that brevity in reasons is appropriate where the evidence does not compel a more extended analysis.

On the intoxication and drug addiction ground, the Court accepted that the sentencing judge treated the applicant's drug use as an explanation rather than a mitigating factor, which was permissible. However, reading the remarks on sentence as a whole, the Court was satisfied the judge was sensitive to the applicant's background and the drug dependency it produced, and that the sentence arrived at was relatively low by reference to the R v Henry guideline judgment. Counsel for the applicant on appeal, who had not appeared below, conceded this point.

McClellan CJ at CL added pointed observations about the practice of raising new arguments on sentence appeal that were never put to the sentencing judge. The Court of Criminal Appeal is a court of error and will not apply a "fine toothed comb" approach to a sentencing judge's remarks, particularly where the issues now advanced were not the subject of submissions at first instance.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that it is a court of error and will not closely scrutinise sentencing remarks for matters that were never raised by way of submission before the sentencing judge.
  • Where sparse or speculative psychological evidence does not clearly invoke the R v Engert principles on mental illness and sentencing, a sentencing judge is not required to engage with those principles at length.
  • A sentencing judge's brevity in reasons is explicable and acceptable when it reflects both the nature of the evidence placed before the court and the volume of work District Court judges manage in sentencing proceedings.
  • No appellable error was established merely because counsel on appeal characterised the sentencing remarks as insufficiently detailed, where the underlying material was limited and no relevant submissions had been made below.
  • In dismissing the appeal, the Court noted that the applicant's sentence was already at the lower end of the range indicated by the R v Henry guideline, a concession made by applicant's counsel on appeal.

Legislation and Cases Referenced

Cases:
- R v Engert (1995) 84 A Crim R 67 (principles governing the role of mental illness in sentencing)
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for armed robbery offences)

Legislation: No specific legislation was cited in the provided text, though a reference was made to a "s 9 bond" (a conditional release order under New South Wales sentencing legislation then in force).