Citation: MDZ v Regina [2011] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 15 November 2011
Judges: Tobias AJA, Johnson J, Hall J (Hall J delivering the principal judgment)
Background
The applicant pleaded guilty to two counts of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900, with a related indecent assault taken into account on a Form 1. The offences were committed against a 12-year-old complainant during a birthday sleepover at a private residence in Coffs Harbour in April 2009. The applicant, then 26 years old, had been staying at the house and was sleeping in the same lounge room as the complainant and other young girls.
The District Court sentenced the applicant to a total effective sentence of 11 years' imprisonment with a non-parole period of 7 years, imposed on Count 2, with a fully concurrent 7-year term (non-parole period of 4 years) on Count 1. The applicable standard non-parole period (SNPP) for a s 61J offence is 10 years, against a maximum of 20 years.
The applicant sought leave to appeal to the Court of Criminal Appeal, contending the sentences were manifestly excessive. Central to the appeal was whether the sentencing judge had properly accounted for the applicant's mental health difficulties and cannabis intoxication when assessing the objective seriousness of the offences.
Legal Issues
- Whether the sentences imposed were manifestly excessive, constituting appellable error under the principles in House v The King (1936) 55 CLR 499
- Whether the sentencing judge properly applied the standard non-parole period framework, particularly following the High Court's decision in Muldrock v R [2011] HCA 39
- Whether the applicant's borderline personality disorder and cannabis intoxication at the time of the offending were properly reflected in the assessment of the objective seriousness of the offences
- Whether those factors warranted a greater downward departure from the SNPP than the sentencing judge allowed
Decision
The Court of Criminal Appeal granted leave to appeal and found the original sentences manifestly excessive. Hall J, with whom Tobias AJA and Johnson J agreed, identified appellable error in the sentencing judge's treatment of the applicant's mental health condition and intoxication in relation to the objective circumstances of the offending.
The Court applied the framework recently confirmed in Muldrock v R [2011] HCA 39, which established that the SNPP operates as a guidepost to be engaged in the instinctive synthesis of all relevant factors, rather than as a rigid starting point. Under that approach, factors such as mental health and intoxication are properly considered in assessing both the objective gravity of the offence and the personal circumstances of the offender.
Hall J found that while the sentencing judge had acknowledged the applicant's borderline personality disorder and significant cannabis use on the day of the offending, those matters had not been given sufficient weight in the overall assessment of objective seriousness. A 10 per cent discount was allowed for the guilty plea, and the non-parole period of 7 years on Count 2 was treated as reflecting some allowance for those factors, but not an adequate one.
After resentencing, the Court reduced the total effective sentence to 8 years' imprisonment with a non-parole period of 5 years. Special circumstances, as found by the original sentencing judge, were accepted and carried into the resentencing, with the balance of term proportionally extended beyond the statutory one-third.
Orders Made
- Leave to appeal granted; sentences imposed on 30 April 2010 quashed
- Count 1: re-sentenced to 4 years' imprisonment, with a non-parole period of 2 years and 6 months commencing 20 April 2009, expiring 19 October 2011; balance of 18 months expiring 19 April 2013
- Count 2: re-sentenced to 8 years' imprisonment (concurrent with Count 1), with a non-parole period of 5 years commencing 20 April 2009, concluding 19 April 2014; balance of 3 years expiring 19 April 2017
- Total effective sentence: 8 years, with first parole eligibility on 19 April 2014
Key Takeaways
- The Court of Criminal Appeal confirmed that, following Muldrock v R, the standard non-parole period for s 61J offences operates as one of two guideposts in sentencing, not as a compulsory starting point or threshold; it must be weighed alongside all other relevant sentencing factors.
- Mental health conditions and drug intoxication at the time of offending are relevant not only to the personal circumstances of an offender but also to the court's assessment of the objective seriousness of the offence; failure to give those factors adequate weight may constitute appellable error.
- A borderline personality disorder, while not constituting a mental illness in the strict legal sense, can nonetheless be a mitigating factor in sentencing if it is found to have bearing on the circumstances of the offending.
- Where a sentencing court makes some allowance for relevant mitigating factors but that allowance is insufficient to reflect their true weight, the resulting sentence may be characterised as manifestly excessive even if no single discrete error is identifiable.
- In dismissing the original sentences and resentencing, the Court accepted the finding of special circumstances, producing a non-parole period that was a greater proportion below the SNPP than the original sentences had achieved.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 61J, 61J(1), 61J(2)
Cases
- Muldrock v R [2011] HCA 39; 85 ALJR 1154
- House v The King (1936) 55 CLR 499
- R v Way (2004) 60 NSWLR 168
- HJWG v R [2011] NSWCCA 50
- Monteiro v R [2011] NSWCCA 113
- R v Coleman (1990) 47 A Crim R 306
- R v Knight; Biuvanua (2007) 176 A Crim R 338
- R v McEvoy [2010] NSWCCA 110
- R v Sellars [2010] NSWCCA 133
- Waters v R [2007] NSWCCA 219