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Court of Criminal Appeal 21 April 2011

FIELD v R

[2011] NSWCCA 70

Assault & violenceTheft & propertyTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE RECIDIVIST MENTAL CONDITION

Citation: FIELD v R [2011] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 21 April 2011
Judges: Campbell JA, RS Hulme J, Hoeben J

Background

The appellant was sentenced in the District Court on 13 October 2009 in respect of seven offences arising from a spree of offending across regional NSW in November 2008. The offences included two counts of stealing a motor vehicle, two counts of assaulting police, resisting arrest, dangerous driving, and armed robbery. The principal offence, the armed robbery, involved the appellant entering a Dubbo pizza store and demanding money from staff while brandishing a serrated knife, obtaining $238.20.

The appellant had been released from custody on 31 October 2008 to undertake a community treatment program. He ceased his psychiatric medication almost immediately, began using speed and cannabis, and offended within days of his release. He had an extensive criminal record stretching back to 2001, including multiple prior convictions for dangerous driving and driving whilst disqualified.

The effective total sentence imposed was 7.5 years imprisonment with a non-parole period of 5.5 years. The appellant sought leave to appeal against the sentence, contending primarily that the sentencing judge had failed to give adequate weight to his mental condition.

  • Whether the sentencing judge gave adequate weight to the appellant's mental health condition, including diagnosed major depression with psychotic features and auditory hallucinations, as a mitigating factor.
  • Whether the mental condition reduced the appellant's moral culpability, rendered him less suitable for general deterrence, or meant that imprisonment would weigh more heavily on him, in accordance with the principles in R v Engert and R v Hemsley.

Decision

RS Hulme J (with whom Campbell JA and Hoeben J agreed) identified the core difficulty facing the appellant: establishing that his mental condition at the time of the offending, or at the time of sentencing, engaged any of the recognised bases on which mental illness can reduce a sentence. The court drew on the three-limb analysis from R v Engert and R v Hemsley, which recognises that mental illness may mitigate a sentence where it reduces moral culpability, makes an offender an inappropriate vehicle for general deterrence, or causes a custodial sentence to weigh more heavily.

The court identified several factors that significantly undermined the mitigating weight of the mental health evidence. The appellant's own admissions indicated that his psychotic symptoms worsened after he voluntarily consumed speed and cannabis following his release. He also told Professor Greenberg that ceasing his medication had made him feel better, which tended against a finding of reduced culpability or the likelihood of future treatment compliance.

The sentencing judge had also observed that the appellant demonstrated sufficient planning and presence of mind to arrange a car test drive under false pretences and carry out a sequenced series of offences across multiple locations, suggesting his mental state did not entirely impair his capacity for deliberate action. The Court of Criminal Appeal endorsed this reasoning.

The court further noted that, to the extent the appellant's psychotic symptoms included voices commanding him to kill people, his mental condition might actually have argued for a higher sentence, given the need to protect the community. No error in the sentencing judge's approach was established, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A mental illness diagnosis does not automatically reduce a sentence. Under the framework in R v Engert, the illness must relevantly reduce moral culpability, make the offender an unsuitable vehicle for general deterrence, or cause imprisonment to weigh more heavily on them.
  • Where psychotic symptoms are exacerbated by the voluntary consumption of illicit drugs, the mitigating effect of those symptoms is significantly weakened.
  • The Court of Criminal Appeal confirmed that a mental condition associated with commanding hallucinations to harm or kill others may, in certain circumstances, support a heavier sentence rather than a lighter one, given the public protection rationale.
  • In dismissing the appeal, the Court found that the sentencing judge's conclusion that the appellant retained sufficient planning capacity to carry out deliberate offending was a legitimate basis for limiting the mitigating weight given to mental illness evidence.
  • No error was established in the District Court's exercise of sentencing discretion, notwithstanding the volume of psychiatric evidence placed before it.

Legislation and Cases Referenced

Cases:
- R v Henry & Ors (1999) 46 NSWLR 346
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Thomson and Houlton (2001) 49 NSWLR 383
- Veen v R [No.2] (1987-1988) 164 CLR 465

Legislation:
- Mental Health Act 2007 (NSW) (referenced in the psychiatric evidence)