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41
Court of Criminal Appeal 16 October 2012

R v Windle

[2012] NSWCCA 222

Assault & violence
CRIMINAL LAW DIRECTOR'S APPEAL AGAINST SENTENCE DIRECTOR'S APPEAL AGAINST SENTENCE DIRECTOR'S APPEAL AGAINST SENTENCE MENTAL ILLNESS 164 CLR 465 CRIMINAL LAW

Citation: Windle v R [2012] NSWCCA 222
Court: Court of Criminal Appeal (NSW)
Date: 16 October 2012
Judges: Basten JA; Price J; S G Campbell J

Background

The respondent, a prison inmate at Long Bay Correctional Centre, strangled a fellow inmate with a sock during a shower, intending to kill him. The victim lost consciousness and suffered throat injuries, but survived. The following day, the respondent frankly told Corrective Services officers what he had done and why, and subsequently pleaded guilty at the first reasonable opportunity.

The sentencing judge in the District Court imposed a total term of four years and six months, with a non-parole period of two years and six months, commencing on 29 October 2011. The sentence took account of the respondent's early guilty plea (attracting a 25% discount), his mental illness, and a finding of special circumstances that altered the statutory ratio between the non-parole period and the balance of term.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly inadequate and that specific errors had been made in the sentencing exercise.

  • Whether the sentencing judge erred in fixing the commencement date of the sentence by backdating it to the last available parole consideration date, and whether the period in custody after parole revocation was properly accounted for under ss 24 and 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the extent of leniency for an offender's voluntary revelation of intent and early guilty plea depends on the degree or completeness of that revelation, and whether a numerical discount must be stated
  • Whether the sentencing judge misapplied the principles in Veen v The Queen [No 2] (1988) concerning mental illness: specifically, whether mental illness reduces retributive considerations, affects the gravity of the offence, and whether protection of the community can justify a sentence exceeding what would otherwise be appropriate
  • Whether the finding of special circumstances under s 44 of the Sentencing Procedure Act was warranted given the respondent's significant criminal record, lack of remorse, and uncertain engagement with mental health treatment

Decision

Commencement date: Basten JA accepted the sentencing judge's backdating of the sentence to 29 October 2011, noting this was the date on which the respondent could next have been considered for parole under his pre-existing sentence. The court acknowledged ongoing uncertainty in the case law about whether custody attributable to parole revocation triggered by the new offence falls within the phrase "in relation to the offence" in ss 24 and 47(3), but found no error in the approach taken in this case.

Guilty plea discount and revelation of intent: The court confirmed that an offender's voluntary and frank disclosure of criminal intent can attract leniency under the principles established in R v Ellis (1986), even where the offending is serious. However, the extent of the leniency is not governed by a fixed mathematical formula. A numerical discount for a guilty plea need not be separately articulated in all cases, though where one is stated, it should be accurate. The 25% discount for the early plea was not challenged successfully.

Mental illness: The court engaged closely with Veen [No 2] and R v Engert (1995). It confirmed that mental illness can reduce the relevance of general deterrence and the weight given to retribution, but does not automatically produce a lower sentence. The sentencing judge had erred by treating mental illness as reducing the gravity of the offence itself, rather than as a factor relevant to the offender's moral culpability. Critically, the court confirmed that a sentence imposed partly for the protection of the community cannot exceed what would otherwise be appropriate, but also recognised that mental illness may simultaneously increase the importance of personal deterrence and community protection, potentially balancing out any reduction.

Special circumstances and overall sentence: The court found the combination of factors did not justify the finding of special circumstances given the respondent's significant criminal history, lack of remorse, and uncertain prospects of accepting mental health treatment. Taking all matters into account, including the errors identified, the court resentenced the respondent to a total term of five years and four months, with a non-parole period of four years.

Orders Made

• An appropriate sentence cannot be less than seven years imprisonment
• Agreement with Basten JA's adjustments and proposed orders

Key Takeaways

  • The Court of Criminal Appeal confirmed that while mental illness can reduce the weight given to retribution and general deterrence in sentencing, it does not automatically diminish the gravity of the offence itself, and may simultaneously heighten considerations of personal deterrence and community protection.
  • Under Veen [No 2], a sentence imposed partly to protect the community cannot exceed the sentence that would otherwise have been appropriate for the offence; however, the interplay of mental illness factors may in practice produce a sentence no less severe than would have been imposed absent that illness.
  • Voluntary and frank disclosure of criminal intent can attract leniency in sentencing following R v Ellis, but the degree of leniency is not fixed by formula and depends on the circumstances of the particular case.
  • The uncertainty in the case law regarding ss 24 and 47 of the Crimes (Sentencing Procedure) Act was noted: it remains unsettled precisely how a court must account for time spent in custody following parole revocation where that revocation was triggered by the new offence being sentenced.
  • A finding of special circumstances under s 44 requires genuine justification on the facts; the presence of a significant criminal record, absent remorse, and uncertain prospects of treatment engagement may weigh against such a finding.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 29, 37
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 44, 47, 56; Div 1A
- Criminal Appeal Act 1912 (NSW), s 5D
- Evidence Act 1995 (NSW), ss 85, 86

Cases:
- Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465
- R v Ellis (1986) 6 NSWLR 603
- R v Engert (1995) 84 A Crim R 67
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- Markarian v R [2005] HCA 25; 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen [2011] 244 CLR 120
- Pearce v The Queen (1998) 194 CLR 610
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- Munn v R [2009] NSWCCA 218
- R v Bell [2005] NSWCCA 81
- R v Lawrence [2005] NSWCCA 91
- R v MW [2007] NSWCCA 291
- Regina v Fyffe [2002] NSWSC 751
- Regina v Hoskins [2004] NSWCCA 236
- S v Regina (2008) 186 A Crim R 505