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Court of Criminal Appeal 19 February 2013

HAMMOND, Brian John v R

[2013] NSWCCA 28

Assault & violenceTraffic & driving
CRIMINAL LAW SENTENCE APPEAL SELF REPRESENTED APPELLANT NO ISSUE OF PRINCIPLE SENTENCING JUDGE NOT IN ERROR APPEAL DISMISSED

Citation: Hammond, Brian John v R [2013] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 19 February 2013
Judge(s): McClellan CJ at CL, Rothman J, Bellew J

Background

The appellant was sentenced in the District Court in October 2009 to six years' imprisonment, with a non-parole period of four years and six months, for aggravated assault with intent to take or drive a motor vehicle while armed with an offensive weapon, contrary to s 154C(2) of the Crimes Act 1900. A concurrent fixed term of nine months was also imposed for failing to submit to a breath analysis.

The offending occurred in Dubbo in March 2009. The appellant, who appeared intoxicated, threatened the victim into providing a lift, held a knife to his throat, and drove away in the victim's car with the victim still inside. The appellant was later arrested and observed to be heavily affected by drugs.

The appellant represented himself on appeal. He had been represented by the Aboriginal Legal Service at the sentencing hearing in the District Court.

  • Whether the appellant's psychiatric condition was appropriately taken into account at sentencing, including whether the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990 should have been engaged
  • Whether the sentencing judge erred by failing to make a finding of "special circumstances" to justify a longer parole period
  • Whether the legal representation provided to the appellant at the sentencing hearing was competent

Decision

Mental health ground: Rothman J construed the first ground broadly, given the appellant was self-represented, treating it as a challenge to whether the psychiatric evidence was properly considered. Psychiatric evidence from Dr Allnutt, retained by the Aboriginal Legal Service on the appellant's behalf, was placed before the sentencing judge. Dr Allnutt's report indicated the appellant likely suffered from a chronic psychotic disorder, but could not establish any causal link between that condition and the offending. The sentencing judge accepted that finding, concluding there was no real correlation between the offence and the appellant's intoxication or mental state.

The Court found no occasion arose for sentencing under the Mental Health Act 2007 or for the operation of Part 2 of the Mental Health (Forensic Provisions) Act 1990. The appellant's suggestion that a different psychiatrist might have produced a more favourable opinion was rejected, as no such opinion was placed before the Court on appeal.

Competence of legal representation: The Court reviewed the sentencing transcript and found the proceedings were conducted properly and competently. No valid criticism could be made of the legal representative's conduct, and there was no basis to suggest Dr Allnutt's report was less favourable to the appellant than any alternative opinion would have been.

Special circumstances ground: The second ground concerned whether the sentencing judge should have found "special circumstances" warranting a longer parole period than the standard ratio would produce. Rothman J noted that no such application had been made before the sentencing judge. Citing Ayoub and El Masri v R [2010] NSWCCA 196, the Court confirmed that a special circumstances finding is a matter of discretion, and appellate intervention requires an established error in the exercise of that discretion. No such error was identified, and the non-parole period was held to be adequate given the rehabilitation timeframe available.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A finding of "special circumstances" to extend the parole period is a matter of judicial discretion; in the absence of a manifest need for a longer parole period, and where no application was made below, a sentencing judge's failure to make such a finding does not constitute error.
  • Where a psychiatric report cannot establish a causal link between a mental health condition and the commission of an offence, a sentencing court does not err by declining to treat that condition as significantly mitigating.
  • No occasion arises for the operation of the Mental Health Act 2007 or the Mental Health (Forensic Provisions) Act 1990 simply because an offender has a history of psychiatric illness, absent a present and operative mental health basis engaging those provisions.
  • In dismissing the challenge to the quality of legal representation, the Court noted that the sentencing transcript itself can be a sufficient basis for finding that proceedings were conducted properly and competently.
  • Self-represented appellants receive a broader reading of their grounds of appeal, but an appellate court will still require something beyond assertion to displace the sentencing judge's findings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 154C(2)
- Criminal Procedure Act 1986 (NSW), s 166
- Mental Health (Forensic Provisions) Act 1990 (NSW), Part 2
- Mental Health Act 2007 (NSW)

Cases:
- Ayoub and El Masri v R [2010] NSWCCA 196