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12
Court of Criminal Appeal 12 September 2014

Pym v R

[2014] NSWCCA 182

Assault & violence
CRIMINAL LAW SENTENCE APPEAL WOUNDING WITH INTENT TO MURDER

Citation: Pym v R [2014] NSWCCA 182
Court: NSW Court of Criminal Appeal
Date: 12 September 2014
Judges: Hoeben CJ at CL, Price J, Fullerton J (all agreeing)

Background

The appellant pleaded guilty on arraignment to one count of wounding with intent to murder and one count of wounding with intent to cause grievous bodily harm, both under the Crimes Act 1900 (NSW). Each offence carries a maximum penalty of 25 years imprisonment. After a 10 per cent discount for the guilty pleas, the sentencing judge in the District Court imposed a total effective sentence of 20 years imprisonment with a non-parole period of 14 years.

A forensic psychiatrist, Dr Richard Furst, had prepared multiple reports on the appellant's mental state. At the sentencing proceedings, trial counsel tendered only a redacted version of the third report, omitting Dr Furst's opinion that the appellant was likely in a dissociative mental state at the time of the offences. The earlier two reports, which Dr Furst had stipulated were to be read together with the third, were not tendered at all.

The appellant sought leave to appeal out of time, arguing that the failure to place the complete psychiatric evidence before the sentencing judge resulted in a miscarriage of justice and that the sentences were manifestly excessive.

  • Whether the omission to tender the complete and unredacted psychiatric evidence at the sentencing hearing constituted a miscarriage of justice.
  • Whether the sentences imposed were manifestly excessive (Ground 2).

Decision

The Court focused on the state of the psychiatric evidence placed before the sentencing judge. Counsel at sentence had chosen to tender only a redacted version of Dr Furst's third report, omitting his opinion that the appellant was likely in an altered state of consciousness at the time of the offending, along with the supporting material and analysis. The two earlier reports, which were available and which Dr Furst had said should be read together with the third, were also not tendered. Counsel's reasoning included concerns that references to automatism might be treated as a traverse of the guilty plea, and that the opinion was expressed only in terms of "reasonable possibilities" rather than certainty.

The Court accepted that an offender's mental condition, even if it would have supported a complete defence that was abandoned through a plea of guilty, remains relevant to the sentencing exercise. This applies to considerations of moral culpability, objective criminality, and future dangerousness. An appellant's mental health at the time of offending is not foreclosed as a mitigating factor simply because the appellant has pleaded guilty.

Fullerton J concluded that the sentencing judge was unable to afford any meaningful weight to the redacted report because the foundational material supporting Dr Furst's opinion was absent. Had the full picture been before the sentencing court, the findings made about the appellant's mental state at the time of the offences would not have been available on the evidence. The sentencing proceedings had therefore miscarried. Given this conclusion, the Court found it unnecessary to address the manifest excess ground.

Orders Made

  • Leave to extend time for bringing the appeal granted.
  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Sides DCJ on 4 June 2012 quashed.
  • Matter remitted to the District Court at Parramatta for a fresh sentencing hearing.

Key Takeaways

  • A sentencing court must have complete and accurate information about an offender's mental state at the time of offending; a redacted or partial psychiatric report that omits the expert's diagnosis and reasoning can deprive the sentencing exercise of essential material.
  • Under established NSW sentencing principles (confirmed by reference to DPP (Cth) v De La Rosa), an offender's mental condition is relevant to the sentencing exercise regardless of whether a guilty plea was entered and regardless of whether that condition might have grounded a complete defence at trial.
  • An offender's mental illness or impaired capacity at the time of offending may be relevant to the assessment of moral culpability, objective criminality, and future dangerousness, even where automatism or mental illness defences were consciously abandoned.
  • The Court of Criminal Appeal declined to express any view on how the remitted sentencing proceedings should be conducted, leaving questions of evidence and procedure to the judgment of the parties in the District Court.
  • Where a miscarriage of justice in the sentencing proceedings is established on psychiatric evidence grounds, the appropriate remedy may be to remit the matter for a wholly fresh sentencing hearing rather than for the appellate court to resentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- McLaren v R [2012] NSWCCA 284
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
- Madden v R [2011] NSWCCA 254
- Devaney v R [2012] NSWCCA 285
- Elturk v R [2014] NSWCCA 61
- Miles v R [2014] NSWCCA 72