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22
Court of Criminal Appeal 17 April 2014

Elturk v R

[2014] NSWCCA 61

Also reported as (2014) 239 A Crim R 584
Assault & violence
CRIMINAL LAW SENTENCE OBJECTIVE SERIOUSNESS OF OFFENCE MORAL CULPABILITY MENTALLY ILL OFFENDER SENTENCE

Citation: Elturk v R [2014] NSWCCA 61
Court: NSW Court of Criminal Appeal
Date: 17 April 2014
Judges: Beazley P (with RA Hulme J and Schmidt J agreeing)

Background

The appellant, a 40-year-old man with a long history of mental illness, pleaded guilty to stealing a knife and to wounding with intent to cause grievous bodily harm. The victim was his father. At the time of the offence, the appellant was in an acute psychotic state, believing his father was the devil, and had not slept for four nights beforehand. His father described him as appearing expressionless, as if in a trance.

A psychiatrist, Dr Nielssen, concluded that the defence of mental illness was open to the appellant and that a special verdict of not guilty by reason of mental illness would benefit both the accused and the community. The Crown applied to have the guilty pleas rejected in favour of that outcome. The trial judge in the District Court refused the application and proceeded to sentence the appellant.

When sentencing, Nicholson DCJ reasoned that because the appellant had chosen not to rely on the mental illness defence, his mental condition could not be taken into account in assessing the objective seriousness of the offence. The trial judge also treated the apparent irrationality and malice of the attack as aggravating factors in the absence of a mental illness explanation. The appellant was sentenced to eight years' imprisonment with a non-parole period of four years. He appealed on the basis that the sentencing judge had dealt with his mental illness in error.

  • Whether an offender who pleads guilty and does not rely on the defence of mental illness thereby waives the right to have mental illness considered as a mitigating factor in sentencing.
  • Whether an offender's mental state at the time of the offence is relevant to assessing moral culpability and the objective seriousness of the offence.
  • Whether the sentence imposed was proportionate to the criminality, given the offender's mental condition and its effect on moral culpability.

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in treating the appellant's mental illness as irrelevant to sentencing. Beazley P, with whom both other judges agreed, held that by pleading guilty the appellant had not waived any right to have his mental illness considered as a causal factor in the commission of the offence. The decision not to rely on the mental illness defence determined criminal responsibility, but it had no bearing on how mental state should inform the assessment of moral culpability at sentencing.

The Court confirmed that an offender's mental state at the time of offending is directly relevant to the objective seriousness of the offence. The sentencing judge's further step, treating the unexplained irrationality and malice as aggravating features because no mental illness defence had been raised, compounded the error. The appellant's acute psychosis was precisely the explanation for that behaviour, and the court found it was wrong to use the absence of the defence as a basis for treating those features adversely.

The Court acknowledged that sentencing mentally ill offenders involves competing tensions between moral culpability (which may be reduced) and the protection of the community (which may call for a longer sentence). However, Beazley P was clear that the sentence must remain proportionate to the criminality of the offence. In this case, the sentence failed to make appropriate allowance for the appellant's mental condition and low moral culpability, and a different sentence was warranted.

Balancing the reduced culpability against the seriousness of the offence, the appellant's limited insight into his illness, his history of non-compliance with medication, and the danger he posed when unmedicated, the Court resentenced the appellant to a non-parole period of three years and six months, with a balance of term of three years (total sentence of six and a half years).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 5 October 2012 quashed.
  • Appellant resentenced to imprisonment comprising a non-parole period of 3 years 6 months and a balance of term of 3 years, dating from 3 January 2011, with earliest parole eligibility on 2 July 2014 and total term expiring 2 July 2017.

Key Takeaways

  • A guilty plea does not waive an offender's right to have mental illness considered as a causal factor when assessing moral culpability and the objective seriousness of an offence at sentencing.
  • Declining to raise the defence of mental illness determines only the question of criminal responsibility; it does not strip mental illness of its relevance to the sentencing exercise.
  • Where an offender's irrational or apparently malicious conduct at the time of the offence is caused by mental illness, it is an error to treat that conduct as an aggravating feature simply because the offender did not rely on the mental illness defence.
  • Competing considerations arise when sentencing mentally ill offenders: reduced moral culpability may point to a lighter sentence, while the need to protect the community may point in the opposite direction. The Court of Criminal Appeal confirmed that any sentence imposed must nonetheless remain proportionate to the criminality involved.
  • In resentencing, the court balanced reduced culpability against factors including the gravity of the offence, the appellant's limited insight, his history of medication non-compliance, and the acute danger he presented when psychotic.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38

Cases
- McLaren v Regina [2012] NSWCCA 284
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Muldrock v The Queen [2012] NSWCCA 108
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- R v Engert (1995) 84 A Crim R 67
- Bugmy v The Queen [1990] HCA 18
- Power v The Queen [1974] HCA 26; 131 CLR 623
- The Queen v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported)