AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 25 November 2015

Nairn v R

[2015] NSWCCA 290

Assault & violence
SENTENCING VIOLENT RAMPAGE MULTIPLE VICTIMS APPLICANT SUFFERED FROM MENTAL ILLNESS WHETHER SENTENCE MANIFESTLY EXCESSIVE RELEVANCE OF MENTAL ILLNESS

Citation: Nairn v R [2015] NSWCCA 290
Court: Court of Criminal Appeal, NSW
Date: 25 November 2015
Judges: Johnson J, Beech-Jones J, R.S. Hulme AJ

Background

The applicant was sentenced in the District Court following a violent attack on the evening of 30 September 2013 at a house in Hurstville. He stabbed one victim 33 times, causing the loss of an eye and a punctured lung, robbed a second victim at knifepoint, threatened a third, and stole a mobile phone. A Form 1 offence of stalking and intimidation was also taken into account, arising from threats made to a former partner three days earlier.

The District Court imposed an aggregate sentence of 12 years' imprisonment, with a non-parole period of 7 years and 6 months. The indicative sentence for the primary offence, wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900, was 7 years with an additional term of 4 years.

The applicant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the aggregate sentence was manifestly excessive, focusing particularly on how the sentencing judge dealt with his mental illness.

  • Whether the aggregate sentence of 12 years' imprisonment was manifestly excessive.
  • Whether the sentencing judge gave appropriate weight to the applicant's mental illness as a mitigating factor.
  • Whether sentencing statistics for the relevant offence were indicative of error in the indicative sentence for the primary offence.

Decision

Beech-Jones J (with whom Johnson J and Hulme AJ agreed) rejected the sole ground of appeal. His Honour found that the aggregate sentence was not manifestly excessive, having regard to the extreme violence inflicted on the first victim, the applicant's poor criminal record, and the weakness of his subjective case overall.

On the question of mental illness, Beech-Jones J applied the well-established principle from Veen v R (No 2) (1988) 164 CLR 465 that the factors relevant to mentally ill offenders can operate against each other. While mental illness may reduce moral culpability and attract a degree of leniency, it also informs the assessment of the offender's danger to the community. In this case, the ameliorating effect of the applicant's mental illness was negated by the finding that he posed a significant danger to society.

On the sentencing statistics, the Court acknowledged that only one of 197 offenders sentenced for the primary offence between 2008 and 2014 received a sentence exceeding 12 years. However, the Court noted that the statistics did not permit a detailed comparison of the distinctive features of each case. The level of violence and the severity of harm inflicted on the first victim in this case were described as very significant, and the Court was not persuaded that either the indicative sentence or the aggregate sentence was outside the proper range.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • Under the principle established in Veen v R (No 2), the factors arising from an offender's mental illness can negate each other: a reduction in moral culpability may be counterbalanced by the finding that the offender poses a danger to society, leaving the overall sentence largely unchanged.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing statistics serve as a yardstick against which to examine a proposed sentence, but they do not mark the outer limit of the sentencing discretion, and their utility depends on whether the distinctive features of the offence can be properly compared.
  • An aggregate sentence of 12 years for a series of violent offences, including a stabbing causing permanent disfigurement and ongoing psychiatric harm to the primary victim, was held not to be manifestly excessive where the offender had a poor criminal record and a weak subjective case.
  • The applicant's evidence that he was turned away from a mental health unit for geographic reasons, and was not prescribed medication despite reporting hallucinations to a general practitioner, was accepted by the sentencing judge and factored into the mental illness analysis.
  • No error was established in the sentencing judge's treatment of the mental illness evidence, nor in the indicative sentence for the primary offence of wounding with intent to cause grievous bodily harm.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 33(1)(a), 47, 97(1), 114(1)(a), 117
- Crimes (Domestic and Personal Violence) Act 2007 (NSW): s 13(1), s 32(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 44(2C), 53A(2), 54B(4)

Cases:
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- Barbaro v The Queen [2014] HCA 2; 253 CLR 58
- The Queen v Pham [2015] HCA 39
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Engert v R (1995) 84 A Crim R 67
- Beale v R [2015] NSWCCA 120
- PD v R [2012] NSWCCA 242
- SHR v R [2014] NSWCCA 94