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Court of Criminal Appeal 27 November 2015

R v Mueller

[2015] NSWCCA 292

Sexual offences
INDECENT ASSAULT OFFENCES TAKEN INTO ACCOUNT MENTAL DISORDER ACUTE PSYCHOTIC STATE SENTENCE NOT INADEQUATE

Citation: R v Mueller [2015] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 27 November 2015
Judge(s): Ward JA, Davies J, RS Hulme AJ

Background

The respondent pleaded guilty to aggravated break and enter and commit a serious indictable offence (indecent assault) and a separate indecent assault against a different victim. Two further offences, an act of indecency and another indecent assault, were taken into account on a Form 1. All offences occurred on the same evening in April 2014.

The offences involved the respondent forcing his way into a neighbour's home on two occasions and committing indecent assaults on her, and separately grabbing the breast of a woman at another address. Psychiatric evidence, which was unchallenged, established that the respondent was in an acute psychotic state at the time of the offending. He was admitted to hospital as an involuntary patient shortly after his arrest.

In the District Court, Huggett DCJ sentenced the respondent to concurrent terms of 24 months and 10 months imprisonment, both suspended on entering into good behaviour bonds. The bonds included a condition requiring the respondent to accept all treatment recommended by his psychiatrist. The Crown appealed on the ground that the sentences were manifestly inadequate.

  • Whether the sentencing judge erred by treating the Form 1 offences as not warranting an increase to the sentence for the primary offence, given their temporal proximity.
  • Whether the sentencing judge erred in finding that the respondent was of good character.
  • Whether the sentencing judge erred in failing to treat the substantial psychological harm suffered by the victim as an aggravating factor, and in concluding that giving it weight would amount to double counting.
  • Whether the sentencing judge failed to give adequate weight to the objective gravity of the offending and considerations of general deterrence.
  • Whether the overall sentence was manifestly inadequate.

Decision

The Court of Criminal Appeal dismissed the appeal. RS Hulme AJ (with Ward JA and Davies J agreeing) addressed each ground in turn and found that, while the sentencing judge made an error in not giving appropriate consideration to the substantial emotional harm suffered by the primary victim, that error obliged the Court to exercise the sentencing discretion afresh. Doing so, the Court reached the same result as the sentencing judge.

On the question of general deterrence, the Court applied the principle confirmed in Muldrock v The Queen that general deterrence should be afforded very little weight where an offender was suffering from a mental disorder at the time of offending, because such a person is not an appropriate vehicle for making an example to others. This did not mean deterrence was entirely irrelevant, but on the particular facts, the respondent's acute psychotic state and his low assessed risk of reoffending strongly justified the sentencing approach taken.

The Court acknowledged that a suspended sentence is significantly more lenient than a custodial sentence, and that there are cases where this Court has found suspended sentences too lenient. However, it accepted that while the sentence could fairly be described as lenient, it was justified by the respondent's circumstances and could not be characterised as exceptionally lenient. The combination of the acute psychotic episode, the 25 per cent plea discount, the respondent's low risk of reoffending, and his excellent prospects of rehabilitation supported the outcome.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that general deterrence should carry very little weight in sentencing an offender whose mental disorder substantially contributed to the offending, consistent with the High Court's statement in Muldrock v The Queen.
  • A finding that a sentencing judge made an error does not automatically result in a different sentence on appeal. Where the Court exercises the sentencing discretion afresh, it may reach the same conclusion as the sentencing judge if the overall outcome remains within the appropriate range.
  • Suspended sentences are not precluded for serious sexual offences where exceptional subjective circumstances, including an acute psychotic state at the time of offending and a very low risk of reoffending, are established on the evidence.
  • An unchallenged psychiatric opinion that the offender was psychotic at the time of offending carries significant weight in the sentencing exercise and can substantially reduce the role of both general and specific deterrence.
  • Where Form 1 offences are closely connected in time and circumstance to the primary offence, a sentencing court may treat them as having limited independent effect on the head sentence, though this remains a matter of fact and degree in each case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Kentwell v The Queen [2014] 252 CLR 601; 238 A Crim R 134
- R v RM [2015] NSWCCA 4
- R v Ball [2013] NSWCCA 126
- R v Cahill [2015] NSWCCA 53
- Palijan v R [2010] NSWCCA 142
- DPP v De La Rosa (2010) 79 NSWLR 1
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146