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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: Court of Criminal Appeal
Date: 27 November 2015
Judge(s): Ward JA, Davies J, RS Hulme AJ

Background

The respondent was sentenced in the District Court on 14 July 2015 for two indecent assault offences committed on the same evening against two different victims. Two further offences, an act of indecency and a second indecent assault, were taken into account on a Form 1. The assaults on the first victim occurred at her home and involved persistent and escalating physical contact, including the respondent forcing his way back into her hallway after initially being evicted. The assault on the second victim occurred at a separate address.

Evidence before the sentencing judge established that the respondent was in an acute psychotic state at the time of the offences. He was admitted to hospital as an involuntary patient following his arrest and remained there for approximately five days. Psychiatrist Dr Nielssen's opinion that the respondent was experiencing a psychotic episode at the time of the offending was unchallenged.

Huggett DCJ imposed sentences of 24 months and 10 months imprisonment respectively, to be served concurrently, with both suspended on the respondent entering into good behaviour bonds, one condition of which required him to accept recommended treatment. The Crown appealed on the ground that the sentences were manifestly inadequate.

Legal Issues

  • Whether the sentences were manifestly inadequate, having regard to the following matters raised by the Crown:
  • Whether the trial judge failed to give sufficient weight to the Form 1 offences
  • Whether the trial judge erred in treating the respondent as a person of good character given his 1992 conviction
  • Whether the trial judge erred in failing to give appropriate weight to the substantial emotional harm suffered by the first victim as an aggravating factor
  • Whether the trial judge failed to give adequate weight to the objective gravity of the offending and the principle of general deterrence

Decision

Form 1 offences: The Court confirmed that taking offences into account on a Form 1 does not universally require a longer sentence. In this case, the respondent's mental state substantially contributed to his offending and provided justification for concluding that neither personal deterrence nor retribution required an increase in punishment. The Court found it was within the legitimate range of the sentencing discretion to treat the Form 1 offences as part of a single course of criminality rather than as a basis for increasing the sentence (at [26]-[28]).

Good character: The Court found no substance in the Crown's challenge to the trial judge's treatment of the respondent's character. The 1992 conviction said nothing about his character in 2014 in the absence of any intervening misconduct. His conduct over the following 22 years, including community involvement and family responsibilities, properly supported a finding that he had been a law-abiding and positive member of the community (at [29]).

Substantial emotional harm: The Court identified a genuine error by the trial judge. The first victim's emotional harm, including PTSD, withdrawal from family and friends, and the need to change her home and job, constituted a distinct aggravating factor under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999. The trial judge had treated it as already captured by the aggravating factors of home invasion and breach of trust, but that reasoning was erroneous because substantial emotional harm is a separate consideration. The trial judge neither gave weight to that factor nor provided acceptable reasons for not doing so (at [32]-[33]).

Objective gravity and general deterrence: Despite the error on emotional harm, the Court found the sentence itself did not demonstrate a failure to account for the objective gravity of the offending. Authorities confirm that general deterrence warrants very little weight where an offender's mental disorder substantially contributed to the offending, although it is not to be disregarded entirely. The trial judge's conclusions as to the respondent's very low risk of reoffending and excellent rehabilitation prospects were well-justified on the evidence (at [39]-[40]).

Re-exercise of discretion: Because the trial judge's error on the emotional harm ground required the Court to re-exercise the sentencing discretion afresh, it independently assessed the appropriate sentence. After weighing all relevant factors, including the respondent's psychotic state, low reoffending risk, and the leniency (though not exceptional leniency) of a suspended sentence, the Court reached the same outcome as the trial judge (at [40]-[41]).

Orders Made

  • Appeal dismissed

Key Takeaways

  • Where an offender was suffering from a mental disorder that substantially contributed to the offending, general deterrence and retribution may properly receive significantly reduced weight, and this reasoning extends equally to the treatment of Form 1 offences (at [27]).

  • Substantial emotional harm to a victim under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 is a distinct aggravating factor, separate from the statutory factors relating to breach of trust and offending in the victim's home. Treating it as already subsumed by those other factors constitutes an error requiring the appellate court to re-exercise the sentencing discretion (at [32]-[33]).

  • A prior conviction does not necessarily undermine a finding of good character at the time of sentencing. Where some 22 years of law-abiding and positive conduct intervened, the Court of Criminal Appeal confirmed that relying on that subsequent conduct as a basis for leniency was justified (at [29]).

  • In dismissing the appeal, the Court reaffirmed that a suspended sentence, while significantly more lenient than a custodial sentence, is not necessarily manifestly inadequate. The question is whether the sentence falls outside the legitimate range of discretion given all the circumstances, including the offender's mental state (at [40]-[41]).

  • An appellate court that identifies a sentencing error is obliged to re-exercise the discretion afresh, but reaching the same outcome as the sentencing judge remains open where the overall circumstances support it (at [40]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999

Cases
- 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; 137 A Crim R 180; [2002] NSWCCA 518
- DPP v De La Rosa (2010) 79 NSWLR 1
- Kentwell v The Queen [2014] 37; 252 CLR 601; 238 A Crim R 134
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Palijan v R [2010] NSWCCA 142
- R v Ball [2013] NSWCCA 126
- R v Cahill [2015] NSWCCA 53
- R v RM [2015] NSWCCA 4