AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 30 November 2015

Phanekham v R

[2015] NSWCCA 295

Homicide
CRIMINAL LAW APPEAL SENTENCE APPLICANT CONVICTED OF MANSLAUGHTER APPEAL DISMISSED

Citation: Phanekham v R [2015] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 30 November 2015
Judges: Ward JA, Adams J, Bellew J

Background

The applicant was convicted of manslaughter following a fatal stabbing of his neighbour in June 2012 at Ambarvale in NSW. The victim had been heavily intoxicated and behaved aggressively toward neighbours and his former partner before confronting the applicant in the street. The applicant took a knife (and possibly a second) from his home and stabbed the victim, who died from the wound shortly after. The jury acquitted the applicant of murder but found him guilty of manslaughter.

At sentencing, the applicant was given a non-parole period of six years' imprisonment commencing on the date of the offence, with a balance of term of two years. A psychiatric report from Dr Olav Nielssen was tendered at the sentence proceedings. It diagnosed the applicant with dysthymic disorder (chronic depression), a substance abuse disorder (in remission), and traumatic brain injury stemming from a childhood head injury.

The applicant sought leave to appeal his sentence on the ground that the sentencing judge had failed to have proper regard to his mental health in a principled fashion.

  • Whether the sentencing judge erred by failing to give proper and principled consideration to the applicant's mental health when imposing sentence.
  • Whether the sentencing judge was wrong to find no causal connection between the applicant's mental state and his offending.
  • Whether the sentencing judge erred in treating general and specific deterrence as significant sentencing considerations, notwithstanding the psychiatric evidence.
  • Whether injustice arose from the failure of trial counsel to make submissions at sentencing about the applicant's mental state, specifically that it made him an inappropriate vehicle for general deterrence or that it would render his conditions of custody more onerous.

Decision

The Court noted that at the original sentencing hearing, defence counsel had not made two potentially important submissions: first, that the applicant's mental condition made him an inappropriate vehicle for general deterrence; and second, that the mental condition would render his period of custody more onerous than it would otherwise be. Those arguments were raised for the first time on appeal.

The sentencing judge had found that the psychiatric evidence did not establish a causal connection between the applicant's mental state and his offending. The sentencing judge was accordingly satisfied that deterrence remained a significant factor. The Court of Criminal Appeal found no error in that reasoning, accepting that the sentencing judge had engaged with the psychiatric evidence and reached a conclusion open to him on the facts.

On the question of whether injustice arose from the failure of counsel at first instance to advance the mental health submissions, the Court applied the principle established in cases including Dicianni v R; Pintabona v R [2015] NSWCCA 201: ordinarily, a sentencing judge cannot be said to have erred in failing to take a matter into account when no submission was made about it. A serious injustice must be shown before the Court will intervene on that basis.

The Court found no such injustice on the evidence. The affidavit material filed by the applicant did not demonstrate that his mental condition was materially adversely affecting his period in custody. His difficulties in custody appeared to originate largely from the conduct of other inmates, a circumstance not uncommon in prison. The applicant's condition was being appropriately treated and assessments of him were described as generally positive. The ground of appeal therefore failed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge cannot ordinarily be found to have erred by failing to take a matter into account when no submission was made about that matter at first instance.
  • A serious injustice must be demonstrated before the Court will entertain arguments on appeal that could have been, but were not, advanced at the sentencing hearing below.
  • Where a psychiatric report is tendered at sentencing but counsel does not submit that the applicant's mental state makes him an inappropriate vehicle for general deterrence, or that custody will be rendered more onerous, those arguments face a high bar if raised for the first time on appeal.
  • No error was established in the sentencing judge's conclusion that deterrence remained significant where the psychiatric evidence did not establish a causal connection between the applicant's mental condition and the offending.
  • Difficulties in custody that originate substantially from the conduct of other inmates, rather than from an applicant's mental health condition itself, are unlikely on their own to demonstrate the kind of serious injustice required to succeed on this type of appeal ground.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Phanekham (No 3) [2014] NSWSC 508 (sentencing judgment under appeal)
- Dicianni v R; Pintabona v R [2015] NSWCCA 201
- Iskandar v R [2013] NSWCCA 235
- Romero v R [2011] VSCA 45; (2011) 32 VR 486
- R v Engert (1995) 84 A Crim R 67