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Court of Criminal Appeal 16 December 2015

Skelton v R

[2015] NSWCCA 320

Assault & violence
CRIMINAL LAW APPEAL APPELLANT STABBED STRANGER DIRECTIONS TO JURY SENTENCING SENTENCING

Citation: Skelton v R [2015] NSWCCA 320
Court: Court of Criminal Appeal
Date: 16 December 2015
Judges: Beazley P and Davies J (majority); R S Hulme AJ (dissenting on conviction appeal)

Background

The appellant was an art school student who, in the early hours of 23 September 2012, stabbed a stranger at the Brighton Hotel on Oxford Street, Sydney. The incident was captured on the hotel's CCTV system. The victim received three stitches and was briefly hospitalised. The appellant had attended his school's end of year ball earlier that evening, acquired a folding knife there, and gave evidence that he "blanked out" and had no memory of the stabbing.

The appellant had a history of mental illness, including ADHD treatment from age seven and prior treatment for depression and anxiety. Following bail, he was diagnosed with schizophrenia while an inpatient at a mental health clinic. The defence of mental illness was raised at trial.

At trial before Culver DCJ, the jury found the appellant not guilty of the principal charge of wounding with intent to cause grievous bodily harm, but guilty of the alternative count of reckless wounding under s 35(4) of the Crimes Act 1900 (NSW). He was sentenced to three years' imprisonment with a non-parole period of 18 months.

  • Whether the Crown Prosecutor's cross-examination of the appellant was conducted unfairly, so as to occasion a miscarriage of justice
  • Whether the trial judge's directions to the jury on the mental illness defence were adequate, particularly regarding whether the "second branch" of the M'Naghten test (capacity to know one's actions were wrong) required a direction that "wrong" did not simply mean "illegal"
  • Whether the sentencing judge gave insufficient weight to the appellant's mental illness when assessing his moral culpability
  • Whether the sentencing judge gave an insufficient discount for the appellant's offer to plead guilty to the reckless wounding charge

Decision

Ground 1: Cross-examination (majority). Beazley P and Davies J held that, while some elements of the cross-examination may have been objectionable and the appellant was at times confused, any unfairness was addressed through further questioning or appropriate management by the trial judge. The cumulative effect did not rise to the level warranting appellate intervention. Hulme AJ dissented on this ground, finding the cross-examination was combative, aggressive, and based in part on inaccurate or inadequate factual foundations. In his Honour's view, the accumulation of errors by the prosecutor was unfair and was liable to have affected the jury's assessment of the appellant.

Ground 2: Mental illness directions. The majority held the trial judge's directions were adequate. There is no requirement that a jury be directed that the test for whether a person knew their actions were "wrong" (the second branch of the M'Naghten rules) is not simply concerned with whether the person knew their actions were illegal. The Court drew on Stapleton v R (1952) 86 CLR 358 and R v Windle [1952] 2 QB 826 in reaching that conclusion.

Sentencing: mental illness and moral culpability. The full Court allowed the sentence appeal. The sentencing judge erred in proceeding on the basis that she was bound by the jury's verdict to treat any impairment in the appellant's ability to appreciate that his actions were wrong as not significant. The jury's verdict left open the possibility that the appellant was impaired in that capacity to some degree, and that possibility was required to be taken into account in assessing moral culpability. The Court also found that general deterrence had no real role to play in sentencing, given the appellant's significant mental illness.

Sentencing: guilty plea discount. The Court found the sentencing judge had not given sufficient allowance for the utilitarian value of the appellant's offer to plead guilty to the reckless wounding charge in the District Court, being the offence of which he was ultimately convicted. The appropriate discount was assessed at 20 per cent rather than the 15 per cent applied below.

Orders Made

• Ground 1 is upheld

Key Takeaways

  • A sentencing court is not bound to treat a jury's verdict on mental illness as conclusively determining the extent of a defendant's impairment for sentencing purposes; where the verdict leaves open the possibility of some degree of impairment, that possibility must be factored into the assessment of moral culpability.
  • General deterrence carries little or no weight when sentencing an offender whose offending is substantially connected to significant mental illness.
  • The second branch of the M'Naghten test, requiring that a defendant understood their actions were "wrong", does not, as a matter of law, require a jury direction clarifying that "wrong" means more than mere illegality; the Court of Criminal Appeal held no such direction was necessary in this case.
  • In dismissing the conviction appeal (by majority), the Court confirmed that cross-examination issues not the subject of objection at trial face a high threshold for appellate intervention, even where some elements of the questioning may have been objectionable.
  • Utilitarian discounts for an early offer to plead guilty to an alternative charge should reflect the genuine saving to the criminal justice system; the Court increased the discount from 15 to 20 per cent in these circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A
- Criminal Appeal Act 1912 (NSW), s 5(1)(a), (c)
- Evidence Act 1995 (NSW), ss 41, 44
- Legal Profession Uniform Conduct (Barristers) Rules 2015, r 61

Cases
- Stapleton v R [1952] HCA 56; 86 CLR 358
- R v Windle [1952] 2 QB 826
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- R v Israil [2002] NSWCCA 255
- R v Z [2006] NSWCCA 342
- GWM v R [2012] NSWCCA 240
- Morton v R [2014] NSWCCA 8
- R v Hamouche [2005] NSWCCA 398; 158 A Crim R 357
- R v Oinonen [1999] NSWCCA 310
- R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535
- Hassan v R [2010] VSC 352
- R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported)