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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: [2015] NSWCCA 320
Court: Court of Criminal Appeal
Date: 16 December 2015
Judge(s): Beazley P and Davies J (majority); R S Hulme AJ (dissenting on Ground 1)

Background

The appellant was a 21-year-old art student with a documented history of mental illness, later diagnosed with schizophrenia. In the early hours of 23 September 2012, he stabbed a stranger at a hotel on Oxford Street, inflicting a wound to the victim's abdomen that penetrated to the muscle layer. The incident was captured on CCTV. It was not disputed that the appellant caused the wound; the central question at trial was his mental state at the time.

At trial before Culver DCJ and a jury in the District Court, the appellant raised the defence of mental illness. All four medical experts agreed he was suffering from a disease of the mind at the time of the incident. The jury found him not guilty of the principal charge of wounding with intent to cause grievous bodily harm, but guilty of the alternative charge of reckless wounding under section 35(4) of the Crimes Act 1900 (NSW). The jury's verdict also rejected the mental illness defence. He was sentenced to three years' imprisonment with an 18-month non-parole period.

The appellant appealed against his conviction on two grounds and sought leave to appeal against his sentence on two further grounds.

Legal Issues

  • Whether the cross-examination of the appellant by the Crown Prosecutor was so unfair as to constitute a miscarriage of justice, particularly given his mental illness and the effects of antipsychotic medication
  • Whether the trial judge erred in failing to direct the jury that the capacity to know one's actions were "wrong" under the M'Naghten test was not the same as knowing those actions were legally wrong
  • Whether the trial judge failed to give adequate weight to the appellant's mental illness in sentencing, including by drawing impermissible inferences from the jury's verdict
  • Whether the trial judge erred in allowing only a 15 per cent discount for the appellant's repeated offers to plead guilty to the offence of which he was ultimately convicted

Decision

Ground 1: Fairness of cross-examination

The majority (Beazley P and Davies J) dismissed this ground. Although individual instances of compound questions, factually questionable propositions, and occasional sarcasm were identified, the majority concluded that none, individually or cumulatively, produced unfairness warranting appellate intervention (at [95]). The trial judge had intervened appropriately on each occasion that confusion or error arose, and the cross-examination, though conducted in a combative atmosphere, did not cross the line into impermissible unfairness (at [88], [95]).

R S Hulme AJ dissented. His Honour considered that the cross-examination involved a series of prejudicial assertions without proper factual foundation, compound and repetitive questioning, and sarcastic or aggressive conduct that was inappropriate given the appellant's mental illness and medicated state (at [164], [194], [195]). In his Honour's view, the accumulation of these errors was liable to have affected the jury's assessment of the appellant's credibility, which was central to the mental illness defence (at [195]). His Honour would have quashed the conviction (at [196]).

Ground 2: Jury directions on mental illness

The majority refused leave to raise this ground. The trial judge's directions on the defence of mental illness were adequate, applying the principles established in the relevant authorities (at [108], [123]). The majority found that Stapleton v R did not authority for the proposition that a jury must always be specifically directed that the "wrongfulness" limb of the M'Naghten test concerns moral wrongfulness rather than legal wrongfulness. The error identified in Stapleton arose from a specific misdirection given in that case, which was absent here (at [118], [119], [122]).

Sentence Ground 3: Weight given to mental illness

The court identified multiple errors in the sentencing judge's remarks. The trial judge incorrectly concluded that the jury's rejection of the mental illness defence meant they had rejected any possibility that the appellant was delusional or impaired in understanding that his actions were wrong (at [135]). A jury finding that the defence was not established on the balance of probabilities does not exclude the possibility that the appellant was impaired to some degree, a matter directly relevant to moral culpability. The trial judge further erred in concluding, on the basis of the appellant passing the knife to another person after the stabbing, that any impairment in his capacity to appreciate wrongfulness was "not great at all, or even significant," given that the psychiatric evidence uniformly pointed the other way (at [139]). General deterrence also had no real role in the sentencing process where mental illness contributed materially to the offending (at [146]).

Sentence Ground 4: Discount for offers to plead guilty

The trial judge allowed a 15 per cent discount for the appellant's multiple offers to plead guilty to reckless wounding, the offence of which he was ultimately convicted. The court held this was insufficient. An offer to plead guilty to the offence of which an accused is ultimately convicted carries utilitarian value that should be recognised even where the matter proceeded to trial on a more serious charge. The appropriate discount for the utilitarian value of the July 2013 offer to plead guilty to the indictable offence was approximately 20 per cent (at [152]).

On resentencing, the court imposed a head sentence of two years and six months with a non-parole period of 13 months, noting that the conditions of imprisonment had been particularly onerous given the appellant's mental health needs and the difficulties he had experienced in obtaining treatment and medication in custody (at [157], [158]).

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentence imposed by the trial judge quashed; in lieu, the appellant sentenced to imprisonment for 2 years and 6 months commencing 21 November 2014, with a non-parole period of 13 months
  • Appellant directed to be released to parole on 21 December 2015

Key Takeaways

  • A jury's rejection of the mental illness defence does not entitle a sentencing court to conclude that the offender was not impaired in appreciating the wrongfulness of their actions; the verdict means only that the defence was not established on the balance of probabilities, leaving open the possibility of partial impairment relevant to moral culpability (at [135], [139]).

  • Where an offender's mental illness contributes materially to the offending conduct, general deterrence has little or no role to play in the sentencing process, consistent with the principles in De La Rosa (at [146]).

  • The utilitarian value of an offer to plead guilty to the charge of which an accused is ultimately convicted must be properly recognised in sentencing, even where the matter proceeded to trial on a more serious charge and the offer was conditional or made at an intermediate stage (at [152]).

  • In the majority's view, the M'Naghten direction given at trial did not require supplementation with a specific explanation distinguishing moral wrongfulness from legal wrongfulness unless the trial judge had affirmatively misdirected the jury on the point, as had occurred in Stapleton (at [118], [122], [123]).

  • The dissent in this decision illustrates that, where an accused is mentally unwell and medicated, the cumulative effect of aggressive, factually unfounded, or repetitive cross-examination may, in some circumstances, be sufficient to render a trial unfair, even if individual instances might not independently warrant intervention (at [164], [195]). The majority did not accept this conclusion on the facts.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Legal Profession Uniform Conduct (Barristers) Rules 2015

Cases
- ARS v R [2011] NSWCCA 266
- Da-Pra v R [2014] NSWCCA 211
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- GWM v R [2012] NSWCCA 240
- Hassan v R [2010] VSC 352
- Jubraeel v R [2015] NSWCCA 131
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Libke v The Queen [2007] HCA 30; 230 CLR 559
- Morton v R [2014] NSWCCA 8
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Anderson [2012] NSWCCA 175
- R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535
- R v Hamouche [2005] NSWCCA 398; 158 A Crim R 357
- R v Israil [2002] NSWCCA 255
- R v Mooney (Court of Criminal Appeal (Vic), 21 June 1978, unreported)
- R v Oinonen [1999] NSWCCA 310
- R v Pratt [2009] NSWSC 1108
- R v Windle (1952) 2 QB 826
- R v Z [2006] NSWCCA 342
- Stapleton v R [1952] HCA 56; 86 CLR 358
- ZZ v R [2013] NSWCCA