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Court of Criminal Appeal 10 February 2015

Martin v R

[2015] NSWCCA 6

Other
CRIMINAL LAW SENTENCING MENTAL ILLNESS

Citation: Martin v R [2015] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 10 February 2015
Judges: Hidden J, Price J, Schmidt J

Background

The applicant pleaded guilty in the Sydney District Court to aggravated robbery and aggravated sexual assault arising from a single incident in April 2009. The offences involved choking the complainant into unconsciousness before sexually assaulting her, then threatening to kill her upon her regaining consciousness. DNA evidence linked the applicant to the offences.

The District Court sentenced the applicant to a total effective sentence of 11 years, comprising a non-parole period of 7 years and 6 months, after applying a 25 per cent discount for the utilitarian value of the guilty pleas. The sentencing judge found special circumstances given the partial accumulation of sentences and the benefit of extended supervision on parole.

The applicant, who had a well-documented history of psychiatric conditions including personality disorders, a probable paraphiliac disorder, and a depressive disorder, sought leave to appeal out of time. The Crown did not oppose the extension of time.

  • Whether the sentencing judge erred in stating that protection of the community is of increased importance when sentencing offenders with mental disorders
  • Whether the judge misapplied the principles established in Veen v The Queen (No 2) (1988) 164 CLR 465 concerning the relationship between mental illness and community protection
  • Whether the judge failed to assess the applicant's moral culpability in light of his mental disorders, as required when sentencing mentally ill offenders
  • Whether the sentence imposed on count 2 (aggravated sexual assault) was manifestly excessive

Decision

Price J, with whom Hidden J and Schmidt J agreed, found that the sentencing judge had made errors in applying the relevant principles. Her Honour had incorrectly stated that community protection is of "increased importance" when sentencing mentally ill offenders. The correct position, drawn from Veen (No 2) and subsequent Court of Criminal Appeal authority, is that a sentence should not be increased beyond what is proportionate to the offence simply because the offender is mentally ill and poses a continuing risk to the community.

On the question of moral culpability, the Court found that the sentencing judge had failed to make any express assessment of whether the applicant's mental disorders reduced his moral culpability for the offences. This was an error. Price J, re-exercising the sentencing discretion, was satisfied on the balance of probabilities that the applicant's mental disorders did slightly reduce his moral culpability.

Notwithstanding those errors, the Court concluded that the overall sentence imposed by the District Court remained appropriate. Price J was not satisfied that any other sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW). Schmidt J similarly concluded that, despite the identified error on moral culpability, no lesser sentence was warranted given the extreme seriousness of the offending and the danger the applicant continued to pose to the community.

The Court noted that considerations of specific deterrence remained properly relevant to the sentence, even though general deterrence carried reduced weight given the applicant's mental disorders.

Orders Made

  • Extension of time to seek leave to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court commits error if it states that community protection is of "increased importance" when dealing with a mentally ill offender. The principle from Veen (No 2) is that a sentence must remain proportionate to the offence and cannot be increased beyond that proportionality merely because an offender's mental illness poses a risk to the community.
  • Where an offender has documented mental disorders, the sentencing court is required to assess expressly whether those disorders reduce the offender's moral culpability. Failing to make that assessment is a sentencing error.
  • Identifying a sentencing error does not automatically produce a different outcome. Where the Court of Criminal Appeal re-exercises the sentencing discretion, it may still conclude that the original sentence was appropriate if no lesser sentence is warranted in law.
  • General deterrence appropriately receives reduced weight when sentencing a mentally ill offender, but specific deterrence remains a relevant sentencing consideration under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The finding that the applicant's mental disorders "slightly" reduced his moral culpability reflects the fact that the psychiatric evidence did not establish any link between a psychotic condition and the offending behaviour, with the disorders being personality-based rather than psychotic in nature.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 61J(1), 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A
- Criminal Appeal Act 1912 (NSW) s 6(3)

Cases
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 273 ALR 324
- R v Hemsley [2004] NSWCCA 228
- Ayshow v R [2011] NSWCCA 240
- Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
- MDZ v Regina [2011] NSWCCA 243
- Kentwell v The Queen [2014] HCA 37; (2014) 313 ALR 451
- Dawson v R [2013] NSWCCA 61