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District Court 1 December 2015

R v Colin Robert Debrincat

[2015] NSWDC 290

Assault & violenceTheft & propertyFirearms & weapons
AGGRAVATED ROBBERY RECKLESS WOUNDING SENTENCING OF FORENSIC PATIENT

Citation: R v Colin Robert Debrincat [2015] NSWDC 290
Court: District Court of New South Wales
Date: 1 December 2015
Judge: Mahony SC DCJ

Background

The offender appeared for sentencing on two separate offences committed more than a decade apart. The first was an aggravated robbery in January 2002, in which the offender struck a security guard outside a Sydney bank and stole the guard's revolver. The second was a reckless wounding committed in October 2013, while the offender was on remand at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater. On that occasion, he slashed a fellow inmate's throat with a Stanley knife.

The offender's mental health history was central to the sentencing proceedings. He had been diagnosed with paranoid schizophrenia in 2000, received anti-psychotic medication for a period, but had his medication gradually discontinued from 2007 without further psychiatric treatment. He had been on remand since 3 October 2013 on charges of murder. In July 2015, the Supreme Court found him not guilty of murder by reason of mental illness and ordered that he be detained as a forensic patient, subject to ongoing oversight by the Mental Health Review Tribunal.

Expert evidence was provided by Professor David Greenberg, who concluded that the offender was suffering from chronic paranoid schizophrenic disorder at the time of the wounding offence and had a defence of mental illness available to him. The offender pleaded guilty to the reckless wounding charge on arraignment in November 2015, and had earlier been committed for sentence on the robbery charge.

  • What weight should be given to the offender's mental illness (paranoid schizophrenic disorder) as a mitigating factor in sentencing?
  • How should the principles from DPP (Cth) v De La Rosa [2010] NSWCCA 194 apply when sentencing an offender whose mental illness contributed to the offending?
  • How should custodial sentences be structured, given the offender's existing status as a forensic patient under the Mental Health (Forensic Provisions) Act 1990?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a variation of the standard ratio between non-parole period and total sentence.

Decision

Mahony SC DCJ accepted that the offender's chronic paranoid schizophrenic disorder was relevant to sentencing on the reckless wounding charge. Applying the principles from De La Rosa, the court found that the mental illness reduced the offender's moral culpability for that offence, diminished the relevance of general and specific deterrence, and meant that custody was likely to weigh more heavily on him than on a person without that condition.

The court noted that the offender had made full admissions in respect of the wounding, cooperated with police regarding how he obtained the firearm involved in the 2002 robbery, and had been in continuous custody since 3 October 2013. These matters were accepted as mitigating factors, though the court also acknowledged the offender's significant criminal history involving multiple offences of violence, which precluded further leniency.

Both sentences were structured to account for the entire period already served in custody, with non-parole periods backdated to 3 October 2013 and expiring on 2 December 2015 (effectively the date of sentencing). The court directed that any balance of each term to be served following the non-parole period would be served in the offender's capacity as a forensic patient, preserving the Mental Health Review Tribunal's oversight role.

The court also directed that its sentencing remarks and Professor Greenberg's report be forwarded to the Mental Health Review Tribunal, ensuring the Tribunal had full information relevant to the offender's continued management and potential release.

Orders Made

Aggravated Robbery (s 95(1) Crimes Act 1900):
- Convicted of aggravated robbery
- Non-parole period of 2 years and 2 months, commencing 3 October 2013 and expiring 2 December 2015
- Balance of term of 2 years, commencing 3 December 2015 and terminating 2 December 2017
- Any balance of term to be served as a forensic patient, subject to any Probation and Parole Board determination

Reckless Wounding (s 35(4) Crimes Act 1900):
- Convicted of reckless wounding
- Non-parole period of 2 years and 2 months, to be served concurrently, commencing 3 October 2013 and expiring 2 December 2015
- Balance of term of 2 years, commencing 3 December 2015 and terminating 2 December 2017
- Any balance of term to be served as a forensic patient, subject to any Probation and Parole Board determination

Notification:
- The Registrar was directed to notify the Mental Health Review Tribunal of the orders and provide it with Professor Greenberg's report dated 28 May 2015

Key Takeaways

  • Where a mental illness materially contributes to an offence, the District Court confirmed it may reduce the offender's moral culpability, diminish the weight of both general and specific deterrence, and render custody more burdensome, each of which can justify a reduction in sentence.
  • The principles set out in DPP (Cth) v De La Rosa [2010] NSWCCA 194 governed the approach taken, providing a structured framework for weighing mental illness across multiple sentencing considerations simultaneously.
  • An offender's status as a forensic patient under the Mental Health (Forensic Provisions) Act 1990 does not preclude the imposition of criminal sentences, but it does require the sentencing court to structure any term so as not to disrupt the Mental Health Review Tribunal's ongoing oversight and management role.
  • Full admissions and cooperation with police remained relevant mitigating factors, even for an offender with an extensive history of violent offending, though that criminal history limited the extent to which further leniency was available.
  • Directing the sentencing remarks and expert psychiatric evidence to the Mental Health Review Tribunal was treated as an appropriate step to ensure the Tribunal could perform its functions with complete information.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 95(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases:
- DPP (Cth) v De La Rosa [2010] NSWCCA 194