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6
Court of Criminal Appeal 3 August 2016

Shine v R

[2016] NSWCCA 149

Also reported as (2016) 260 A Crim R 534
Assault & violence
CRIMINAL LAW APPEAL SENTENCING DELAY IN ENTERING GUILTY PLEA APPEAL SENTENCING

Citation: Shine v R [2016] NSWCCA 149
Court: NSW Court of Criminal Appeal
Date: 3 August 2016
Judge(s): Bathurst CJ; Davies J; R S Hulme AJ

Background

The applicant, a nursing student in his late fifties, developed a delusional belief that a female fellow student was in danger from her husband. Acting on those delusions, he attended the couple's home one night while the husband was asleep with their three young children and stabbed the husband multiple times with a knife. When the husband escaped outside, the applicant retrieved a second, larger knife and continued the attack, causing life-threatening injuries. Police arrested the applicant at the scene.

The applicant was charged with causing grievous bodily harm with intent to murder under s 27 of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years and a standard non-parole period of 10 years. A jointly tendered psychiatric report found the applicant fit for trial but identified a psychotic illness involving delusional beliefs that affected his ability to recognise that his actions were wrong, and noted a possible defence of mental illness. The applicant ultimately pleaded guilty and was sentenced to 12 years imprisonment with a non-parole period of 7 years and 6 months. The sentencing judge applied a 20% utilitarian discount for the guilty plea and, while accepting the psychiatric report, found that the applicant "knew what he was doing was wrong."

The applicant sought leave to appeal against the sentence on multiple grounds.

  • Whether the sentencing judge erred in applying only a 20% discount for the guilty plea, given the delay was attributable to the applicant's mental illness and the time required to obtain and consider the psychiatric report.
  • Whether the sentencing judge erred in finding, contrary to the psychiatrist's conclusion, that the applicant knew his actions were wrong, without providing reasons for departing from that expert opinion.
  • Whether the sentencing judge failed to properly assess how the applicant's mental illness reduced his moral culpability.
  • Whether the sentencing judge failed to consider the additional burden that incarceration would place on the applicant by reason of his mental illness.
  • Whether the sentencing judge failed to consider the applicant's prospects of rehabilitation.
  • Whether the sentence was manifestly excessive.

Decision

Utilitarian discount for guilty plea. The Court found that the delay in entering the plea was reasonably attributable to the applicant's mental illness and the time needed to obtain and consider the psychiatric report, including the assessment of whether a mental illness defence was available. Drawing on the analogous decision in Haines v R [2016] NSWCCA 90, the Court held that in exceptional circumstances, the reason for delay can be taken into account and that the applicant was entitled to a 25% discount rather than 20%. Davies J confirmed that while the utilitarian value of a plea is generally assessed without regard to the reasons for delay, that principle must yield to the particular circumstances of a given case.

Departure from psychiatric opinion without reasons. The sentencing judge's finding that the applicant knew his conduct was wrong directly contradicted the psychiatrist's conclusion, yet no reasons were given for that departure. The Court held this was an error of law. Under the principle in R v Thomson & Houlton (2000) 49 NSWLR 383, a sentencing judge who reaches a conclusion on a critical factual matter contrary to expert evidence is required to explain why.

Mental illness and moral culpability, incarceration, and rehabilitation. The Court identified three further errors. First, the sentencing judge failed to give adequate attention to whether and how the applicant's mental illness reduced his moral culpability, which the Court confirmed is a mandatory consideration. Second, the sentencing judge failed to consider the well-established principle that a custodial sentence may weigh more heavily on a person with a mental illness. Third, prospects of rehabilitation were not addressed at all, which the Court held was also an error of law.

Resentencing. Taking all errors together, the Court found the original sentence manifestly excessive. The applicant's moral culpability was significantly reduced by his mental illness, and considerations of personal deterrence and protection of the public were ameliorated by the demonstrated effectiveness of his medication. The Court resentenced the applicant to 9 years imprisonment comprising a non-parole period of 5 years and a balance of term of 4 years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed and replaced with a non-parole period of 5 years commencing 19 April 2014, with a balance of term of 4 years. Earliest parole eligibility: 18 April 2019.

Key Takeaways

  • A sentencing judge who departs from a jointly tendered psychiatric expert opinion on a critical matter must give reasons for doing so; failure to do so constitutes an error of law.
  • Where the delay in entering a guilty plea is reasonably attributable to a genuine psychiatric assessment process (including evaluation of a potential mental illness defence), the sentencing court may treat that as an exceptional circumstance justifying a higher utilitarian discount than would otherwise apply.
  • Failing to address how a mental illness reduces an offender's moral culpability, how incarceration may weigh more heavily on a mentally ill offender, and what the prospects of rehabilitation are each constitute independent errors of law in the sentencing process.
  • In dismissing the sentence as manifestly excessive, the Court of Criminal Appeal reduced the non-parole period from 7 years and 6 months to 5 years, reflecting the combined weight of the applicant's diminished moral culpability and the ameliorating effect of medication on risk factors.
  • The principle from R v Thomson & Houlton requiring reasons when departing from expert evidence applies at sentencing, not only at trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 27
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(h)

Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Israil [2002] NSWCCA 255
- Engert v R (1994) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Pham [2005] NSWCCA 314
- R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
- Carney v R [2008] NSWCCA 277
- Nguyen v R [2008] NSWCCA 280
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Nicholson [2010] NSWCCA 80
- Piciollo v R [2011] NSWCCA 180
- R v AB [2011] NSWCCA 229
- Carroll v R [2012] NSWCCA 118
- McLaren v R [2012] NSWCCA 284
- Millwood v R [2012] NSWCCA 2
- R v Windle [2012] NSWCCA 222
- Dang v R [2013] NSWCCA 246
- Elturk v R [2014] NSWCCA 61; 239 A Crim R 584
- Kentwell v R [2014] HCA 37; 252 CLR 60
- Haines v R [2016] NSWCCA 90