Citation: Sullivan v R [2016] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 17 August 2016
Judge(s): Bathurst CJ, Basten JA, Simpson JA
Background
The applicant was sentenced in the District Court at Newcastle in June 2015 to an aggregate term of 6 years' imprisonment (non-parole period of 4 years) for two counts of robbery whilst armed with an offensive weapon. Both offences occurred in April 2014 and involved the applicant entering jewellery stores in Muswellbrook and Singleton, smashing display cabinets with a hammer and a dumbbell respectively, and stealing jewellery with a combined retail value of approximately $88,000. In the second offence, the applicant raised the dumbbell threateningly at a sales assistant who approached him. None of the jewellery was recovered; the applicant stated it was used to repay drug suppliers.
The applicant had a background of significant drug use beginning in childhood and had been diagnosed with paranoid schizophrenia. He had a history of non-compliance with prescribed psychiatric medication when in the community, and had used illicit drugs, including methamphetamine, in part to manage his symptoms. The sentencing judge noted that his illicit drug use had exacerbated rather than assisted his mental health.
The applicant sought leave to appeal on three grounds: that the sentencing judge had misapplied the guideline judgment in R v Henry by overstating the discount for a late guilty plea; that his mental state at the time of offending had been incorrectly treated as irrelevant to objective gravity; and that the judge had wrongly placed undue weight on specific deterrence given his mental illness.
Legal Issues
- Whether the sentencing judge erred by assuming the Henry guideline incorporated a 15% discount for a late plea, resulting in an inflated starting point for the sentence range.
- Whether the applicant's mental state at the time of offending was relevant to the objective gravity of the offences, and whether the sentencing judge erred in failing to treat it as a mitigating factor in that context.
- Whether the sentencing judge erred in giving increased weight to specific deterrence and protection of the community by reference to the applicant's mental illness, in the absence of direct evidence linking that illness to the risk of future offending.
Decision
On the guilty plea discount: The Court of Criminal Appeal found that the sentencing judge had, if anything, made a mathematical error in the applicant's favour. The true effect of the Henry guideline, properly understood through the subsequent guideline judgment in R v Thomson; R v Houlton, was that Henry incorporated a late plea attracting a discount of around 10%. The applicant had pleaded guilty at the Local Court and received a 25% discount. Any error in the judge's characterisation of the Henry discount therefore did not disadvantage the applicant and could not ground a successful appeal.
On objective gravity and mental state: The Court held that the sentencing judge did not err. There was no evidence that the applicant's mental state had any causative bearing on the commission of the offences. The applicant's own case before the sentencing judge was built on the interaction between drug use and mental illness, but that interaction did not establish that mental illness directly impaired his conduct at the relevant time. The Court noted that the applicant had demonstrated periods of abstinence, and the circumstances of his drug use did not warrant special treatment on the question of objective gravity.
On specific deterrence and protection of the community: The Court rejected the submission that specific deterrence could not be elevated without direct evidence of a link between the applicant's mental illness and future offending risk. It was open to the sentencing judge, on the evidence before her, to draw on the established inter-relationship between untreated mental illness, illicit drug use, and the need to fund that drug use through further offending. The judge had correctly reduced the weight given to general deterrence because of the mental illness, while appropriately accounting for the ongoing risks posed by the applicant's conditions if untreated. No error was demonstrated.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that where an applicant receives a more favourable plea discount at sentencing than the Henry guideline assumed, any judicial error in characterising that guideline discount cannot ground a successful appeal.
- A sentencing court is not required to treat a diagnosed mental illness as relevant to the objective gravity of an offence unless there is evidence that the illness had a causative or operative effect on the offending conduct at the relevant time.
- Where a sentencing judge reduces weight given to general deterrence on account of mental illness, it remains open to place greater weight on specific deterrence and community protection, provided that reasoning is grounded in the evidence before the court.
- The inter-relationship between untreated mental illness, illicit drug use, and drug-funded offending may itself constitute a sufficient evidential basis for elevated concern about future offending, without requiring separate direct evidence of that link.
- The Henry guideline range of 4 to 5 years for robbery with common features does not apply in a formulaic way; sentencing courts must assess whether an individual offender's characteristics align with the guideline's assumed offender profile before applying it.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Harris [2011] NSWCCA 105
- Regina v Kelly [2010] NSWCCA 259
- Turner v R [2011] NSWCCA 189