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Court of Criminal Appeal 7 March 2016

Wainwright v R

[2016] NSWCCA 19

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE MENTAL HEALTH

Citation: Wainwright v R [2016] NSWCCA 19
Court: NSW Court of Criminal Appeal
Date: 7 March 2016
Judge(s): Ward JA, R A Hulme J, Fagan J

Background

The appellant pleaded guilty in the District Court to intentionally causing grievous bodily harm under s 33(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. The charge arose from a sustained and violent attack on a young woman at a residential property in Mortdale in January 2010. The victim suffered serious facial fractures, lacerations, dental damage, and lasting psychological harm.

The sentencing proceedings were significantly delayed by questions about the appellant's fitness to plead, arising from conflicting psychiatric assessments over several years. Sentence was ultimately imposed in June 2014, with a non-parole period of five years and a balance of term of three years and one month, commencing retrospectively from October 2011 to account for time already spent in custody.

The appellant sought leave to appeal against the severity of his sentence, arguing that the sentencing judge had erred in his approach to the appellant's mental health conditions and their effect on the sentence imposed.

  • Whether the sentencing judge erred in assessing the impact of the appellant's mental health conditions on his moral culpability and, in turn, on the sentence imposed.
  • Whether a lesser sentence was warranted in law (this ground was contingent on error being established under the first ground).

Decision

The Court of Criminal Appeal found no error in the sentencing judge's evaluation of the conflicting psychiatric evidence. The psychiatric reports presented at sentencing were numerous, spanning several years, and contained disparate and at times contradictory conclusions about the appellant's mental state. The sentencing judge's careful assessment of that material, and his conclusion that any resulting diminution in moral responsibility was only slight, was open on the evidence.

The Court confirmed that the sentencing judge had correctly identified and applied the relevant principles governing the treatment of mental disorder in sentencing. Although the sentencing judge did not quantify the precise reduction attributable to the appellant's mental condition, the Court observed that some allowance had plainly been made.

The Court also noted the objective gravity of the offence. The attack involved a specific intent to cause grievous bodily harm, the same mental element required for murder. It was described as appalling in its savagery: sustained, directed at an unconscious and defenceless victim, and continued in the face of physical attempts by bystanders to intervene. Given those features and the applicable maximum and standard non-parole period, the Court considered the sentence before discount was, if anything, conservative rather than excessive.

Because no error was established under the first ground, the second ground (that a lesser sentence was warranted in law) did not fall to be considered.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's conclusion that the appellant's complex and contested psychiatric history produced only a slight reduction in moral responsibility, where the psychiatric evidence was conflicting and the judge engaged carefully with it.
  • A sentencing court is not required to quantify the precise discount attributable to a mental health condition, provided it is apparent that some allowance has been made.
  • The Court of Criminal Appeal confirmed the significance of the specific mental element in s 33(1)(b) offences: intent to cause grievous bodily harm is the same mental element as for murder, and this bears on objective seriousness for sentencing purposes, as previously noted in AM v R [2012] NSWCCA 203.
  • In dismissing the appeal, the Court indicated that the pre-discount starting point of nine years was, if anything, lower than might otherwise have been expected given the objective features of the offence, the applicable maximum, and the standard non-parole period.
  • Where a second appeal ground is contingent on the first being made out, a court need not address it if no error is found under the primary ground.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 27, 33(1)(b)

Cases
- AM v R [2012] NSWCCA 203
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28
- Elturk v R [2014] NSWCCA 61
- R v Hemsley [2004] NSWCCA 228