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Court of Criminal Appeal 16 May 2016

Haines v R

[2016] NSWCCA 90

Homicide
CRIMINAL LAW SENTENCE APPEAL MURDER

Citation: Haines v R [2016] NSWCCA 90
Court: Court of Criminal Appeal, New South Wales
Date: 16 May 2016
Judges: Ward JA; Price J; Adamson J

Background

The appellant had been charged with the murder of a shopkeeper in March 2001. A jury found her unfit to stand trial in 2003, and a special hearing resulted in a finding that she had committed the offence. She was placed under the supervision of the Mental Health Review Tribunal and spent years in various custodial and forensic health settings before being found fit to be tried in November 2013.

When the appellant was arraigned in March 2014, her psychiatrist held the opinion that a mental illness defence was available to her, and she entered a not guilty plea on that basis. The psychiatrist subsequently revised his opinion twice: first, in April 2014, expressing doubt about the defence; and then, in a final report dated 30 June 2014, concluding that the defence was probably not available. Four days later, on 4 July 2014, the appellant entered a guilty plea.

At the sentencing hearing, the judge accepted that the appellant could not have pleaded guilty before being found fit to be tried, but concluded that she had not pleaded guilty at the first reasonable opportunity. He assessed the guilty plea discount at 15%, noting the plea came almost at the last moment before trial. The appellant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred in finding that the guilty plea was not entered at the earliest reasonable opportunity, given the history of the psychiatrist's changing opinions on the mental illness defence.
  • Whether the sentencing judge erred in allowing only a 15% discount for the guilty plea and giving no appreciable allowance for the appellant's co-operation in limiting the issues at trial.
  • Whether the sentencing judge gave insufficient weight to the appellant's subjective circumstances, including her mental illness, intellectual disability, deprived background, and physical ill health (this ground was not ultimately pressed once the court accepted the first ground).

Decision

The Court of Criminal Appeal held that the sentencing judge erred in finding the plea was not entered at the first reasonable opportunity. The Court reasoned that the delay in entering the guilty plea arose directly from the uncertainty in the psychiatric evidence on the mental illness defence. The appellant changed her plea within days of receiving Dr Giuffrida's final report confirming the defence was probably unavailable, and the Court inferred that she would have pleaded guilty at the point of arraignment had that opinion been reached from the outset.

The Court emphasised that this was an exceptional case in which the reason for the delay had to be taken into account. The delay in vacating the May 2014 trial date was plainly for the purpose of resolving the psychiatrist's uncertainty, not due to any tactical or strategic choice by the appellant. The Court also found that the appellant's co-operation in confining the issues at the anticipated judge-alone trial to the testing of two psychiatrists' evidence meant the utilitarian value of the guilty plea remained high, even though it came shortly before the trial date.

Having identified an error in the exercise of the sentencing discretion, the Court was required to re-sentence the appellant. It applied a 25% discount to reflect the guilty plea in the very unusual circumstances of the case, adopting the same 20-year starting point used by the sentencing judge. The resulting head sentence expired on 2 March 2016, and the Court ordered the appellant's immediate release.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the sentencing judge quashed.
  • Conviction confirmed.
  • Appellant sentenced to a term of imprisonment expiring on 2 March 2016.
  • Appellant to be released forthwith.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the timing of a guilty plea must be assessed in its full factual context, and that in exceptional circumstances the reason for delay in entering a plea is a relevant consideration when determining the appropriate discount.
  • A delay in entering a guilty plea that is attributable to genuine uncertainty in expert psychiatric evidence about the availability of a mental illness defence does not necessarily deprive an offender of a discount approaching the maximum range.
  • Where a not guilty plea was entered solely on the basis of a contested mental illness defence, and the guilty plea followed almost immediately after the expert withdrew that opinion, a court may infer the plea would have been entered at arraignment had the expert's ultimate view been known at that point.
  • Co-operation in limiting the issues at trial, even in a case where the plea comes late, remains a factor that can preserve the utilitarian value of the plea and support a higher discount.
  • Under the principle in Kentwell v The Queen (2014) 252 CLR 601, once an appellate court identifies a miscarriage in the sentencing discretion, it must re-sentence the offender rather than remit the matter.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 29(1)(b)

Cases
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Haines [2015] NSWSC 390
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Atkinson v R [2014] NSWCCA 262
- Nguyen v R [2008] NSWCCA 280
- R v AB [2011] NSWCCA 229
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Nicholson [2010] NSWCCA 80
- R v Oinonen [1999] NSWCCA 310
- R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510
- Villalon v R [2015] NSWCCA 229