Barber v R

Citation: Barber v R [2017] NSWCCA 111
Court: Court of Criminal Appeal, NSW
Date: 26 May 2017
Judges: Beazley P, Walton J (with whom Beazley P agreed), R A Hulme J

Background

The applicant pleaded guilty in the Sydney District Court to three principal offences: taking and driving a conveyance without consent, stalking and intimidating a former domestic partner with intent to cause fear of physical harm, and aggravated break, enter and steal. Four further related offences (including dangerous driving and driving whilst disqualified) were dealt with on a s 166 Certificate.

The offending arose from a connected series of events on 6 and 7 December 2015 in Wagga Wagga. The applicant, while under the influence of methylamphetamine, tracked down his former partner to a friend's residence, made violent threats, led police on a high-speed pursuit, and broke into a family home in a caravan park while the resident and her young children were present. The sentencing judge in the District Court imposed an aggregate sentence of two years and six months, with a non-parole period of 18 months, noting special circumstances for rehabilitation and drug and alcohol treatment.

The applicant sought leave to appeal against sentence on the basis that the sentencing judge had failed to account for his mental condition (diagnosed by a psychiatrist as including post-traumatic stress disorder) when assessing his moral culpability and moderating the weight given to general deterrence.

Legal Issues

• Whether the sentencing judge erred by failing to take the applicant's mental condition (PTSD) into account when assessing his moral culpability for the offences.
• Whether the sentencing judge erred by failing to moderate the weight given to general deterrence in light of that mental condition.
• Whether, given the substance of the ground had not been raised before the sentencing judge, leave to appeal should be granted.

Decision

Walton J (with Beazley P and Hulme J agreeing) refused leave to appeal. His Honour identified a threshold problem: the applicant had not raised the current ground of appeal before the sentencing judge. While that omission is not automatically fatal to a leave application, it required the applicant to demonstrate sufficient merit to justify the grant of leave.

On the question of whether a relevant connection had been established between the applicant's diagnosed PTSD and the commission of the offences, the Court found that no such connection had been made out. The psychiatric evidence of Dr Furst reached only as far as saying that the mental condition may have contributed to a "loss of emotional control." Critically, the offences were committed while the applicant was intoxicated with methylamphetamine, and Dr Furst accepted that the drug use had itself contributed to his lack of inhibition and reckless behaviour. The psychiatrist did not separately distinguish between the contributions of the PTSD and the methamphetamine intoxication.

The Court affirmed the established principle that a mental health condition need not be the sole or even a direct cause of the offending for it to be relevant to sentencing. However, in this case, the evidence fell short of establishing the necessary material connection. There was also no evidence that the applicant lacked knowledge of what he was doing or failed to appreciate the consequences of his actions, which might otherwise have engaged the principles reducing the weight given to general deterrence.

Orders Made

• Leave to appeal against sentence is refused.

Key Takeaways

• For a mental health condition to reduce an offender's moral culpability at sentencing, a relevant connection between the condition and the commission of the offences must be established on the evidence; a generalised contribution to "loss of emotional control" may be insufficient.
• The Court of Criminal Appeal confirmed that a psychiatric condition need not be "the" cause, and in some circumstances not even "a" direct cause, of the offending for it to be relevant to sentencing (citing Benitez v R [2006] NSWCCA 21), but the evidence must still establish a meaningful link.
• Where methylamphetamine intoxication accounts for an offender's behaviour and psychiatric evidence does not distinguish between that factor and a diagnosed mental condition, the mental condition may not independently reduce culpability or moderate general deterrence.
• Failing to raise the substance of a sentencing ground before the sentencing judge does not automatically foreclose a leave application in the Court of Criminal Appeal, but it does require the applicant to demonstrate sufficient merit in the proposed ground.
• In dismissing the application, the Court found no basis for concluding the sentencing judge had made an error of the kind required under House v King (1936) 55 CLR 499 to justify appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 154A(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2B), 53A, 10A
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 10(1)
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)(b)
- Road Transport Act 2013 (NSW), ss 54(1)(a), 117(2)

Cases:
- Aslan v R [2014] NSWCCA 114
- Bailey v Director of Public Prosecutions (1988) 78 ALR 116; [1988] HCA 19
- Benitez v R (2006) 160 A Crim R 166; [2006] NSWCCA 21
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- House v King (1936) 55 CLR 499; [1936] HCA 40
- King v R [2015] NSWCCA 99
- Laspina v R [2016] NSWCCA 181
- R v Engert (1995) 84 A Crim R 67
- Zreika v R [2012] NSWCCA 44