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Court of Criminal Appeal 28 August 2017

Egan v Regina

[2017] NSWCCA 206

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE

Citation: Egan v Regina [2017] NSWCCA 206
Court: Court of Criminal Appeal, New South Wales
Date: 28 August 2017
Judges: Bathurst CJ, McCallum J, Bellew J

Background

The applicant, a 23-year-old man with no relevant prior criminal history, pleaded guilty to specially aggravated breaking and entering a dwelling and committing a serious indictable offence under s 112(3) of the Crimes Act 1900 (NSW). The offending involved a home invasion in which he and three others, armed with a sawn-off rifle and batons, mistakenly entered the wrong house and subjected an elderly couple to a prolonged and violent ordeal. The maximum penalty for the offence was 25 years' imprisonment, with a standard non-parole period of seven years.

The sentencing judge in the District Court imposed a total term of seven years with a non-parole period of four and a half years, after applying a 25 per cent discount for the utilitarian value of an early plea. The structure of the sentence reflected a finding of special circumstances, based on the applicant's youth and the fact that it was his first period in custody, resulting in him becoming eligible for parole nine months earlier than the statutory ratio would have allowed.

The applicant sought leave to appeal, arguing that the sentencing judge made a legal error by confining the relevance of unchallenged mental health evidence to two purposes only: assessing the objective seriousness of the offending, and identifying hardship in custody.

  • Whether the sentencing judge erroneously confined the relevance of the applicant's mental illness to an assessment of objective criminality and hardship in custody, thereby failing to give it wider consideration in the sentencing exercise.
  • Whether the mental health evidence should also have been brought to bear on other sentencing factors, including moral culpability and the weight to be given to specific deterrence.

Decision

McCallum J, with whom Bathurst CJ and Bellew J agreed, dismissed the appeal. Her Honour found that the sentencing judge had not, in fact, improperly confined her consideration of the applicant's mental health evidence to only two purposes. A close reading of the sentencing judgment revealed that the judge had taken the mental health material into account more broadly, including in her assessment of the applicant's moral culpability.

The Court noted that the applicant's submissions at sentencing had themselves been limited in scope. Counsel had raised the mental health evidence principally in relation to objective seriousness, hardship in custody, and a brief reference to specific deterrence. The sentencing judge addressed those submissions on the terms in which they were advanced. There was nothing in the sentencing judgment to suggest the judge had concluded that specific deterrence weighed heavily against the applicant.

On the question of special circumstances, the judge had relied on the applicant's youth and his first period in custody as the basis for departing from the statutory ratio. The mental health evidence was not expressly referenced in that finding, but the Court concluded that this omission did not establish that the judge had impermissibly restricted her sentencing discretion. The adjustment made was not insubstantial, resulting in a nine-month earlier eligibility for parole.

No proper basis was established for appellate intervention. The Court granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's treatment of mental health evidence must be assessed by reading the sentencing judgment as a whole, not by focusing on the structure of any particular passage in isolation.
  • Where a sentencing judge addresses mental health evidence on the terms in which it was raised by counsel at sentence, that approach does not necessarily constitute an error of law, even if the judgment does not separately enumerate every potential sentencing purpose to which the evidence might be relevant.
  • Under the principles established in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, mental illness may bear on several sentencing considerations beyond objective seriousness and hardship in custody, including moral culpability and the weight to be given to specific deterrence.
  • No error was established simply because the sentencing judge's express reasoning on special circumstances did not reference the mental health evidence, where the overall sentence reflected a meaningful and unexplained departure from the statutory ratio.
  • Appellate courts will not intervene in a sentencing discretion unless a proper basis for doing so is made out; the mere possibility that the evidence could have been deployed differently at sentence is insufficient to ground appellate correction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97, 105A, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Aslan v R [2014] NSWCCA 114
- Benitez v R [2006] NSWCCA 21
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39