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Court of Criminal Appeal 30 August 2017

Ryan v Regina

[2017] NSWCCA 209

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE ONGOING SUPPLY OF DRUGS MENTAL DISORDER DRUG ADDICTION WHERE OFFENDER RELAPSED INTO DRUG USE

Citation: Ryan v Regina [2017] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 30 August 2017
Judges: Leeming JA, Button J and Hamill J

Background

The appellant pleaded guilty in the District Court at Campbelltown to ongoing supply of a prohibited drug, contrary to s 25A of the Drug Misuse and Trafficking Act 1986 (NSW). The offending involved street-level dealing of small quantities of heroin and methylamphetamine on seven occasions over approximately one month in 2016, with most individual supplies under 0.5 grams and the majority made to a police operative.

The sentencing judge imposed a total sentence of three years, incorporating a 25% discount for the guilty plea and a finding of special circumstances that reduced the non-parole period to approximately 66.6% of the total term. A forensic psychologist's report diagnosed the appellant with a delusional disorder, an adjustment disorder with anxiety, and a polysubstance use disorder.

The appellant sought leave to appeal, arguing the sentencing judge had failed to reduce his moral culpability and had failed to reduce the weight given to general deterrence, both in light of his diagnosed mental disorders.

  • Whether the sentencing judge erred by failing to reduce the appellant's moral culpability in light of his mental disorders
  • Whether the sentencing judge erred by failing to reduce the weight afforded to general deterrence because of those mental disorders

Decision

On the first ground, the Court of Criminal Appeal found no error. The sentencing judge had explicitly acknowledged the appellant's mental health difficulties but was not satisfied there was any causal relationship between those conditions and the offending. That finding was open on the evidence. Although the psychologist's report suggested an indirect link, in that a series of "life events" contributed to an adjustment disorder that led to the appellant stopping his methadone and relapsing into drug use, this fell short of the direct connection required to reduce moral culpability.

On the second ground, the court confirmed that a strict causal link between a mental condition and offending is not required before some reduction is given to general deterrence. However, the court found the sentencing judge's remarks showed no particular emphasis on general deterrence. The sentence was described as relatively moderate in view of the maximum penalty of 20 years and the appellant's criminal history, and no submission had been made at first instance that the appellant was an unsuitable vehicle for a sentence that gave some weight to general deterrence.

The court also noted that the sentencing judge's reasons were delivered shortly after submissions, without specific argument about the precise role mental health evidence should play. The judge had nonetheless expressly acknowledged the mental health issues, finding that custody would be harder for the appellant because of them and reducing the non-parole period accordingly. The court characterised the sentencing remarks as thoughtful, balanced and compassionate, and found no error in either ground.

The court also briefly addressed a point raised by the Crown on appeal about whether a psychologist (rather than a psychiatrist) is qualified to diagnose mental illness. It declined to resolve that question in this case because the diagnosis had been admitted at first instance without objection and was not challenged by the prosecutor, making it unnecessary to determine whether earlier observations by the court on this issue accurately state the law.

Orders Made

  • Application for leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • A direct causal link between a mental disorder and the relevant offending is required before a sentencing court will reduce an offender's moral culpability on the basis of that disorder. An indirect chain of events connecting a mental condition to a relapse in drug use, and then to offending, did not satisfy that threshold here.
  • No equivalent causal link is required before reducing the weight given to general deterrence in sentencing, but the Court of Criminal Appeal found no error where the overall sentence was moderate and the judge's remarks did not reveal any disproportionate reliance on general deterrence.
  • Where a psychologist's diagnosis of mental illness is admitted at first instance without objection and is unchallenged by the prosecution, an appellate court will not re-examine the expert's qualifications. The court left open the broader question of whether psychologists (as distinct from psychiatrists) are appropriately qualified to make psychiatric diagnoses.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be found on the basis of an offender's precarious mental health and a long history of addiction requiring an extended period of supervised release, even where the mental condition does not reduce moral culpability.
  • In dismissing the appeal, the court observed that the absence of specific submissions at first instance on how mental health evidence should affect the sentencing exercise was a relevant consideration when evaluating whether the judge had fallen into error.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1986 (NSW), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44

Cases:
- Champion (1992) 64 A Crim R 24
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Jung v R [2017] NSWCCA 24
- Lam v R [2015] NSWCCA 143
- R v Israil [2002] NSWCCA 255
- R v Kelsall [2015] NSWSC 480
- R v Letteri (Unreported, NSW Court of Criminal Appeal, 18 March 1992)
- WW v R [2012] NSWCCA 165
- Zuffo v R [2017] NSWCCA 187