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Court of Criminal Appeal 20 September 2017

Luque v R

[2017] NSWCCA 226

Fraud & dishonestyPublic order & justice offences
CRIME LEAVE TO APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL ALLOWED DISCRETION TO RE SENTENCE EXERCISED

Citation: Luque v R [2017] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 20 September 2017
Judge(s): Macfarlan JA, Button J, Hamill J

Background

The appellant was a 33-year-old woman employed as a medic at a train station. In September 2015, she stole a lost wallet from her workplace, made a false computer entry to conceal the theft, and used the stolen debit card to make unauthorised purchases. Two months later, following her arrest on dishonesty charges, she fabricated an elaborate story of a violent home invasion and sexual assault, implicating an entirely innocent man and causing police to expend significant investigative resources.

The appellant was charged with making a false accusation intending another person to be investigated for an offence, knowing that person to be innocent, contrary to s 314 of the Crimes Act 1900 (NSW). She was committed for sentence in the District Court after entering a guilty plea. The sentencing judge rejected submissions for a non-custodial alternative and imposed a head sentence of two years and six months with a non-parole period of twelve months.

The appellant sought leave to appeal on two grounds: that the sentencing judge erred in his treatment of mental health evidence, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in his consideration of the appellant's mental state, including by effectively imposing an impermissible causation-style requirement and by discounting expert psychiatric evidence without proper basis.
  • Whether the sentence of two years and six months imprisonment with a twelve-month non-parole period was manifestly excessive in all the circumstances.

Decision

The Court found the sentencing judge had erred in his approach to the psychiatric evidence. His Honour had treated the mental health material in an unduly restrictive way, coming close to requiring the appellant to demonstrate that her mental condition directly caused the offending, as if establishing a defence. The Court confirmed that mental health conditions can mitigate sentence in several distinct ways: by reducing moral culpability, by making the offender unsuitable as a vehicle for general or specific deterrence, and by making incarceration more onerous. None of these considerations requires proof of a direct causal link between the condition and the offending.

The Court also found that the sentencing judge had impermissibly discounted the opinions of the forensic psychiatrist on the basis that the appellant had not given evidence and may have manipulated the expert. Button J and Hamill J, drawing on the earlier decision in Devaney v R [2012] NSWCCA 285, confirmed that circumspection about self-serving statements made by an offender to an expert is not the same as devaluing the expert's professional opinion. Where a psychiatrist forms a diagnosis from history, and there is corroborating evidence supporting that history, a sentencing judge ought not dismiss the psychiatric opinion without first having it tested in cross-examination.

On the question of manifest excess, the Court concluded the total sentence was unreasonable and plainly wrong. The appellant had a prior record consisting largely of minor dishonesty matters for which no conviction had been recorded. She had made genuine progress toward rehabilitation during her remand. While the offence was objectively serious, the combination of errors in assessing the mental health evidence and the weight given to other mitigating factors rendered the sentence excessive. By the time the matter came before the Court of Criminal Appeal, the appellant had already served more than eight months in full-time custody, making re-sentencing to a shorter overall term the appropriate course.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed on 30 January 2017 quashed.
  • Appellant re-sentenced to imprisonment with a non-parole period of 10 months commencing 4 October 2016 and concluding 3 August 2017, with a balance of term of 8 months concluding 3 April 2018.
  • Appellant directed to be released forthwith.

Key Takeaways

  • A sentencing court considering mental health evidence must not approach that evidence as though the offender were required to establish a causal defence. Mental health conditions can reduce moral culpability, bear on the appropriateness of deterrence-based sentencing, and affect the burden of incarceration, without any need to establish a direct link to the commission of the offence.

  • Where a forensic psychiatrist forms a professional opinion based on history, a sentencing judge may not simply discount that opinion on the basis that the offender chose not to give evidence or may have been manipulative. Criticism of the expert's methodology or conclusions should, in most cases, be tested through cross-examination.

  • The Court of Criminal Appeal confirmed the approach set out in Devaney v R [2012] NSWCCA 285: discounting hearsay statements made by an offender to an expert is distinct from diminishing the weight of the expert opinion itself, particularly where corroborating evidence supports the history provided.

  • Manifest excess was established here through the combined effect of legal error in weighing mitigating factors and a sentence that was unreasonable and plainly wrong having regard to the appellant's prior record, mental health history, and progress in rehabilitation.

  • Under s 314 of the Crimes Act 1900 (NSW), making a false accusation knowing the accused to be innocent carries a maximum of seven years on indictment and has no standard non-parole period, leaving significant sentencing discretion to be exercised by reference to all relevant circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 314

Cases
- Aslan v R [2014] NSWCCA 114
- Devaney v R [2012] NSWCCA 285
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Laspina v R [2016] NSWCCA 181
- R v Forrester (NSWCCA, 16 October 1998, unreported)
- R v Qutami [2001] NSWCCA 353
- R v Scognamiglio (1991) 56 A Crim R 81
- Richards v R [2006] NSWCCA 262
- Ryan v R [2017] NSWCCA 209
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64