Citation: Lawson v R [2018] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 5 October 2018
Judges: Gleeson JA, Walton J, Fagan J
Background
The appellant was 20 years old when he drove a station wagon at speeds estimated between 170 and 200 km/h along the Pacific Motorway between Wyong and Morisset in the early morning of 10 November 2014. He drove through the breakdown lane, overtaking multiple vehicles on the inside, before colliding at high speed with the rear of another vehicle. The collision caused the victim's Toyota Hilux to leave the ground, flip multiple times, strike safety railing, and roll down an embankment into a creek. The appellant then fled the scene on a skateboard and was restrained by a bystander until police arrived.
The victim suffered catastrophic injuries, including near-complete traumatic amputation of her left arm, extensive scalp and facial lacerations, fractures to the C1 and C2 vertebrae, and a traumatic brain injury with lasting cognitive and physical consequences. She spent 29 days in intensive care and a further four months as an inpatient. By the time of sentencing, more than two years after the collision, she had not returned to work.
Following the offence, the appellant was diagnosed with paranoid schizophrenia with onset shortly before the events. He pleaded guilty in the District Court to aggravated dangerous driving occasioning grievous bodily harm and to failing to stop and assist after the impact. Judge Buscombe imposed an aggregate sentence of four years imprisonment with a non-parole period of two years and six months. The appellant then sought leave to appeal the severity of that sentence in the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge failed to account for the appellant's reduced moral culpability arising from the causative link between his mental illness and the offending, when assessing the objective seriousness of the dangerous driving offence
- Whether the aggregate sentence of four years imprisonment was manifestly excessive
Decision
On the first ground, the Court rejected the submission that the sentencing judge had overlooked the mental illness as a mitigating factor. The judge had expressly accepted that the paranoid schizophrenia materially contributed to the commission of the offences and had factored this into sentencing. Consistent with established authority, the judge was not required to isolate or quantify the extent of mitigation attributable to the mental condition.
The Court also rejected the contention that reduced moral culpability due to mental illness must necessarily place an offending at the low end of the objective seriousness scale under the guideline in R v Whyte. The Court noted that, while purposes such as general deterrence, denunciation, and accountability were of reduced significance given the mental illness, other statutory sentencing purposes remained relevant. These included community protection and recognition of the harm done to the victim. Specific deterrence also retained some significance because the evidence showed the appellant's condition worsened with illicit drug use, and he had at times relapsed into drug misuse and neglected his prescribed medication since the offence.
On the second ground, the Court found that the indicative sentences for each count were not excessive, having regard to the gravity of the offending and all mitigating factors including the mental illness. The indicative sentence on the dangerous driving count of three years and six months reflected substantial allowance for the causative effect of the schizophrenia, given that without it a sentence of around five to six years would have been warranted. With the indicative sentences themselves standing, the aggregate of four years could not be characterised as manifestly excessive. The Court also noted that the non-parole period of 65% of the head sentence reflected a finding of special circumstances.
Orders Made
- Leave to appeal is granted
- The appeal is dismissed
Key Takeaways
- A sentencing judge is not required to isolate or quantify the specific reduction in sentence attributable to a mental illness with a causative link to offending; it is sufficient that the condition is expressly recognised and factored into the overall sentence.
- Reduced moral culpability arising from mental illness does not automatically place an offence at the lowest level of objective seriousness under the R v Whyte guideline; the assessment depends on all circumstances.
- Under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), general deterrence, denunciation, and accountability are of reduced significance where mental illness causally contributed to the offending, but purposes such as community protection and recognition of harm to the victim remain relevant.
- Specific deterrence retains some weight even where mental illness is causative, where the evidence indicates the offender's condition is aggravated by conduct, such as illicit drug use, that the offender has some capacity to avoid.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an offender who does not plead the mental health defence cannot be sentenced as though not legally responsible for the offending, and the full range of sentencing purposes must still be weighed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 52A(4), 52A(7)(b), 52AB(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A
- Mental Health Act 2007 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 38(1)
Cases:
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- House v The King (1936) 55 CLR 499
- R v Pearson [2004] NSWCCA 129
- Biddle v R [2017] NSWCCA 128
- Hughes v R [2018] NSWCCA 2
- Yun v R [2017] NSWCCA 317