Citation: Griffin v R [2018] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 21 November 2018
Judges: Beazley P, McCallum J, Davies J
Background
The applicant, a 19-year-old man, pleaded guilty in the District Court to three offences arising from two fires deliberately lit in commercial premises in Goulburn. The first fire destroyed a Centrelink building at an estimated cost of $3 million; the second caused approximately $20,000 in damage to a building on a construction site. His younger brother, who was co-charged, was sentenced separately and did not appeal.
The applicant was sentenced to an aggregate term of eight years' imprisonment with a non-parole period of five years. He sought leave to appeal on three grounds: that the sentencing judge erred in approaching his mental condition, that the judge erred in his approach to the applicant's youth, and that the sentence was manifestly excessive.
There was also a procedural complication in the proceedings. The indictment and sentencing judgment contained conflicting references to two different offences under the Crimes Act 1900 (NSW), one carrying a maximum of seven years and the other ten years. The Court resolved this by re-sentencing the applicant by reference to the charge to which he had actually pleaded guilty on arraignment.
Legal Issues
- Whether the sentencing judge erred in his approach to the applicant's significant mental health conditions, specifically major depressive disorder and PTSD arising from severe childhood trauma
- Whether the applicant was precluded from reformulating his case on the mental health issue in the Court of Criminal Appeal, given that defence counsel had provided inadequate assistance to the sentencing judge on that issue
- Whether the sentence was manifestly excessive, including in light of the disparity with the sentence imposed on the applicant's brother
- Which offence provision governed the first count, given the conflicting references in the indictment and sentencing judgment
Decision
The Court found that ground one was established and that re-sentencing was warranted. There was cogent, uncontradicted evidence that the applicant suffered from major depressive disorder, PTSD, and extremely poor emotional and intellectual function, all stemming from a childhood marked by chronic neglect, sexual abuse, and instability across multiple foster placements. The sentencing judge had received inadequate assistance from defence counsel on how this evidence bore upon the applicant's moral culpability and prospects of rehabilitation.
The Court rejected any suggestion that the applicant was precluded from raising the mental health issue on appeal simply because it had been poorly developed below. The evidence was clearly relevant and had been before the sentencing judge. Given the cogency of that evidence and its direct bearing on the applicant's moral culpability, the sentencing court's failure to engage with it properly constituted error.
On re-sentencing, McCallum J concluded that general deterrence had little role to play when the offending was viewed through the lens of the psychological consequences of childhood sexual abuse. While the applicant's criminal history and susceptibility to being led by others presented challenges to rehabilitation, a community-based program tailored to his needs and available upon release was considered better suited to securing his rehabilitation than further time in custody. These factors warranted a substantial reduction in the non-parole period relative to the overall term.
The Court also addressed the sentencing disparity. The resulting sentence was less than that imposed on the applicant's brother, who had not appealed. The Court held that it was not required to impose a higher sentence than it otherwise considered appropriate simply to avoid that disparity: to do so would subvert the principle of equality.
Orders Made
- Leave to appeal granted
- The sentence imposed at first instance was quashed
- In substitution, the applicant was sentenced to an aggregate term of six years' imprisonment commencing 27 June 2016, with a non-parole period of three years concluding 26 June 2019 and a balance of term of three years concluding 26 June 2022
Key Takeaways
- A sentencing court's failure to engage properly with uncontradicted, cogent evidence of mental illness and its bearing on moral culpability and rehabilitation can constitute error justifying appellate intervention.
- An applicant is not automatically precluded from reformulating a sentencing argument on appeal merely because defence counsel provided inadequate assistance to the sentencing judge at first instance, provided the relevant evidence was before that court.
- Where an offender's psychological state stems from severe childhood trauma, including sexual abuse, the Court of Criminal Appeal confirmed that general deterrence may carry little or no weight in the sentencing exercise.
- The availability of a tailored community-based rehabilitation program upon release can warrant a significant adjustment to the statutory ratio between the non-parole period and the balance of term.
- In circumstances where only one co-offender appeals, the appellate court is not obliged to impose a sentence higher than it otherwise considers appropriate to avoid a disparity: imposing an unduly high sentence to maintain parity would itself be an error.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(j)
- Crimes Act 1900 (NSW), ss 111(2), 112(2), 114(1)(d), 115, 195(1A)(b)
Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44