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Court of Criminal Appeal 21 March 2018

Toman v R

[2018] NSWCCA 51

Theft & property
CRIMINAL LAW SENTENCE APPEAL BREAK ENTER AND STEAL DIAGNOSIS OF SCHIZOPHRENIA CLEAR PLANNING OF OFFENCE NO ERROR FOUND

Citation: Toman v R [2018] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 21 March 2018
Judges: Bathurst CJ, Johnson J, Price J

Background

The appellant had pleaded guilty in the Local Court to two counts of break, enter and steal and one count of having his face disguised with intent to commit an indictable offence, all committed over two consecutive days in July 2015. The offending was methodical: the appellant wore a niqab purchased from a mosque a week before the offences, used a co-offender and multiple vehicles, stole goods worth approximately $3,000, and later pawned the proceeds. He also attempted to cover his tracks by encouraging the owner of a borrowed vehicle to lie to police.

The matter was dealt with in the District Court at Parramatta, where Judge Colefax SC imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years 9 months. The appellant had an extensive prior criminal history, including 40 prior break and enter offences.

Three psychiatric reports were tendered on sentence, from Dr Furst (two reports) and Dr Nielssen (one report). Both psychiatrists diagnosed the appellant with schizophrenia and expressed the opinion that his mental illness impaired his capacity to make logical decisions and weigh the long-term consequences of his actions. Neither psychiatrist was cross-examined, and the Crown did not challenge the reports.

  • Whether the sentencing judge erred by rejecting the unchallenged psychiatric opinions that the appellant's schizophrenia impeded his capacity to make logical decisions.
  • Whether it was open to the sentencing judge to prefer his own assessment of the facts over the joint conclusions of two expert psychiatrists.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, finding no error in the sentencing judge's approach. Price J (with Bathurst CJ and Johnson J agreeing) noted that while a sentencing judge is not free to reject uncontradicted expert evidence without reason, the judge here had a legitimate basis for declining to accept the specific conclusion that the appellant's decision-making was impaired by his mental illness.

The sentencing judge accepted the diagnosis of schizophrenia as overwhelmingly probable, but found the psychiatrists' conclusion about impaired decision-making difficult to reconcile with the clear and sustained planning evident in the offending. That planning included acquiring a disguise a week in advance, enlisting a co-offender, using separate vehicles, and taking deliberate steps to obstruct a police investigation afterwards.

The Court noted that even the appellant's own counsel had acknowledged a "real tension" between the sophistication of the offending and the medical opinions. That concession reinforced that the judge's scepticism about the specific conclusion on decision-making was not unreasonable, even where the underlying diagnosis was accepted.

The sentencing judge's findings on mental illness remained favourable to the appellant in one respect: his Honour found that the illness reduced the weight to be given to general and specific deterrence. The Court confirmed that these findings were consistent with established principles and that, overall, no appealable error had been demonstrated under the standard set in House v The King.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court may decline to accept a specific conclusion drawn by expert psychiatrists, even where their evidence is uncontradicted, if the facts of the offending provide a legitimate basis for doubting that conclusion.
  • Accepting a psychiatric diagnosis does not compel acceptance of every opinion derived from that diagnosis. The sentencing judge accepted the schizophrenia diagnosis while rejecting the associated opinion on impaired decision-making.
  • Where the conduct underlying an offence reveals sustained planning, preparation, and calculated concealment, a sentencing court may find that evidence inconsistent with a claimed inability to think logically or weigh consequences.
  • The Court of Criminal Appeal confirmed that a concession by defence counsel at sentencing about a tension in the evidence can reinforce the legitimacy of a judge's departure from an expert opinion.
  • In dismissing the appeal, the Court affirmed that the sentencing judge's findings on mental illness still operated in the appellant's favour by reducing the weight given to deterrence, consistent with the principles in Director of Public Prosecutions (Cth) v De La Rosa.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(1)(a), 114(1)(c)

Cases:
- House v The King (1936) 55 CLR 499 (standard for appellate intervention in sentencing)
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (mental illness and deterrence in sentencing)
- Yang v R [2012] NSWCCA 49; (2012) 219 A Crim R 550
- Barbieri v R [2016] NSWCCA 295