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8
Court of Criminal Appeal 30 September 2019

Masters v R

[2019] NSWCCA 233

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE KIDNAPPING AND ATTEMPTED ARSON BIZARRE OFFENDING OFFENDER WITH MENTAL ILLNESS RELEVANCE TO SENTENCING

Citation: Masters v R [2019] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 30 September 2019
Judge(s): Bathurst CJ, Macfarlan JA, Hamill J

Background

The applicant was sentenced in the District Court in August 2018 following his conviction on two offences: detaining a taxi driver for advantage (kidnapping under s 86(1) of the Crimes Act 1900 (NSW), maximum 14 years) and attempting to destroy property by fire (attempted arson under s 195(1)(b), maximum 10 years). Three additional related offences were taken into account on a Form 1.

The offending arose from a single, escalating incident on 3 October 2017 in which the applicant coerced a taxi driver at speed along a highway, physically assaulted him, and then made a wholly unsuccessful attempt to set fire to a nearby petrol station. The sentencing judge described the facts as "somewhat extraordinary and, in some respects, bizarre." The applicant had a minimal criminal history, strong character references, and no prior history of violent or bizarre behaviour.

The District Court imposed an aggregate sentence of 5 years with a non-parole period of 2 years and 6 months, commencing on 3 October 2017. The applicant sought leave to appeal on two grounds: that the sentencing judge failed to consider his reduced moral culpability arising from his mental illness, and failed to make any finding about his prospects of rehabilitation and likelihood of reoffending.

  • Whether the sentencing judge erred by failing to take into account the applicant's reduced moral culpability arising from his mental condition at the time of the offending
  • Whether the sentencing judge erred by failing to make findings about the applicant's prospects of rehabilitation and likelihood of reoffending
  • Whether, if either error was established, the Court of Criminal Appeal should re-sentence the applicant

Decision

The Court of Criminal Appeal found error on both grounds and granted leave to appeal.

On the first ground, the Court found that the sentencing judge had not adequately addressed the applicant's mental state at the time of the offending. The offences were committed during a change in the applicant's psychiatric medication regime, and evidence before the sentencing court established that this contributed to his behaviour. Hamill J held that this materially reduced the applicant's moral culpability and that the sentencing judge's failure to take it into account constituted a sentencing error. The Court noted that the absence of any prior history of violent or bizarre conduct made the mental illness explanation for the offending all the more significant.

On the second ground, the Court found that the sentencing judge had failed entirely to make any finding regarding prospects of rehabilitation or likelihood of reoffending, which was itself an error in the sentencing process. The evidence before the court, including the applicant's limited criminal history, genuine remorse, and the circumstances of the offending, supported a positive finding on rehabilitation. Hamill J was satisfied that the applicant had good prospects of rehabilitation and was unlikely to reoffend in any serious manner.

The Court re-sentenced the applicant. It discounted the sentences by 25 per cent for the utilitarian value of the guilty plea. It also found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), warranting a longer than usual ratio of parole to non-parole period.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant re-sentenced to an aggregate term of 4 years commencing 3 October 2017, expiring 2 October 2021, with a non-parole period of 2 years expiring 2 October 2019
  • Applicant eligible for release on parole at expiration of the non-parole period
  • Compensation order made in the District Court confirmed

Key Takeaways

  • A sentencing court's failure to address an offender's reduced moral culpability arising from mental illness at the time of offending constitutes a sentencing error, particularly where the mental condition is supported by evidence and the offending is otherwise inexplicable given the offender's history.
  • Where an offender commits offences during a change in psychiatric medication and has no prior history of violent or bizarre behaviour, the mental illness context is directly relevant to the assessment of moral culpability and must be reflected in the sentence.
  • Failing to make any finding on an offender's prospects of rehabilitation and likelihood of reoffending is itself an error in the sentencing process, not merely an omission in reasons.
  • The Court of Criminal Appeal confirmed that a guilty plea discount reflects both its utilitarian value and, where evident, genuine remorse on the part of the offender.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances permits the court to adjust the proportion between the head sentence and non-parole period; the Court of Criminal Appeal applied this to support a longer parole period to assist the applicant's reintegration and ongoing mental health management.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(1), 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33, 44, 53A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Gal v R [2015] NSWCCA 242
- Griffiths v The Queen (1989) 167 CLR 372
- Jung v R [2017] NSWCCA 24
- Kentwell v The Queen (2014) 252 CLR 601
- Lam v R [2015] NSWCCA 143
- R v Billy Krey [2019] NSWSC 762
- R v Champion (1992) 64 A Crim R 244
- R v DW [2012] NSWCCA 66
- R v Israil [2002] NSWCCA 255
- R v Kelsall [2015] NSWSC 480
- R v Letteri (Unreported, NSWCCA, 18 March 1992)
- Ryan v Regina [2017] NSWCCA 209
- WW v R [2012] NSWCCA 165
- Zuffo v R [2017] NSWCCA 187