Citation: Bustescu v R [2020] NSWCCA 113
Court: NSW Court of Criminal Appeal
Date: 4 June 2020
Judge(s): Harrison J, R A Hulme J, Wright J
Background
The applicant had been convicted after a judge-alone trial in the District Court at Campbelltown of aggravated break and enter (knowing persons were present in the dwelling), and two counts of common assault. The sentencing judge imposed a total head sentence of 3 years and 6 months, with a non-parole period of 1 year and 9 months, backdated to 28 October 2017.
The applicant sought leave to appeal against sentence. By the time the application was filed, he had already been released on parole, some six months earlier.
Legal Issues
- Whether the sentencing judge erred by applying the discredited approach in R v Way (treating the standard non-parole period as a fixed benchmark) rather than the correct approach established in Muldrock v The Queen
- Whether the sentencing judge failed to take into account, or give adequate reasons for taking into account, the applicant's mental health condition
Decision
Ground 1: Standard non-parole period methodology
The applicant's first ground rested on a single sentence in the sentencing remarks, from which it was argued that the judge had improperly confined her discretion by reference to Way-style reasoning. R A Hulme J declined to draw that inference, noting that Muldrock had been extensively applied since 2011 and that a clear basis for inferring error was required before it would be found. No such basis existed on the facts. The Court also rejected a subsidiary contention that the judge had misdescribed objective seriousness as "below the midrange" rather than "in the low range," finding no meaningful distinction between the two expressions in context.
Ground 2: Mental health and reasons
The applicant's mental condition was, in fact, a central feature of the sentencing judge's analysis of his subjective case. The sentencing judge referred to symptoms of schizophrenia, described his mental health as "unstable" and "fragile," accepted a diagnosis of post-traumatic stress disorder, found special circumstances partly to facilitate psychiatric treatment, and noted the onerous nature of his time in custody. The ground that the judge ignored or failed to address the mental health material was rejected.
The principal difficulty for the applicant was the absence of any established causal connection between his mental illness and the offending. The expert evidence on causation was based largely on the applicant's own account of events, which the trial judge had wholly rejected. Counsel also failed to articulate, beyond bare assertion, why the mental conditions were causative of the offending. The Court cited Aslan v R for the proposition that the sentencing principles applicable to mentally ill offenders describe potential relevance, not automatic consequences.
Leave refused
Beyond the absence of merit in both grounds, the Court weighed additional discretionary factors against granting leave. The application was filed six months after the applicant had been released on parole. The sentence imposed was close to the 3-year term his own counsel had sought below. The non-parole period was substantially below what the statutory ratio would have produced. Counsel in the appeal expressly accepted that the sentence was not manifestly excessive.
Orders Made
- Leave to appeal against sentence refused
Key Takeaways
- A bare assertion that an offender's mental illness caused or contributed to offending is insufficient. The Court of Criminal Appeal confirmed that there must be an articulated, evidentially grounded causal connection before that link attracts the mitigating weight associated with mental illness in sentencing.
- Expert evidence on the relationship between mental illness and offending is undermined when it rests on an account of events that the trial judge has already rejected as untruthful.
- Inferring a Muldrock error from ambiguous sentencing remarks requires a clear basis, not speculation. A single sentence that could be read multiple ways will not ordinarily sustain a ground of appeal.
- Refusing leave, the Court treated as relevant the facts that the applicant had already been released on parole, the sentence fell within the range he had himself sought below, and his counsel conceded the sentence was not manifestly excessive.
- Under established principle, the sentencing principles applicable to offenders with mental or intellectual disabilities state potential relevance only; they do not operate as automatic reductions in every case where a mental condition is present.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61 (common assault), s 112(2) (aggravated break and enter)
Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Aslan v R [2014] NSWCCA 114