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Court of Criminal Appeal 28 August 2020

R v Stonestreet

[2020] NSWCCA 212

Assault & violence
CRIME A PPEALS A PPEAL AGAINST SENTENCE MENTALLY ILL OFFENDER WHETHER SENTENCE MANIFESTLY INADEQUATE WHERE NON

Citation: R v Stonestreet [2020] NSWCCA 212
Court: NSW Court of Criminal Appeal
Date: 28 August 2020
Judges: Bell P, Davies J, N Adams J

Background

The respondent was diagnosed with psychosis in 2015 and treated with prescription medication. In March 2017, having stopped taking his medication in the weeks prior, he returned to his family home in Griffith in the early hours of the morning in a state of acute paranoid delusion. When his father entered a bedroom to retrieve a mobile phone, the respondent attacked him with a 40-centimetre butcher's knife, stabbing him multiple times in the chest, arms, hands, and leg before police intervened.

The father's injuries were serious: a collapsed right lung with bleeding, a 10-centimetre laceration to the liver causing internal bleeding, a laceration to the right hemi-diaphragm, and tendon lacerations to three fingers. He underwent multiple surgeries and continues to require ongoing treatment to his right hand and shoulder.

The respondent pleaded guilty to wounding with intent to cause grievous bodily harm under section 33(1)(a) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years and a standard non-parole period of seven years. The sentencing judge in the District Court imposed a total sentence of four years and six months, with a non-parole period of three years and one month. The Crown appealed, contending the sentence was inadequate.

  • Whether the sentencing judge erred by failing to take into account the protection of the community as a sentencing consideration, particularly in the context of the respondent's mental illness and non-compliance with treatment
  • Whether the overall sentence was manifestly inadequate given the gravity of the offending and the ongoing risk posed by the respondent

Decision

The Court of Criminal Appeal upheld both grounds of appeal. On the first ground, Davies J found that the sentencing judge had engaged extensively with the respondent's mental illness when assessing moral culpability and the reduced need for general deterrence, but had failed to address the separate and critical question of community protection. The psychiatric evidence before the sentencing judge established that the respondent had no insight into his mental illness, was non-compliant with treatment, and posed a significant and ongoing risk to others. These factors required a lengthier period of supervised parole, not merely a shorter head sentence.

The Court confirmed that a causal link between mental illness and offending does not simply reduce a sentence across the board. Rather, where the nature of that illness creates an ongoing risk to public safety, the need to protect the community becomes a significant countervailing consideration. This is a well-established principle drawn from R v Engert (1995) and Veen v R (No.2) (1988), which require sentencing courts to balance the reduction in moral culpability against the need for community protection.

On manifest inadequacy, the Court found that the head sentence of four years and six months was insufficiently long to provide the respondent with an adequate period of post-release supervision. The undiscounted sentence was assessed at eight years, which, after a 25 per cent discount for the early guilty plea, produced a head sentence of approximately six years. A comparable case involving similar facts, Alkanaan v R [2017] NSWCCA 56, was identified as a useful reference point.

Because the respondent's non-parole period had already expired by the time of the appeal hearing, the Court exercised its residual discretion not to increase the non-parole period. Instead, it extended the balance of term (the parole period) to ensure the respondent would be subject to adequate supervision and treatment support following his release.

Orders Made

  • Appeal allowed
  • Sentence imposed by Judge Grant in the District Court on 31 March 2020 quashed
  • Respondent re-sentenced to a non-parole period of three years and one month commencing 15 March 2017 and expiring 14 April 2020, with a balance of term of two years and eleven months expiring 14 March 2023

Key Takeaways

  • A sentencing court's failure to separately consider community protection, as distinct from moral culpability and deterrence, constitutes a legal error when an offender's untreated mental illness poses a significant ongoing risk to others.
  • The Court of Criminal Appeal confirmed that the reduction in moral culpability flowing from a mental illness does not automatically reduce every sentencing consideration. Where the illness creates continuing danger, community protection remains a weighty and independent factor.
  • Where a non-parole period has already expired by the time a Crown appeal is heard, the Court of Criminal Appeal retains a residual discretion to refrain from increasing that period while still extending the overall sentence to provide a longer supervised parole term.
  • Special circumstances justifying a departure from the standard statutory ratio between non-parole period and balance of term can be found where an offender requires an extended period of post-release supervision to stabilise a serious mental health condition.
  • In re-sentencing, the Court applied an undiscounted head sentence of eight years, reduced by 25 per cent for the early guilty plea, reflecting the objective seriousness of the offence while accounting for the respondent's substantially reduced moral culpability.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Alkanaan v R [2017] NSWCCA 56
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Director of Public Prosecutions (NSW) v Burton [2020] NSWCCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Elturk v R [2014] NSWCCA 61
- R v Engert (1995) 84 A Crim R 67
- R v Primmer [2020] NSWCCA 50
- Veen v R (No.2) (1988) 164 CLR 465; [1988] HCA 14