Citation: [2020] NSWCCA 336
Court: NSW Court of Criminal Appeal
Date: 17 December 2020
Judges: Basten JA, Johnson J, Davies J
Background
The appellant pleaded guilty in the Local Court to one count of doing an act intending to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The offending arose from her participation in an agreement to accept $10,000 in exchange for her partner not providing a statement to police or giving evidence implicating another man in a stabbing. The maximum penalty for that offence is 14 years' imprisonment.
The District Court sentenced her to three years' imprisonment with a non-parole period of one year and nine months, applying a 25% discount for her early guilty plea. The sentencing judge set out, in some detail, evidence of the appellant's deprived upbringing, severe mental illness (including schizophrenia), and history of substance abuse.
The appellant sought leave to appeal, arguing that the sentencing judge had failed to give proper weight to those personal circumstances when determining the sentence, particularly in reducing moral culpability and moderating the weight given to general deterrence.
Legal Issues
- Whether the sentencing judge erred by failing to find that the appellant's deprived upbringing and social disadvantage reduced her moral culpability.
- Whether the sentencing judge erred by finding that mental illness did not reduce her moral culpability or moderate the weight to be given to general deterrence.
- Whether merely setting out mitigatory material in a judgment is sufficient to establish that it was properly applied in the sentencing exercise.
Decision
The Court of Criminal Appeal found error in both grounds of appeal and allowed the appeal. The central issue was not whether the sentencing judge had referred to the mitigatory material, but whether that material had been given appropriate weight for the purposes relevant to sentencing.
On the question of mental illness and general deterrence, the Court observed that the sentencing judge had rejected the appellant's severe mental illness as causally connected to the offending, but gave no indication that the illness would be given significant weight for any other purpose, including moderating general deterrence. The judge had instead emphasised that both specific and general deterrence "remain important factors" without addressing how the appellant's psychiatric circumstances affected that analysis. Basten JA concluded that, absent justification in the reasons, the proper inference was that the judge had not given appropriate weight to the mental illness in that context.
The Court rejected the Crown's submission that, because the sentencing principles were well known and the material was set out in detail, the Court should infer it was correctly applied. The Court confirmed that merely referencing mitigatory circumstances is insufficient where the reasons do not demonstrate how the material was actually used. Davies J, with whom Basten JA and Johnson J agreed, found that the combination of profound disadvantage, dysfunction, and mental health history warranted a reduction in the sentence.
On resentencing, the Court accepted new evidence that the appellant had engaged with prison programs, was receiving psychiatric treatment, and had expressed genuine remorse. Special circumstances were found on account of her being a first-time custodial offender, her mental health issues, and her substance abuse history, which required a longer supervisory period on release.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Sentence imposed by Judge King SC in the District Court on 22 June 2020 quashed.
- In lieu, the appellant sentenced to a non-parole period of 18 months commencing 30 June 2019 and expiring 29 December 2020, with a balance of term of 12 months expiring 29 December 2021.
- The appellant entitled to be released on parole on 29 December 2020.
Key Takeaways
- A sentencing court's obligation to consider mitigatory circumstances is not discharged simply by setting out the relevant evidence in its reasons. The court must demonstrate, through its reasoning, that those circumstances were given appropriate weight for each relevant sentencing purpose.
- Where an offender has severe mental illness, that condition can provide a powerful basis for reducing the weight given to general deterrence, even if no causal connection between the illness and the offending is established.
- The Court of Criminal Appeal confirmed that the principle in Bugmy v The Queen (2013) 249 CLR 571, requiring courts to give proper weight to the effects of profound deprivation and disadvantage, applies with equal force to mental health and substance abuse histories that emerge from such a background.
- Referring to personal subjective circumstances for one purpose (such as assessing causal connection to offending) does not satisfy the sentencing court's obligation to consider whether those same circumstances reduce culpability or moderate the weight of other sentencing objectives.
- In resentencing, the Court found special circumstances based on the combination of first-time custody, mental health conditions, and substance abuse issues, reflecting the need for a longer period of supervision upon release.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 319, 321, 324
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dang v R [2013] NSWCCA 246
- Dellow v R [2020] NSWCCA 301
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Egan v R [2017] NSWCCA 206
- Kentwell v R (No 2) [2015] NSWCCA 96
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Prince v R [2020] NSWCCA 268
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Millwood [2012] NSWCCA 2
- R v Sypher [2020] NSWDC 528 (sentence under appeal)
- Wood v R [2019] NSWCCA 309