Citation: R v Burton [2020] NSWDC 246
Court: District Court of New South Wales
Date: 26 May 2020
Judge(s): Abadee DCJ
Background
The appellant, a self-employed building company operator and father of four, pleaded guilty in the Wyong Local Court to assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 (NSW). The offence arose from a neighbourly dispute on 18 October 2019 at Killarney Vale, during which the appellant pushed the victim to the ground, causing a laceration to her right elbow requiring five stitches and a graze to her ankle.
The Local Court sentenced the appellant to a Community Correction Order (CCO) for two years. He appealed that sentence on the basis that it was too severe, with the primary argument centring on the alleged contribution of his mental health condition to the offending.
Before the offence, the appellant had applied under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) for the charge to be dismissed on mental health grounds. The Magistrate refused that application, and the matter proceeded to sentence.
Legal Issues
- Whether the appellant's mental health condition (a Major Depressive Episode and mild alcohol use disorder) materially reduced his culpability and warranted a more lenient sentence
- Whether the two-year CCO imposed by the Local Court was manifestly excessive in all the circumstances
- How considerations of general deterrence, specific deterrence, community protection, and rehabilitation should be balanced given the appellant's mental health and personal circumstances
Decision
Abadee DCJ assessed the objective gravity of the offending as above the low end of the range. The assault was not premeditated, involved no weapon, and caused injuries that were not overtly serious, but the conduct was impulsive and occurred in the victim's street, near her home.
On the mental health issue, the court accepted the clinical psychologist's diagnosis of a Major Depressive Episode but found that the condition played only a minor contributory role, if any, in the offending. The court noted that the appellant had been managing the same mental health issues for more than five years without violent incident, that depression is not generally a predictor of personal violence, and that his difficulties appeared situational rather than constitutional, connected to business pressures rather than an enduring or severe psychiatric condition.
The court also found that the appellant lacked genuine insight into his conduct. He had not apologised to the victim, referred to her conduct as "vexatious," and had not given direct evidence to either the Local Court or the District Court on appeal. The court assessed his prospects of reoffending as above the "low" level attributed by the expert, and expressed concern about his rehabilitation prospects given the limited evidence of willingness to engage with the treatment plan proposed.
Applying ss 3A, 5, and 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court held that the CCO was entirely appropriate. Although the circumstances could have justified close consideration of a full-time custodial sentence, no error was identified in the Magistrate's decision not to cross the s 5 threshold, and the District Court exercised its sentencing discretion afresh to the same result. The appeal was dismissed.
Orders Made
- The severity appeal against sentence was dismissed.
- The two-year Community Correction Order imposed by the Local Court was confirmed.
Key Takeaways
- A diagnosis of a Major Depressive Episode does not automatically reduce culpability or significantly moderate deterrence considerations, particularly where the condition has been present for years without contributing to prior violent behaviour and appears situational in origin.
- Under the principles in Muldrock and De La Rosa, mental illness may reduce the seriousness of an offence and the weight given to general deterrence, but it may equally heighten concerns about community protection; the balance depends on the specific facts.
- Absence of a direct apology to the victim, failure to give evidence in sentencing proceedings, and references to the victim's behaviour as provocative can all bear on a court's assessment of genuine remorse and insight.
- In dismissing the appeal, the District Court confirmed that a CCO under s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is a legitimate sentencing outcome that carries punitive, denunciative, and rehabilitative elements, consistent with the Court of Criminal Appeal's characterisation in Khoury v R.
- On a severity appeal, the sentencing discretion is exercised afresh by the appellate court; it is not necessary for an appellant to establish error in the original sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 8, 21A
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Khoury v R [2011] NSWCCA 118
- Muldrock v The Queen (2011) 244 CLR 120