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Court of Criminal Appeal 25 June 2021

Craft v R

[2021] NSWCCA 131

Assault & violence
HELD, NO ERROR

Citation: Craft v R [2021] NSWCCA 131
Court: NSW Court of Criminal Appeal
Date: 25 June 2021
Judges: Garling J, Beech-Jones J, N Adams J (reasons by N Adams J)

Background

The applicant pleaded guilty in the Local Court to assault occasioning actual bodily harm and reckless wounding, arising from two separate violent incidents involving a homeless woman in Newtown in September 2019. He also faced sentencing for a breach of a Community Correction Order relating to an earlier assault. The offences occurred in a public outdoor setting where both the applicant and the victim were drinking.

At the sentencing proceedings, the applicant's counsel tendered a neuropsychological report and a letter from a support worker, both addressing the applicant's diagnosed brain trauma, cognitive difficulties, and mental health conditions including severe depression and elevated hostility. The sentencing judge imposed an aggregate sentence of three years and three months imprisonment, with a non-parole period of two years.

The applicant sought leave to appeal, arguing that the sentencing judge had failed to adequately account for his cognitive impairment and mental health condition when assessing his moral culpability.

  • Whether the sentencing judge erred by finding there was insufficient evidence of a causal link between the applicant's cognitive impairment or mental health condition and his offending, and therefore declining to further reduce his moral culpability on that basis.
  • Whether the sentencing judge's treatment of the mental health evidence as a whole was open on the facts presented.

Decision

The Court of Criminal Appeal dismissed the appeal, finding no error in the sentencing judge's approach. N Adams J identified three difficulties with the applicant's ground of appeal.

First, the sentencing judge did not simply ignore the applicant's mental condition. His Honour had already reduced moral culpability on the basis of childhood deprivation, which was closely connected to the applicant's cognitive difficulties. The judge also found special circumstances, reducing the non-parole period to approximately 61% of the head sentence, and expressly recognised that the applicant's time in custody would be more onerous due to his mental condition.

Second, the neuropsychological report itself did not directly establish a causal connection between the applicant's cognitive impairment and the offending. The report described general characteristics of the applicant's condition but did not specifically address causation in relation to the index offences. This left a gap in the evidence that the sentencing judge was entitled to recognise.

Third, the applicant had himself given evidence acknowledging that intoxication caused him difficulty controlling his emotions. It was therefore open to the sentencing judge to find that alcohol, rather than cognitive impairment independently, was a causative factor. Given the overlap between the two bases on which reduced moral culpability was sought, and the absence of expert evidence directly linking the mental condition to the offending, the Court was satisfied the sentencing judge's finding was available on the evidence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is not required to reduce moral culpability on the basis of a diagnosed cognitive impairment or mental health condition where there is insufficient expert evidence establishing a causal link between that condition and the offending conduct.
  • Where mental health or cognitive conditions are taken into account in other ways, such as finding special circumstances, increasing the proportion of the sentence on supervised release, or reducing moral culpability through related findings such as childhood deprivation, a sentencing judge does not necessarily err by declining to apply a further, freestanding reduction.
  • The Court of Criminal Appeal confirmed that sentencing offenders with mental health conditions is an inherently discretionary exercise, citing Gleeson CJ's observation in R v Engert that it requires sensitive consideration of the variable facts of individual cases.
  • No error was established where the sentencing judge's findings reflected the actual evidence tendered: a report describing the applicant's general condition was not, without more, sufficient to compel a finding of causation.
  • In dismissing the appeal, the Court reinforced that multiple bases for mitigation can legitimately overlap, and a sentencing judge is entitled to treat related factors together rather than applying separate reductions for each.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Johnston v R [2021] NSWCCA 86
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Engert (1995) 84 A Crim R 67
- R v O'Donoghue (1988) 34 A Crim R 397
- Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14