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Court of Criminal Appeal 5 November 2021

Blake v R

[2021] NSWCCA 258

Assault & violenceFirearms & weapons
CRIME SENTENCE APPEAL MENTAL ILLNESS ALCOHOL BENZODIAZEPINES MORAL CULPABILITY REDUCED “SOMEWHAT”

Citation: Blake v R [2021] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 5 November 2021
Judge(s): Leeming JA, Fullerton J, R A Hulme J (R A Hulme J delivering the leading judgment)

Background

The applicant was a man in his early fifties who, in the early hours of 31 March 2019, drove to his former partner's new partner's rural home. Armed with a lawfully owned .22 calibre pump action rifle, he entered through an open door while the two victims were asleep, woke them at gunpoint, threatened to shoot and kill them, and subjected them to approximately an hour of abusive ranting about his former relationship. He placed the rifle in his car part-way through but continued the confrontation. Because of the property's isolated location, the victims had no phone reception and spent the rest of the night hiding in a shed.

The applicant pleaded guilty in the District Court at Lismore to four offences: specially aggravated entry into a dwelling with intent to commit a serious indictable offence (carrying a maximum of 20 years), two counts of detaining a person for advantage (each carrying a maximum of 14 years), and use of an unauthorised firearm (maximum 5 years). His Honour Judge McLennan SC imposed an aggregate sentence of 5 years' imprisonment with a non-parole period of 3 years and 4 months, dating from 1 April 2019. Each indicative sentence had been reduced by 25 per cent to reflect early guilty pleas.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: that the sentencing judge had failed to properly account for his mental illness, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge gave adequate weight to the applicant's diagnosed Major Depressive Disorder and his use of alcohol and benzodiazepines (Valium) at the time of the offences, including whether these factors sufficiently reduced his moral culpability and diminished the relevance of general deterrence.
  • Whether the principles in Director of Public Prosecutions (Cth) v De La Rosa (concerning the sentencing of mentally ill offenders) required a more substantial reduction in sentence.
  • Whether the aggregate sentence of 5 years with a non-parole period of 3 years and 4 months was manifestly excessive having regard to the objective seriousness of the offences, the guilty pleas, and the applicant's personal circumstances.

Decision

Ground 1: Mental illness and moral culpability

A forensic psychiatrist, Dr Gerald Chew, had provided a report diagnosing the applicant with Major Depressive Disorder combined with a substance use disorder, and opined that these conditions directly contributed to the offending. The sentencing judge accepted this evidence and found that it reduced moral culpability "somewhat" and diminished the significance of general deterrence "to some extent," while still treating general deterrence as an important sentencing consideration.

The applicant argued that the De La Rosa principles required a more significant reduction. The Court of Criminal Appeal rejected this. The principles established in De La Rosa are not absolute, and their application depends on the specific circumstances of the case. Critically, there was no suggestion that the applicant was acting without knowledge of his actions or without an appreciation of their gravity. The Court found the sentencing judge's approach was appropriate and disclosed no error.

Ground 2: Manifest excess

To establish manifest excess, an applicant must demonstrate that the sentence is unreasonable or plainly unjust, not merely that a different judge might have imposed a lighter sentence (applying the well-established principles in House v The King). The Court found no such error here. The offences were objectively serious: they occurred in the middle of the night at an isolated rural property, the victims were asleep and vulnerable, they were threatened at gunpoint, and they suffered considerable and lasting psychological trauma.

The aggregate sentence of 5 years reflected substantial notional concurrency across the indicative sentences of 4 years, 3 years, 3 years, and 12 months. The sentencing judge also found special circumstances, reducing the non-parole period below the statutory default, in further recognition of the applicant's mental health condition. The Court was satisfied the sentence was commensurate with the overall criminality involved and was not manifestly excessive.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The De La Rosa principles governing the sentencing of mentally ill offenders are not applied as an absolute or automatic formula. Their weight depends on the degree to which the illness affected the offender's knowledge and appreciation of their conduct.
  • Where a forensic psychiatrist's report establishes that mental illness and substance use contributed to offending, a sentencing court may still treat general deterrence as an important consideration, provided it recognises some reduction in its significance.
  • Substance use involving both alcohol and benzodiazepines at the time of the offences was treated as a relevant mitigating circumstance, but did not negate culpability where the offender understood what he was doing and the gravity of his actions.
  • In assessing manifest excess, the Court of Criminal Appeal confirmed that a substantial aggregate concurrency across multiple serious offences, combined with a 25 per cent guilty plea discount and a special circumstances finding, can together reflect adequate allowance for an offender's subjective case.
  • Domestic violence offending characterised as an exercise of power and control over a former partner was expressly described by the sentencing judge as requiring denunciation, and the Court of Criminal Appeal found no error in that framing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(1)(b), 111(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)
- Firearms Act 1996 (NSW), s 7A
- Mental Health Act 2007 (NSW)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Aslan v R [2014] NSWCCA 114
- R v Wright (1997) 93 A Crim R 48