Citation: Moiler v R [2021] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 21 April 2021
Judges: Basten JA; Davies J; Button J
Background
The applicant, a 29-year-old Aboriginal man with a long history of schizophrenia, borderline intellectual functioning, and methamphetamine dependence, pleaded guilty in the Local Court to reckless wounding and resisting a police officer. The offences arose from a late-night altercation at a Surry Hills motel in July 2019, during which the applicant struck a neighbouring resident with a fire extinguisher, causing a laceration requiring surgery. The applicant was also on parole at the time for an identical offence.
In the District Court, Judge Noman SC sentenced the applicant to a head sentence of four years' imprisonment for the reckless wounding (after a 25% discount for early pleas), with a non-parole period of two years. The applicant sought leave to appeal on a single ground: manifest excess.
The Court of Criminal Appeal heard the application in April 2021. The court granted leave and resentenced the applicant, finding the original sentence was erroneously high given the weight of the subjective circumstances.
Legal Issues
- Whether the head sentence of four years (post-discount) for reckless wounding was manifestly excessive
- How mental illness should be approached in sentencing when it is not a direct or immediate cause of the offending
- How mental illness should be weighed when it is inextricably bound up with illicit drug use
- How to approach resentencing where immediate release on the hearing date would leave the applicant without support or supervision
Decision
Button J (with whom Basten JA and Davies J agreed) found the original sentence manifestly excessive. The starting point adopted by the sentencing judge was only a little over 18 months below the maximum penalty of seven years, which Button J considered disproportionate to the actual gravity of the offending and the applicant's compelling subjective circumstances.
The psychiatric evidence showed that the applicant had lived with schizophrenia since at least 2009, with repeated hospitalisations, complex delusional systems, hallucinations, and episodes where drug use triggered psychotic relapse. Button J accepted that the mental illness and drug dependence were so intertwined that they could not be cleanly separated for sentencing purposes. Although the mental illness was not identified as a direct cause of the specific offending, it significantly reduced the applicant's moral culpability and warranted meaningful weight in the sentencing exercise.
On resentencing, Button J held that a starting point of four years' imprisonment was appropriate, producing a head sentence of three years after the 25% discount. Under statute, a three-year head sentence carries automatic release at the end of the non-parole period. The court set a non-parole period of 19 months (expiring 12 May 2021, one month after the hearing) rather than allow immediate release on the day of the appeal, which would have left the applicant without housing, medication, or support.
Because the head sentence fell within a band where the court lacked power to impose additional parole conditions beyond those arising automatically under statute, Button J formally requested that the State Parole Authority urgently consider imposing further conditions. The aim was to maximise both the applicant's prospects of successfully completing his parole and the protection of the community.
Orders Made
- Leave to appeal granted from the District Court sentence for reckless wounding imposed on 24 April 2020
- Sentence for reckless wounding set aside
- Applicant resentenced to a non-parole period of 19 months commencing 13 October 2019, with a balance of term of 17 months
- Effect: the applicant was entitled to release on parole on 12 May 2021, with the balance of term expiring 12 October 2022
Key Takeaways
- A sentence that sets its starting point only marginally below the maximum penalty may constitute manifest excess where the objective seriousness of the offending and the offender's subjective circumstances do not justify such proximity to the maximum.
- Where mental illness and chronic drug abuse are inextricably intertwined, a sentencing court is not required to establish that the mental illness was the direct or immediate cause of offending before according it mitigating weight; the connection between the conditions and the offending can be sufficient.
- The Court of Criminal Appeal confirmed that even where an offender is on parole for an identical offence at the time of reoffending, significant mental health diagnoses can still substantially reduce moral culpability.
- In structuring a resentence, the court took account of the practical consequences of releasing an unwell offender without any support or supervision, adjusting the non-parole period expiry date by one month to allow time for arrangements to be made.
- Under Division 3 of Part 6 of the Crimes (Administration of Sentences) Act 1999 (NSW), a court imposing a head sentence of three years or less cannot add parole conditions beyond those imposed automatically by statute; where the court considers further conditions desirable, it can only request that the State Parole Authority act under s 128.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 35, 58
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 128, 158
Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194