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District Court 9 February 2021

R v AH

[2021] NSWDC 13

Assault & violenceTheft & propertyTraffic & drivingDomestic & family violencePublic order & justice offences
CRIME SENTENCE MULTIPLE COUNTS CHARGES ON FORM 1 (X 3) INDUCED PSYCHOSIS WHERE UNDERLYING MENTAL CONDITION

Citation: R v AH [2021] NSWDC 13
Court: District Court of New South Wales
Date: 9 February 2021
Judge: Wilson SC DCJ

Background

The offender, identified only as AH (a non-publication order protects the identities of minors and family members), was a 43-year-old man who committed a large volume of offences on a single day, 18 March 2019. He was arrested that day and remained in custody throughout the proceedings. The court described the case as a "sad" one, noting that the offending was out of character.

In the month leading up to the offending, the offender's behaviour had deteriorated markedly. He began to exhibit signs of religious preoccupation and increasingly erratic conduct. By the day of the offending, the agreed facts established that he was in a psychotic state, and the sentencing judge was required to assess what effect that psychosis had on his moral culpability.

The offending spanned domestic violence intimidation against his wife and children, assaults on family members, serious assaults on police officers (including causing grievous bodily harm to a sergeant), aggravated break-and-enter, negligent driving, and a range of related conduct. Twelve offences were sentenced directly, with a further eight charges taken into account on three Form 1 documents.

  • Whether the offender's drug-induced psychosis, and any underlying mental condition, reduced his moral culpability for the purpose of sentencing
  • Where the principal offences fell on the scale of objective seriousness, and whether the standard non-parole periods applicable to certain charges should be applied
  • How the Form 1 charges should be factored into the overall sentencing exercise
  • How the aggregate sentence should be structured, given that multiple serious offences were committed on a single day

Decision

The court accepted that the offender was in a psychotic state at the time of the offending, and that this significantly reduced his moral culpability. The sentencing judge considered the established principles governing drug-induced psychosis and mental condition as mitigating factors, drawing on authorities including Bugmy v The Queen and DPP v De La Rosa. The court found that while voluntary drug use cannot simply be treated as an excuse, a genuine psychotic state at the time of offending is relevant to the weight given to personal deterrence and retribution.

On the question of objective seriousness, the court assessed the most serious charges, particularly the count of causing grievous bodily harm to a police officer (s60(3)) and the aggravated break-and-enter (s112(2)), as falling somewhere between the low end and the mid-range of the scale. Because the offending occurred during a psychotic episode and was otherwise out of character, the court declined to apply the standard non-parole periods that Parliament has prescribed for those offences.

The three Form 1 documents, covering eight additional charges, were taken into account as increasing the overall penalty through greater weight on personal deterrence and the community's entitlement to retribution, consistent with the Court of Criminal Appeal's approach in Re Attorney General's Application (No 1 of 2002). The negligent driving charge (sequence 19) was dealt with by recording a conviction under s10A of the Crimes (Sentencing Procedure) Act 1999 with no further penalty imposed.

The court sentenced the offender to an aggregate term, balancing the number and seriousness of the offences against the substantially reduced moral culpability arising from the psychotic state, the offender's background, and the totality principle.

Orders Made

  • Convicted on all 12 principal charges (sequences 4, 6, 12, 13, 14, 15, 19, 21, 26, 28, 32, and 33)
  • Eight additional charges on three Form 1 documents taken into account in sentencing
  • Aggregate non-parole period of 4 years, commencing 18 March 2019 and expiring 17 March 2023
  • Aggregate head sentence of 8 years, expiring 17 March 2027
  • For the negligent driving charge (sequence 19): conviction recorded under s10A of the Crimes (Sentencing Procedure) Act 1999, with no additional penalty imposed

Key Takeaways

  • A genuine psychotic state at the time of offending can substantially reduce moral culpability, even where drug use contributed to that psychosis, and this reduction flows through to the weight given to deterrence and retributive sentencing purposes.
  • Standard non-parole periods are not mechanically applied: the District Court confirmed they represent the midpoint of objective seriousness for an offence and are one factor in a holistic sentencing exercise, not a fixed benchmark that attracts arithmetical adjustment.
  • Where charges are included on a Form 1, the court takes them into account by increasing the penalty for the principal offence to which they attach, primarily by placing greater weight on personal deterrence and community retribution, rather than by treating them as separate penalties.
  • Offending arising from a single episode, albeit involving many individual offences against multiple victims, remains subject to the totality principle, which requires the aggregate sentence to reflect the overall criminality without being crushing or disproportionate.
  • Under s10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for a relatively minor related charge without imposing any additional penalty, a course available where separate punishment would be disproportionate given the other sentences imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 58, 59, 60, 112
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 10A, 21A
- Inclosed Lands Protection Act 1901 (NSW), s 4
- Prevention of Cruelty to Animals Act 1979 (NSW), s 5
- Road Transport Act 2013 (NSW), s 117
- Summary Offences Act 1988 (NSW), s 5

Cases
- Ah-Keni v R [2020] NSWCCA 122
- Bourke v R [2010] NSWCCA 22
- Buckley v R [2021] NSWCCA 6
- Bugmy v The Queen (2013) 249 CLR 571
- DPP v Burton [2020] NSWCCA 54
- DPP v De La Rosa (2010) 79 NSWLR 1
- Muldrock v The Queen [2011] HCA 39
- R v Engert (1995) 84 A Crim R 67
- R v Fang (No 4) [2017] NSWSC 323
- R v Gagalowicz [2005] NSWCCA 452
- R v Henry [1999] NSWCCA 111
- R v Homann [2018] NSWSC 757
- R v Ponfield (1999) 48 NSWLR 327
- R v Rhodes [2017] NSWSC 694
- Re Attorney General's Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
- Skelton v R [2015] NSWCCA 320
- Tepania v R [2018] NSWCCA 247
- Tuncbilek v R [2020] NSWCCA 30