AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 26 August 2022

Wornes v R

[2022] NSWCCA 184

Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCING SERIOUS OFFENCES OF DOMESTIC VIOLENCE RELEVANCE OF PSYCHIATRIC CONDITION PERSONALITY DISORDER ERROR ESTABLISHED

Citation: Wornes v R [2022] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 26 August 2022
Judges: Simpson AJA; Hamill J; Ierace J

Background

The appellant was a 46-year-old woman who pleaded guilty in the District Court to wounding with intent to cause grievous bodily harm under s 33 of the Crimes Act 1900 (NSW), arising from a sustained stabbing attack on her domestic partner. The offence was committed while she was on bail for earlier, less serious assaults on the same victim and subject to an apprehended domestic violence order (ADVO). Two common assault offences were taken into account on a Form 1, and two offences of contravening the ADVO were also before the court.

The appellant received a 25% discount for her early guilty plea. The District Court sentenced her to 8 years' imprisonment with a non-parole period of 5 years. Convictions with no further penalty were recorded for the ADVO offences.

The appellant sought leave to appeal on two grounds: that the sentencing judge wrongly excluded her diagnosed personality disorder from consideration under established sentencing principles, and that the judge erred in treating her lack of criminal history as carrying reduced weight in the context of domestic violence offending.

  • Whether a personality disorder can be taken into account on sentence in the same way as other psychiatric or mental health conditions, under the principles set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 ("the De La Rosa principles")
  • Whether the sentencing judge erred in holding "as a matter of law" that personality disorders fall outside those principles
  • Whether the sentencing judge erred in treating the appellant's lack of prior convictions as carrying less significance because the offending involved domestic violence

Decision

Ground 1: Personality disorder and the De La Rosa principles

The De La Rosa principles address how a court should assess the relevance of an offender's mental health to moral culpability and the weight to be given to general deterrence. The sentencing judge ruled, as a matter of law, that personality disorders are categorically excluded from those principles. The Court of Criminal Appeal held that ruling was wrong. Personality disorders are not excluded from the De La Rosa principles as a matter of law; each case falls to be assessed on its own facts.

The Court found that the sentencing judge's ruling was not supported by any of the authorities cited in support of it, including De Angelis v R [2015] NSWCCA 197 and R v Lawrence [2005] NSWCCA 91. Simpson AJA, who had decided De Angelis, expressly confirmed that nothing in that judgment was intended to establish any such categorical exclusion. The unchallenged psychiatric evidence before the sentencing judge was relevant to the appellant's moral culpability and to the weight to be given to deterrence. By treating it as legally irrelevant, the sentencing judge caused the proceedings to miscarry.

Ground 2: Lack of criminal history in domestic violence cases

Prior to the offences before the court, the appellant had no recorded criminal history. The sentencing judge held that this mitigating factor took on "less significance" in the context of domestic violence offending. The Court of Criminal Appeal held that was also an error. An offender with no prior convictions is entitled to a reduction in sentence on that basis, and the nature of the offending category does not diminish that entitlement.

Re-sentencing

Having identified error on both grounds, the Court exercised its sentencing discretion afresh. It assessed the s 33 offence as falling within the mid-range of objective seriousness, and took into account the serious impact on the victim, the appellant's mental health issues, her lack of criminal history, and her prospects of rehabilitation. A finding of special circumstances was made, justifying an adjustment to the ratio between the non-parole period and the balance of term.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Orders under s 10A of the Crimes (Sentencing Procedure) Act 1999 for the ADVO contravention offences confirmed
  • Sentence imposed in the District Court for the s 33 offence quashed
  • Appellant resentenced to a non-parole period of 4 years commencing 3 August 2019 and expiring 2 August 2023, with a balance of term of 2 years expiring 2 August 2025
  • Appellant eligible for release to parole at the conclusion of the non-parole period

Key Takeaways

  • Personality disorders are not excluded, as a matter of law, from the sentencing principles established in DPP (Cth) v De La Rosa. Whether such a disorder is relevant to moral culpability and the weight of deterrence is a factual question to be determined case by case.
  • The Court of Criminal Appeal confirmed that De Angelis v R [2015] NSWCCA 197 does not stand for the proposition that personality disorders are categorically outside the De La Rosa principles. Simpson AJA, as author of De Angelis, stated this expressly.
  • Where unchallenged expert psychiatric evidence establishes that a condition is relevant to an offender's moral culpability, a sentencing court that treats that evidence as legally irrelevant commits an error that can vitiate the sentence.
  • An offender's lack of prior convictions remains a mitigating factor entitling that offender to some reduction in sentence. The domestic violence context of the offending does not diminish that entitlement.
  • In resentencing, the Court took the s 33 wounding offence as falling in the mid-range of objective seriousness and reduced the total sentence from 8 years to 6 years, with a non-parole period reduced from 5 years to 4 years.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(3)(e), 32, 33, 44(2), 54A, 54B, 54C, 54D
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), ss 166, 289D, 289F(1)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- De Angelis v R [2015] NSWCCA 197
- R v Lawrence [2005] NSWCCA 91
- R v Verdins (2007) 16 VR 269; [2007] VSCA 102
- Brown v R (2020) 62 VR 491; [2020] VSCA 212
- Director of Public Prosecutions (Vic) v O'Neill (2015) 47 VR 395; [2015] VSCA 325
- R v Kennedy [2000] NSWCCA 527
- Athos v R (2013) 233 A Crim R 302; [2013] NSWCCA 205
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Davis v R [2015] NSWCCA 90
- Turnbull v R [2019] NSWCCA 97
- Lloyd v R [2022] NSWCCA 18
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518