AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 2 May 2023

R v Tourni

[2023] NSWDC 136

Theft & propertyPublic order & justice offences
CRIME PROPERTY OFFENCES

Citation: R v Tourni [2023] NSWDC 136
Court: District Court of New South Wales
Date: 2 May 2023
Judge: Scotting DCJ

Background

The offender, a 50-year-old tiler diagnosed with schizophrenia since 1999, appeared for sentencing after pleading guilty to one count of break, enter and commit a serious indictable offence contrary to s 112(1)(a) of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment.

In the week before the offence, the offender had ceased his antipsychotic medication and disengaged from mental health services, causing auditory and visual hallucinations to intensify. On the morning of 31 March 2022, he attended a café premises in Revesby that was under renovation. The offender believed the builder running the renovation had not paid him $300 for tiling work. He initially surveyed the premises, then returned home, collected a hammer and a jerry can of petrol he had filled days earlier, and broke into the café by smashing the door handle.

Once inside, the offender poured petrol across the floorboards and set the premises alight. The fire caused approximately $200,000 in damage, forced the evacuation of neighbouring shops, and delayed the café's renovation. The offender contacted emergency services shortly afterwards, telling operators he was hearing voices directing him to harm his neighbour.

Legal Issues

  • What was the appropriate sentence for a break, enter and commit a serious indictable offence, where the offender suffered from a severe mental illness that causally contributed to the commission of the offence?
  • To what extent did the offender's mental illness reduce his moral culpability and the weight to be given to general and specific deterrence?
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory proportion of the head sentence.
  • How should the breach of an existing Community Corrections Order be dealt with?

Decision

Objective seriousness and planning

Scotting DCJ found the offence objectively serious (at [51]). The conduct involved limited planning: the petrol was obtained two to three days beforehand, the offender conducted reconnaissance of the premises that morning, and he returned home to change clothes and collect tools before re-entering (at [52]). The serious indictable offence committed inside was the destruction of property by fire causing more than $60,000 in damage, and the total estimated loss was approximately $200,000 (at [54], [55]).

Moral culpability substantially reduced

His Honour found that the offender's moral culpability was substantially reduced by the combination of a severely deprived upbringing and the severity of his mental illness at the time of the offence (at [58]). The offender had been experiencing auditory and visual hallucinations for approximately a week before the offence and felt compelled to act on them (at [41]-[42]). He was less able to appreciate the wrongfulness of his conduct and had limited capacity to control his impulses (at [57]).

Deterrence

General deterrence was afforded reduced weight because there was a causal connection between the offender's psychotic symptoms and the commission of the offence, making him a less appropriate vehicle for general deterrence (at [61]). Specific deterrence remained relevant, primarily to reinforce to the offender that continued non-compliance with his treatment regime carries serious consequences (at [62]).

Aggravating and mitigating factors

The court found two statutory aggravating factors: the substantial damage caused by the offence (at [64]) and the fact that the offence was committed while the offender was subject to a Community Corrections Order for assault occasioning actual bodily harm (at [65]). His prior convictions, while noted, were largely driving-related or clearly connected to his mental illness, and his Honour declined to find the prior offending aggravating factor under s 21A(2)(d) established (at [63]). Mitigating factors included good prospects of rehabilitation, genuine remorse, reduced awareness of the consequences of his actions due to mental illness, and a 10% discount for the guilty plea (at [5], [66]-[68]).

Special circumstances and sentence

His Honour found special circumstances under the Crimes (Sentencing Procedure) Act 1999 because the offender's mental illness required an extended period of community-based treatment to reduce the risk of reoffending (at [75]). A sentence of 3 years imprisonment with a non-parole period of 1 year was imposed, to date from 5 May 2022 (at [76]). The court also recommended that the offender's supervising parole officer ensure engagement with the Bankstown Community Mental Health Team upon release (at [78]).

Orders Made

  • The offender was convicted of break, enter and commit a serious indictable offence contrary to s 112(1)(a) of the Crimes Act 1900.
  • For the breach of the Community Corrections Order (assault occasioning actual bodily harm), the offender was sentenced to a fixed term of imprisonment of one month, to date from 14 April 2022 and to expire on 13 May 2022.
  • For the principal offence, a term of imprisonment of 3 years was imposed, with a non-parole period of 1 year, to date from 5 May 2022. The non-parole period expires 4 May 2023; the head sentence expires 4 May 2025.
  • The offender was to be released on parole on 4 May 2023.
  • The court recommended that the offender's supervising officer direct him to comply with all reasonable directions from the Bankstown Community Mental Health Team, including taking prescribed medication and attending all arranged appointments.

Key Takeaways

  • Where there is a causal connection between an offender's psychotic symptoms and the commission of an offence, general deterrence may properly be afforded reduced weight in sentencing, consistent with the High Court's guidance in Muldrock v R (2011) 244 CLR 120 (at [61]).

  • Moral culpability can be substantially reduced where an offender's severe mental illness impaired impulse control and the capacity to appreciate wrongfulness, even where the conduct involved some degree of preparatory steps (at [52], [57]-[58]).

  • A finding of special circumstances is available where an offender's mental illness requires an extended period of supervised, community-based treatment following release, supporting a longer parole period relative to the head sentence (at [75]).

  • Limited planning in an offence does not preclude a finding of substantially reduced moral culpability where the planning occurred in the context of active and severe psychotic symptoms throughout the relevant period (at [52], [58]).

  • Rehabilitation prospects can be materially strengthened by evidence of medication compliance during custody, strong family support, stable post-release accommodation, and the offender's demonstrated insight into the need for ongoing psychiatric treatment (at [66]-[67], [69]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Muldrock v R (2011) 244 CLR 120
- R v Olbrich (1999) 199 CLR 270