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Court of Criminal Appeal 10 September 2002

R v Sivyer [2002] NSWCCA 410 revised - 04

[2002] NSWCCA 410

Theft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE BREAK ENTER AND STEAL STEAL FROM DWELLING HOUSE ENTER DWELLING WITH INTENT TO STEAL PLEAS OF GUILTY.

Citation: R v Sivyer [2002] NSWCCA 410
Court: NSW Court of Criminal Appeal
Date: 10 September 2002
Judge(s): Wood CJ at CL; Howie J

Background

The applicant pleaded guilty in the District Court to two counts of break, enter and steal, one count of entering a dwelling with intent to steal, and one count of stealing from a dwelling. The offences occurred across a compressed period in mid-to-late 2001, mostly targeting backpacker hostels in Byron Bay and Kings Cross, as well as a private apartment in Edgecliff. The stolen items included cameras and a laptop computer, which the applicant pawned for small sums.

The applicant had a documented history of mental illness, including diagnoses of bipolar disorder, schizophrenia, and narcissistic personality disorder, as well as poly-substance abuse. At the time of the offences he was on parole for a separate matter, and he had been largely resistant to accepting his diagnosis or taking prescribed medication. The District Court sentenced him to a total of four and a half years' imprisonment with a non-parole period of two and a half years, achieved through a combination of concurrent and accumulated sentences.

The applicant sought leave to appeal to the Court of Criminal Appeal on six grounds, principally challenging the weight given to his mental illness in the sentencing exercise and the extent of the accumulation of sentences.

  • Whether the sentencing judge failed to give adequate weight to the applicant's mental disorder when assessing the need for personal and general deterrence.
  • Whether it was appropriate to impose the sentences as a sliding scale based on maximum penalties, rather than sentencing for each offence individually and then considering accumulation.
  • Whether the overall extent of the accumulation of sentences was excessive having regard to the totality of criminality and the confined timeframe of the offences.
  • Whether any identified error warranted the Court of Criminal Appeal substituting fresh sentencing orders.

Decision

On the mental health ground, the Court acknowledged the well-established principle that where an offender's capacity for reasoned judgment is compromised by mental illness, the weight given to both personal and general deterrence must be reduced accordingly. However, the applicant's own consistent resistance to diagnosis, refusal of medication, and use of heroin as self-medication substantially complicated the operation of this principle. The Court found that, while the sentencing judge's characterisation of the applicant's attitude to treatment was not perfectly accurate, no appealable error resulted from the way mental illness was factored into the sentence.

On the methodology of sentencing, the Court expressed concern that the judge had adopted a "sliding scale" approach by setting sentences as proportions of maximum penalties, rather than first fixing appropriate individual sentences and then turning to accumulation. While this was criticised as a less satisfactory approach, the Court was satisfied the sentences for individual counts were within an acceptable range.

The Court did, however, identify error in the extent of accumulation. Given the relatively short overall timeframe of the offending and the total criminality involved, the degree to which sentences were stacked produced an aggregate that was excessive. Leave to appeal was granted and the appeal allowed on this basis alone.

The Court restructured the sentences so that the sentences for counts 2, 3, and 4 ran concurrently from the same commencement date, with the sentence for count 1 running cumulatively upon count 4 only. This produced a total sentence of three years and nine months, with an effective non-parole period of one year and nine months.

Orders Made

  • Leave to appeal granted; appeal allowed.
  • Sentences for counts 2, 3, and 4 made concurrent, each commencing 24 August 2001.
  • Count 4: fixed term of nine months, expiring 23 May 2002.
  • Count 2: fixed term of 16 months, expiring 23 December 2002.
  • Count 3: fixed term of 12 months, expiring 23 August 2002.
  • Count 1: three-year sentence preserved, commencing 24 May 2002 and expiring 23 May 2005, with a non-parole period of one year commencing 24 May 2002 and expiring 23 May 2003.
  • Total effective sentence: three years and nine months, with a non-parole period of one year and nine months.
  • Applicant to be released to parole under the supervision of the Probation and Parole Service on 23 May 2003.

Key Takeaways

  • Where an offender suffers from an ongoing mental disorder that impairs reasoned judgment, both personal and general deterrence carry reduced weight in the sentencing exercise, because the community recognises that the constraints of a sentence have a diminished impact on someone with a compromised ability to moderate behaviour.
  • An offender's active resistance to treatment and diagnosis may limit the mitigating force of mental illness in sentencing, even where the illness is well-documented and clinically established.
  • The preferred methodology for sentencing on multiple counts is to fix appropriate individual sentences first, applying discounts for relevant subjective factors including guilty pleas, and then to address accumulation separately as a distinct step.
  • Excessive accumulation of sentences across a confined period of offending can constitute a ground for appellate intervention, even where the individual sentences themselves fall within an acceptable range.
  • Under section 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal's task on a severity appeal is to examine whether any sentence, including the overall sentence, other than that imposed is warranted in law and should have been substituted.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Mental Health (Criminal Procedure) Act (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Crombie [1999] NSWCCA 297
- Regina v Engert (1995) 84 A Crim R 62
- Regina v Hammoud (2000) 118 A Crim R 66
- Regina v Henry [1999] 46 NSWLR 346
- Regina v Letteri (NSWCCA, 18 March 1992)
- Regina v Myers [2002] NSWCCA 162
- Regina v Scognamiglio (1991) 51 A Crim R 81
- Regina v Simpson [2001] NSWCCA 534
- Veen v The Queen (No 2) (1988) 164 CLR 465