Citation: REGINA v R [2000] NSWCCA 212 revised – 20/07/2000
Court: NSW Court of Criminal Appeal
Date: 31 May 2000
Judge(s): Sully J, Adams J
Background
The applicant, a 35-year-old man, pleaded guilty in the District Court to aggravated armed robbery, discharging a firearm in a manner likely to endanger life, and common assault. The offences arose from a single escalating criminal episode on 7 September 1997 in Thirroul, New South Wales.
The applicant entered a nursery armed with a loaded .44 calibre magnum revolver, struck the 57-year-old proprietor on the head with the butt of the gun (fracturing her skull), and stole money from the till. During his flight, he fired at least two rounds at a member of the public who pursued and confronted him, and kicked two other men who assisted in restraining him. Notably, just two days before the offences, the applicant had attempted suicide and had been briefly admitted to hospital as an involuntary psychiatric patient, before being discharged.
He was sentenced by Phelan DCJ in the District Court to concurrent terms of a minimum four years and an additional two years for the armed robbery and firearm offences, with a concurrent fixed term of 12 months for the assault. The applicant sought leave to appeal, arguing the sentence was manifestly excessive given his psychiatric condition at the time of the offending.
Legal Issues
- Whether the sentencing judge gave adequate weight to the applicant's severe depression and the circumstances of his premature discharge from psychiatric hospital two days before the offences
- Whether the effective sentence of six years (minimum of four years) was manifestly excessive in light of the applicant's mental health at the time
Decision
Adams J (with Sully J agreeing) accepted that the objective criminality was serious, describing the total conduct as falling "towards the upper end of seriousness." The episode escalated after the initial robbery, involving repeated firearm discharge towards members of the public. The court noted it was fortunate that no more serious injuries resulted.
The court accepted that the applicant's circumstances warranted a substantial reduction from what would otherwise have been an appropriate sentence. Two days before the offences, he had attempted suicide, been admitted as an involuntary psychiatric patient with paranoid delusions and suicidal ideation, and was subsequently discharged prematurely. The expert psychiatric evidence from Dr Westmore, which the sentencing judge accepted, confirmed the applicant had been suffering from a genuine psychiatric illness and should not have been discharged when he was.
However, the court rejected the submission that the sentencing judge had made insufficient allowance for these mitigating factors. Adams J concluded that the sentencing judge had dealt "fairly, indeed with sympathy" with the applicant, and that no error of fact or law was demonstrated. The court also noted that the hospital and treating doctor could not reasonably be criticised for failing to predict the offending, given the information available to them at the time.
The court found the sentence was well within the appropriate range available to the sentencing judge, and declined to interfere with the exercise of the sentencing discretion.
Orders Made
- Leave to appeal against sentence is granted.
- The appeal against sentence is dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an effective sentence of six years (minimum four years) for armed robbery involving a loaded firearm, shooting at members of the public, and assault causing a fractured skull was not manifestly excessive, even where the offender was suffering from severe depression at the time.
- Significant mitigating psychiatric circumstances, including a suicide attempt two days before the offending and premature discharge from an involuntary psychiatric admission, were accepted as warranting a substantial sentencing reduction, but did not render an otherwise proportionate sentence excessive.
- An appellate court will not interfere with a sentence where the sentencing judge demonstrably considered all relevant factors and the sentence fell within the available range, even if the appellate court might have reached a different result.
- Escalation of criminality during a single episode, such as firing a weapon at bystanders following an initial robbery, is a relevant aggravating consideration in assessing overall culpability.
- Expert psychiatric evidence accepted at first instance and on appeal confirmed that premature discharge from hospital was regrettable, but this finding did not of itself demonstrate that the sentencing judge's exercise of discretion miscarried.
Legislation and Cases Referenced
Legislation:
- Mental Health Act (NSW) (referenced in context of the applicant's involuntary admission)
Cases:
- No cases were cited in the judgment text provided.