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[2011] NSWCCA 70
Court of Criminal Appeal (NSW)
2011-04-13
Hulme J, Campbell JA, Hoeben J
Original judgment source is linked above.
Judgment 1CAMPBELL JA : I agree with RS Hulme J. 2RS HULME J : On 13 October 2009 the above named Applicant for leave to appeal was sentenced by Woods ADCJ in respect of seven offences. The offences and the sentences imposed were:-
Ground 1 19Putting aside the issue of the Applicant's mental condition which can more conveniently be dealt with under ground 2, the principal basis upon which this ground was argued was that the Applicant's sentence should have either fallen within, or more closely accorded with, the guideline promulgated in R v Henry & Ors (1999) 46 NSW LR 346. In that case the Chief Justice expressed the view that an armed robbery such as that with which the Applicant was charged should generally result in a sentence of imprisonment of between 4 and 5 years when it was characterised by:- (i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case. 20Attention was also drawn to the fact that in R v Henry the discount for a plea of guilty was of the order of 10% - see R v Thomson and Houlton (2001) 49 NSWLR 383 and that in the instant case the applicant had been granted a discount of 25% for an early plea. 21The argument based on R v Henry is not persuasive. The Applicant was aged 22, nearly 23 at the time of the offences, so if he comes within the description "young offender" he only just does so. Furthermore, at the time of his offending the Applicant was on conditional liberty. Numerous cases stress that this is a seriously aggravating factor in the cases of offences committed in those circumstances. That factor was not one in the Chief Justice's list. 22More significant is the Applicant's criminal history. He is a recidivist who has no regard for the standards required in any civilised society. While, of course, he is not to be punished again for past offending his manifestation of a continuing attitude of disobedience to the law leads to the conclusion that retribution, deterrence and protection of society all argue, and in his case argue strongly, for the imposition of a more severe penalty than does the circumstance of "no or little criminal history" referred to in R v Henry - see Veen v R [No.2] (1987-1988) 164 CLR 465 at 477. Furthermore, what the Chief Justice said in R v Henry was intended as a guideline, not an immutable rule even for cases falling squarely within paragraphs (i)-(vii) which I have quoted. Given the difference in circumstances, the decision in R v Henry does not demonstrate that the sentence imposed by Woods ADCJ for the Applicant's armed robbery offence was erroneous.
Ground 2 23There is no doubt that mental illness may argue in favour of a lesser penalty than would be imposed on someone not so suffering - see e.g. R v Letteri unreported, NSWCCA, 18 March 1992), and R v Engert (1995) 84 A Crim R 67. In R v Hemsley [2004] NSWCCA 228 Sperling J identified three ways in which an accused's mental condition could be taken into account as a mitigating factor. One was where it contributed to the commission of the offence in a material way thus reducing an offender's moral culpability. A second was where it might render the offender an inappropriate or less appropriate vehicle for general deterrence. A third was where it would have the effect that a custodial sentence might weigh more heavily. 24On the other hand, his Honour also drew attention to the fact that a mental illness might indicate that the offender presented a level of danger greater than usual, thus requiring greater weight to be given to specific deterrence and, I may add, protection of the community. 25One difficulty which the Applicant faces in this case is in establishing that any mental condition from which he suffered at the time of his offending or suffers now is such as to attract any of the first three considerations to which Sperling J referred. It is the Applicant's statement to Dr Allnutt to the effect that it was after the ingestion of speed and cannabis that the voices became louder in telling him what to do and his statement to Ms Robilliard that he ingested speed on the day of the armed robbery. In the second place there is the Applicant's statements to Professor Greenberg and in evidence to the effect that the cessation of medication has made him feel better. Thirdly there is the point made by Woods ADCJ in the following extract from his remarks:- I cannot overlook the fact that while he says he did not take his medication and "flipped out" he still had the ability and presence of mind to present himself at a car dealer's yard, successfully arrange a test drive of a motor vehicle and then travel to various parts of the central west the way he did. 26No one can sit in this court for very long without also being conscious of how often offenders, who are said to suffer from some mental condition arguing for a lesser sentence seem, despite that condition, to be able to plan and execute with reasonably efficiency offences of dishonesty. 27Woods ADCJ considered the evidence of the Applicant's mental condition and against the background of it fixed the sentences which he did. I am not persuaded that his Honour erred nor that the Applicant's condition argued in any of the three ways adverted to by Sperling J for a lesser sentence. Indeed were one to accept the Applicant's statements to Dr Allnutt and Ms Robilliard that the voices he heard were telling him to kill people his condition argues for a higher sentence than would otherwise be the case. In my view the Court should grant leave to appeal, but dismiss the appeal. 28HOEBEN J: I agree with RS Hulme J.
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