[2010] NSWCCA 194
Muggleton v R [2015] NSWCCA 62
Muldrock v The Queen (2001) 244 CLR 120
[2011] HCA 49
R v Fouani [2018] NSWCCA 230
The Queen v Kilic [2016] HCA 48
Veen v The Queen (No 2) (1988) 164 CLR 465
Source
Original judgment source is linked above.
Catchwords
[2010] NSWCCA 194
Muggleton v R [2015] NSWCCA 62
Muldrock v The Queen (2001) 244 CLR 120[2011] HCA 49
R v Fouani [2018] NSWCCA 230
The Queen v Kilic [2016] HCA 48
Veen v The Queen (No 2) (1988) 164 CLR 465
Judgment (4 paragraphs)
[1]
The Applicant's submissions
Counsel for the Applicant acknowledged that her Honour carefully and accurately summarised the Applicant's evidence about his mental health leading up to and on the day of his offence and carefully summarised the reports of Dr Dayalan and Dr Eagle.
He relied on the "well settled" principles that an offender's mental state at the time of committing an offence may reduce his moral culpability and the weight required to be given to general deterrence, retribution and denunciation, particularly when the mental condition contributes to the commission of the offence, and may make a custodial sentence more onerous for a mentally ill offender: Muldrock v The Queen (2001) 244 CLR 120; [2011] HCA 49, DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
He relied on the statement of Simpson J in Aslan v R [2014] NSWCCA 114 that:
"This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap, or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution.": [33].
Counsel submitted that in her comments, which are set out at [45-46] above, her Honour did not adequately consider the Applicant's mental illness and conflated issues of general deterrence and the need for denunciation of his conduct, that a careful consideration of the Applicant's mental illness at the time of the offence and which contributed to his offending was required by her Honour, such that it would have been open to her Honour to impose a lesser sentence or significantly reduce the non-parole period.
Counsel accepted that her Honour had a wide discretion and did not err in not quantifying the extent of the causal link which she accepted existed between the Applicant's mental health and his offence. Counsel submitted that despite having made findings about general and specific deterrence because of the Applicant's mental health, her Honour returned to those factors and decided that a lengthier sentence was to be imposed because of them, resulting in a sentence which became manifestly excessive.
[2]
The Crown's submissions on appeal
The Crown relied on the principle that the weight to be given to the various, and at times conflicting, purposes of sentencing is a matter for the sentencing judge: Muggleton v R [2015] NSWCCA 62 per Adamson J, and that the principles relating to mental illness are not automatic: Aslan per Simpson J at [34].
The Crown submitted that her Honour closely considered the opinions from the two psychiatrists, especially as to the connection between the Applicant's mental health and his offence, and carefully balanced the Applicant's subjective case, including his mental illness, with the serious offence. The Crown submitted her Honour did take into account that the Applicant's mental illness reduced his moral culpability and affected his experience of custody, appropriately reduced the importance of general deterrence and specific deterrence but considered that general deterrence remained relevant in light of the very serious offence. The Crown challenged the Applicant's submission that her Honour placed too much weight on denunciation.
The Crown submitted that the Applicant's strong subjective case could not lead to a sentence which was disproportionate to the seriousness of the offence, and submitted the sentence imposed was reasonable and not manifestly excessive.
[3]
Consideration
The question as to whether a sentence was manifestly excessive is whether it was unreasonable or plainly unjust: Dinsdale v R (2000) 202 CLR 321; Markarian v The Queen (2005) 228 CLR 357.
In Aslan, Simpson J, after reciting the principles restated by McClellan CJ at CL in DPP (Cth) v De La Rosa, stated, at [34]:
"It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of the mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (Principle 1); nor that he or she is an inappropriate vehicle for general deterrence (Principle 2); nor that a custodial sentence will weigh more heavily upon him or her (Principle 3); nor that the significance of specific deterrence is reduced or eliminated (Principle 4)… Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for".
N Williams DCJ gave careful consideration to the Applicant's evidence and the opinions of the two psychiatrists. Her Honour concluded there was a link between the Applicant's combined mental health issues and his offence, and found his mental health reduced his moral culpability for the offence and would make his time in custody more difficult. Her Honour stated there could be a reduction in both general and specific deterrence but went on to say that the need for general deterrence still "loomed large" given the serious nature of the offending. Her Honour stated:
"… in spite of the finding that there is a need for a reduction in general deterrence because of the offender's mental health issues, nonetheless, in my view, there still remains a real need for general deterrence, such is the nature of the offending".
Her Honour also stated there was still a role for specific deterrence to play because the Applicant's impulsivity and anger management issues, if not properly controlled, would pose a risk to the community.
Her Honour stated that the offending conduct and the resultant severe injuries required "a sentence of adequate length to denounce the offence".
Her Honour demonstrably considered and balanced the evidence before her as it related to the Applicant's mental health and purposes of sentencing.
The Applicant has not demonstrated that her Honour erred in her consideration of his mental illness or her consideration of the issues of general deterrence and the need for denunciation of his conduct. Nor has the Applicant demonstrated that the sentence imposed for his very serious offence was unreasonable or plainly unjust. I would grant leave to appeal, but dismiss the appeal.
The Orders I propose are:
1. Leave to appeal is granted.
2. The Appeal is dismissed.
[4]
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Decision last updated: 23 June 2023
Her Honour described the Applicant's subjective case as "compelling".
She noted his criminal history, including prior matters of personal violence, but stated they did not invoke the principles in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.
Her Honour took into account some personal references and programs the Applicant had undertaken in custody.
She referred to the Applicant's evidence in the sentence proceedings. He was 48 when he gave evidence, and 46 when he committed the offence. He said he needed plastic surgery for burns to his hands and legs he suffered in the commission of the offence. He said he had been sexually assaulted and assaulted in gaol and was in protective custody.
He said he was born from his mother's extramarital relationship. He had very little to do with his father and he felt his mother was distant with him and he came to resent her. He experienced sexual abuse as a child by two adults and a half-brother. He left school at 15. The victim, Colin McGuire, was his older brother and protected him when they were children.
He acknowledged a history of drug and alcohol abuse, but said it was intermittent and sporadic rather than a continuous problem. He said he had been using drugs, ice and cannabis, and alcohol before the offence and that they were risk factors in him becoming impulsive and violent. He acknowledged he needed to address his drug and alcohol problems and had begun with some courses in custody.
He said he had lost his job as a Council maintenance worker, which he enjoyed, in the months before the offence. He and his son then became homeless. The woman he was in a relationship with died by suicide. He began drinking and taking drugs.
He said he was not coping mentally and self medicated with drugs and alcohol. He sought help from his GP, and mental health teams at the hospital and mental health clinic at Dubbo. He said he felt helpless at not being able to get the help he was asking for.
He said that was one reason he wanted to burn down the house. He acknowledged it was illogical and irrational, but said he thought it would change or reset his and his family's situation and make people listen to how hurt he was. He accepted that his ice use the day before the offence affected his behaviour.
He said his intention was to burn the house, not his brother. He said the victim had always looked out for him and been kind to him. He had struggled to accept what he had done to him, but having read Mr McGuire's Victim Impact Statement he felt ashamed of his act and wanted to apologise to him. Her Honour took into account the Applicant's remorse expressed in his evidence and to third parties.
Her Honour's conclusions about the Applicant's mental health
Her Honour stated:
"With respect to the De La Rosa issues, the Crown has, in my view, properly conceded that there is a limited causal link between the well-established mental health issues, as outlined by both Dr Dayalan and Dr Eagle. They include post-traumatic stress disorder, the depression, the substance abuse disorders and the borderline personality disorder. Clearly, there were a number of mental health issues operating at the time of the offending behaviour that culminated in poor impulse control and difficulty with respect to impulse control and anger management.
I am of the view that there is a link between those combined mental health issues and the offending behaviour, which, in turn, reduces his moral culpability. I am also of the view that it will make his time in custody more difficult because I think it is accepted that, given what has been demonstrated already in the offender's time in custody and what this Court can take judicial notice of, the fact that the mental health services of Justice Health are clearly stretched, that accessing mental health assistance in custody will be more difficult and will make his time more onerous.
Accordingly, I accept that there is, first of all, a reduction in his moral culpability and that also, there can be a reduction in both general and specific deterrence. However, it is fair to say that the need for general deterrence, in my view, still looms large, given the serious nature of the offending and the need for community safety.
… I have addressed general and specific deterrence. In my view, this type of offending, where accelerants are used and thrown over another person, is so horrific to right-minded members of the community that there must, in spite of the finding that there is a need for a reduction in general deterrence because of the offender's mental health issues, nonetheless, in my view, there still remains a real need for general deterrence, such is the nature of the offending".
Her Honour said later:
"In my view, it is necessary to impose a sentence of adequate length to denounce the offence and to send a clear message that crimes involving this type of behaviour will simply not be tolerated.
I note the convictions for violence in the past. They have nothing to do with the nature of this offending. However I acknowledge that there is still a role for specific deterrence to play. In my view, there is necessarily to protect the community because somebody as impulsive and with such anger management issues, in my view, unless they are properly controlled, will pose a risk to the community".
Her Honour noted that she had had regard to statistics and to some comparable decisions to which she was referred, including The Queen v Kilic [2016] HCA 48 and R v Fouani [2018] NSWCCA 230, both of which the Crown relied on in this appeal.