Criminal Law and Procedure - Judgment and Punishment - sentencing - relevance of general deterrence when sentencing sufferer of mental disorder

R v Scognamiglio (1991) 56 A Crim R 81

R v Letteri unreported, New South Wales Court of Criminal Appeal, 18 March 1992, Gleeson CJ, Sheller JA and Badgery-Parker J

R v Mooney unreported, Victoria Court of Criminal Appeal, 21 June 1978, Young CJ, Lush and Jenkinson JJ

The Court orders that:

1. the appeal be allowed;

2. the sentences imposed by Gallop J be quashed;

3. the appellant be sentenced to imprisonment for six months in

relation to each of the seven counts of theft and that each

sentence be cumulative upon the other, making a head sentence of

three years and six months commencing on 27 October 1993 with a

non-parole period of 9 months also to commence on 27 October 1993.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BLACK CJ, FOSTER AND HIGGINS JJ This is an appeal against sentences imposed by Gallop J sitting as a judge of the Supreme Court of the Australian Capital Territory. His Honour sentenced the appellant to six months imprisonment in relation to each of seven counts of theft. His Honour ordered that each sentence be served cumulatively upon the other and ordered that there be a non-parole period of 18 months.

2. The appellant, John Francis Parnis, appeals against these sentences on the grounds that they are manifestly excessive and that his Honour was in error in placing too much weight on the principle of general deterrence. He also appeals on the ground that his Honour was in error in placing insufficient weight on subjective factors, in particular the appellant's psychiatric condition, and in declining to follow the principles referred to by the New South Wales Court of Criminal Appeal in R v Scognamiglio (1991) 56 A Crim R 81. These grounds were the subject of the principal contentions made on behalf of the appellant.

3. In his remarks on the sentence the learned judge referred to the element of general deterrence. He said:

"I have already, in hearing submissions on behalf of the

accused, intimated that there are broad questions of

commercial morality in the motor vehicle industry raised by

this case, and I have already intimated that, having regard

to those questions of commercial morality and honesty in

that industry, I think it appropriate to take into account

the element of general (deterrence) on the question of

sentence."

"In so far as I might be seen to be departing from anything

that was said by the Court of Criminal Appeal in the case of

Scognamiglio ... I respectfully decline to follow what their

Honours said there about the element of general (deterrence)

where an offence has been committed by a person in a

psychiatrically disturbed condition. I think that ... their

Honours' judgement (sic) is confined to the type of offence

with which their Honours were there concerned."

5. In Scognamiglio the New South Wales Court of Criminal Appeal considered the part that the element of general deterrence should play in the sentencing process when the offender suffers from a mental disorder or abnormality. The court adopted observations that had been made by Young CJ when delivering the judgment of the Victorian Court of Criminal Appeal in R v Mooney (unreported, 21 June 1978, Young CJ, Lush and Jenkinson JJ) that:

"In sentencing generally, it is necessary to balance

personal and general deterrence on the one hand with

rehabilitation on the other. But in the case of an offender

suffering from a mental disorder or abnormality general

deterrence is a factor which should often be given very

little weight ... general deterrence should often be given

very little weight in the case of an offender suffering from

a mental disorder or abnormality because such an offender is

not an appropriate medium for making an example to others."

(reproduced in Scognamiglio at 86)

6. In R v Letteri (unreported, New South Wales Court of Criminal Appeal, 18 March 1992,), the authorities were again considered and discussed, Badgery-Parker J, with whom Gleeson CJ and Sheller JA agreed, stated the principle in the following terms (at 14):

"The principle then is clear enough. It is correctly stated

as follows - that whereas general deterrence is a relevant

consideration in every sentencing exercise, it is a

consideration to which less weight should be given in the

case of an offender suffering from a mental disorder or

severe intellectual handicap. In an extreme case, the

proper application of this principle may produce the result

that considerations of general deterrence are totally

outweighed by other factors. In every case it is a matter

of balancing the relevant factors in a manner no different

from that which is involved in every sentencing exercise."

7. We agree with these statements of principle, although we should perhaps comment that we would not limit them only to cases where the intellectual handicap may be characterised as "severe".

8. Although the cases in which these principles have been discussed have generally involved crimes of violence, such as might readily be seen as the sudden product of, or contributed to, by mental illness, we see no reason to confine the principle to cases of any particular type. The principle that mental disorder has a bearing upon criminal conduct is of its nature of general application. It may well be that in cases of sudden violent crime the connection between the mental illness of the offender and the crime is more readily apparent than it is in a case such as the present, where the crimes were planned and executed over a substantial period, but that is a separate question.

9. The learned sentencing judge had before him evidence about the appellant's mental condition. The effect of the evidence from the appellant's treating psychiatrist was that the appellant suffered from a significant depressive illness and that there was a family history of suicide and other mental illness that made it likely that the depression was an inherited biochemical process named "major depression with melancholia". The doctor said that the appellant "certainly" would have had an impaired capacity to make decisions, that indecision in depressed patients was a major obstacle in treating them and that at times lack of concentration coupled with a self-destructive inclination led to law-breaking behaviour. He said that "all decisions made during depression are not necessarily the decisions that one would make if in full mental control and alertness."

10. This evidence was strongly relied upon before the sentencing judge by counsel for the appellant in support of his submission that a non-custodial sentence should be imposed. It was evidence that gained support from the unchallenged facts about the appellant's early childhood experiences, which involved treatment in a psychiatric institution, his suicide attempts in adult life and this treatment for depression prior to the time of the offences. It also gained support from the apparent connection between the financial strains in the appellant's life and the commission of the offences which, it may be noted, were inconsistent with his past behaviour.

11. As we read the learned sentencing judge's remarks on sentence, his Honour did not reject the evidence that the appellant was suffering from a mental illness at the time of the offences and that the mental illness played a part in their commission. Rather, his Honour considered that the mental illness should be put to one side as a matter not bearing upon the question of general deterrence. It was not suggested that his Honour failed to take into account the appellant's psychiatric condition, including his suicidal tendency, in determining an appropriate sentence. However, this was in the context of the judge's decision to put the appellant's mental condition to one side when considering the element of general deterrence, which his Honour considered was a very important matter to be taken into account.

12. It may well be, as submitted by counsel for the Crown, that his Honour, in an ex tempore judgment, did not express fully or accurately the view he took of the principles referred to in Scognamiglio. It may be that his Honour intended to say that the principles would be restricted for the most part to cases involving crimes of violence where the connection between the disorder and the criminal behaviour is likely to be more immediate and obvious. We must, however, pay regard to the way in which his Honour did express himself and in so doing we must accept that his reasons, as set out above, suggest that he construed too narrowly the principle emerging from cases such as Mooney, Scognamiglio and Letteri.

13. In these circumstances we have concluded that the learned sentencing judge erred in the exercise of his discretion and that the sentences should be set aside. We must therefore consider the appropriate sentences for ourselves on the material that was before his Honour, together with the affidavit material admitted into evidence before us. That affidavit material does not do more, however, than confirm the accuracy of his Honour's concerns about the appellant's condition.

14. The view taken by his Honour of the offences was that they raised real questions of commercial morality, that they demonstrated a pattern of dishonesty extending over a significant period from June to November 1992, and that they involved property stolen to the value, in round figures, of $185,000, which on any view is a substantial sum. His Honour concluded that the facts indicated that there was what he described as "very blatant repeated criminality of a very serious level." In arriving at the head sentence, the learned judge made no allowance for the mental condition of the appellant as a factor to be balanced against the element of general deterrence which, as we have noted, his Honour regarded as of great importance. Consistently with the principle to which we have referred, his Honour should, by reason of the appellant's mental condition at the time of the commission of the offences, have allowed a diminished role for the element of general deterrence.

15. We consider that consistently with the principle we have discussed, but having regard to the serious nature of the offences and the general need that they be deterred, the appropriate place for the mental condition to be balanced against the need for deterrence is in the fixing of the non-parole period. We note that in relevant respects the law of the Australian Capital Territory differs in this respect from the law now applicable in New South Wales. Having regard to these considerations we would impose a head sentence of the same magnitude as that previously imposed, but with regard to the non-parole period, we would take into account the contribution which the appellant's mental condition at the time of the offence made to their commission and also the effect of that condition in relation to the serving of the sentence of imprisonment that must inevitably be imposed. We are in total agreement with the learned sentencing judge that this is not a case in which the sentence of imprisonment can be suspended.

16. In determining the appropriate non-parole period we bear in mind that the appellant is for practical purposes a first offender. We also bear in mind that his conduct in this respect was inconsistent with his previous behaviour, and we say this of a man who was at the time approaching his 40th year. We bear in mind too that the appellant pleaded guilty, which is a relevant factor to take into account, and that he has shown remorse. In all the circumstances we consider that 9 months is an appropriate non-parole period. The sentences should date from the date of the original sentences, that is to say from 27 October 1993.

17. We strongly endorse the recommendations of the learned sentencing judge that the accused be given all possible psychiatric assistance. The Department of Corrective Services of New South Wales should be informed that the appellant is a suicidal risk and that every effort be made to take account of that. I do not think it is necessary for us to repeat the other matters to which his Honour referred, but we recommend that the authorities take appropriate note of those too.

18. In these circumstances, the order of the Court is that the appeal be allowed, the sentences imposed by Gallop J be set aside and in lieu thereof, the appellant be sentenced to six months imprisonment in relation to each of the seven counts of theft. Each sentence is to be cumulative upon the other so that there is a head sentence of three years and six months with a non-parole period of 9 months. The sentences and the non-parole period are to date from 27 October 1993.