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Blake v R

Blake v R

Case [2021] NSWCCA 258 5 November 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Blake v R [2021] NSWCCA 258
Hearing dates: 13 October 2021
Date of orders: 5 November 2021
Decision date: 05 November 2021
Before: Leeming JA at [1];
Fullerton J at [2];
R A Hulme J at [3]
Decision:
Leave to appeal refused

Catchwords:
CRIME – sentence appeal – mental illness – medical opinion that Major Depressive Disorder combined with substance use contributed directly to offences – alcohol – benzodiazepines – moral culpability reduced “somewhat” – significance of general deterrence reduced “to some extent” but still important – De La Rosa principles not absolute – no suggestion offender acted without knowledge of his actions and their gravity – sentencing judge’s approach appropriate – ground dismissed
CRIME – sentence appeal – manifest excess – aggregate sentence – guilty pleas – specially aggravated enter dwelling with intent to commit serious indictable offence – intimidation – detain person for advantage – use unauthorised firearm – substantial notional concurrency – considerable psychological trauma to victims – vulnerable victims – ground dismissed – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 86(1)(b), 111(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)
Firearms Act 1996 (NSW), s 7A
Mental Health Act 2007 (NSW)

Cases Cited:
Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
R v Wright (1997) 93 A Crim R 48

Category: Principal judgment
Parties: Andrew Paul Blake (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms S Kluss (Applicant)
Ms C Dodds (Crown)
Solicitors:
Swifte Law
Solicitor for Public Prosecutions

File Number(s): 2019/100709
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

18 June 2020

Before:

McLennan SC DCJ

File Number(s):

2019/100709

Judgment

LEEMING JA: I agree with R A Hulme J.
FULLERTON J: I agree with R A Hulme J.
R A HULME J: Andrew Paul Blake (the applicant) seeks leave to appeal in respect of a sentence imposed by his Honour Judge McLennan SC in the District Court at Lismore on 18 June 2020.
His Honour imposed an aggregate sentence of imprisonment for 5 years with a non-parole period of 3 years and 4 months, dating from 1 April 2019.
Details of the offences, including the indicative sentences assessed for each, are set out in the following table. The indicative sentences had each been reduced by 25% because of the applicant’s early pleas of guilty.

Specially aggravated (armed with dangerous weapon) enter dwelling with intent to commit serious indictable offence, namely, intimidation (Count 1)

s 111(3), Crimes Act 1900 (NSW)

Max. penalty 20 years

4 years

Detain person for advantage (Counts 2 and 3)

s 86(1)(b), Crimes Act

Max. penalty 14 years

Each:

3 years

Use unauthorised firearm (Count 4)

s 7A(1), Firearms Act 1996

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blake v R

Details

AGLC: Blake v R [2021] NSWCCA 258
Case: [2021] NSWCCA 258
Decision Date: 05 November 2021

CaseChat Overview and Summary

Blake v R involved the appellant's appeal against the sentence imposed by the sentencing judge. The appellant was convicted of multiple offences including entering a dwelling with intent to commit a serious indictable offence, intimidation, detaining a person for advantage, and using an unauthorised firearm. The appeal centred on the sentence's severity and the consideration of the appellant's mental health, specifically Major Depressive Disorder and substance use, in the sentencing process.

The legal issues before the court included whether the sentencing judge appropriately considered the appellant's mental illness and its impact on his moral culpability and the need for general deterrence. The appellant argued that the De La Rosa principles, which pertain to the impact of mental illness on sentencing, should have been more heavily weighed in his favour. The appellant also contended that the aggregate sentence was manifestly excessive, particularly given his early guilty pleas and the presence of considerable psychological trauma experienced by the victims.

The court found that the sentencing judge had appropriately balanced the mitigating factors of the appellant's mental illness with the gravity of the offences and the need for general deterrence. While the appellant's mental health issues did reduce his moral culpability and the importance of deterrence to some extent, they did not absolve him of responsibility for his actions. The court held that the De La Rosa principles were not absolute and could be adapted to the specific circumstances of each case. The appeal was dismissed, and the original sentence upheld.

The court concluded that the appellant's early guilty pleas, the significant psychological trauma suffered by the victims, and the vulnerable nature of the victims warranted a sentence that reflected the seriousness of the offences. The aggregate sentence, while severe, was appropriate given the circumstances. The court found no manifest excess in the sentence and dismissed the appeal.

Orders