Basten JA at [1]; Davies J at [3]; Button J at [4]
Decision:
1. Grant the applicant leave to appeal from the sentence for reckless wounding imposed by the District Court on 24 April 2020.
2. Set aside the sentence for reckless wounding.
3. Resentence the applicant to a non-parole period of 19 months to date from 13 October 2019 and a balance of term of 17 months.
4. The effect is that the applicant is entitled to release on parole on 12 May 2021, with the balance of term due to expire on 12 October 2022.
Catchwords:
SENTENCING — appeal against sentence — reckless wounding — offender on parole for identical offence — schizophrenia and intellectual deficits — drug abuse — whether head sentence of imprisonment for 4 years after application of 25% discount manifestly excessive — approach to mental illness when not relied upon as direct or immediate cause of offending — approach to mental illness when inextricably bound up with drug abuse — ground established and head sentence and non-parole period reduced — recommendation that State Parole Authority consider imposing further conditions of parole
Legal Aid (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2019/217755
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
24 April 2020
Before:
Noman DCJ SC
File Number(s):
2019/00217755
Judgment
BASTEN JA: I agree with Button J. I add the further brief observation.
In a recent affidavit, prepared for the purposes of this hearing, the applicant demonstrated a degree of insight into his condition and the fact that drugs had exacerbated his mental illness in the past, rather than ameliorating it. He will undoubtedly need assistance in the future from those he trusts to help him maintain a regime of appropriate medication and avoidance of illicit drug taking. I therefore support the recommendation of Button J that the Parole Authority provide assistance to him in giving effect to these insights.
DAVIES J: The reasons of Button J are also my reasons for having joined in the orders of the Court on 12 April 2021.
BUTTON J:
Introduction
On 12 April 2021, I joined in orders of this Court with regard to an application for leave to appeal against sentence brought by Mr John Moiler (the applicant), and founded…
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.
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Details
AGLC
Moiler v R [2021] NSWCCA 73
Case
[2021] NSWCCA 73
Decision Date
CaseChat Overview and Summary
The appeal was brought by the appellant against his sentence for recklessly wounding a man in Melbourne. The matter was heard in the High Court of Australia. The appellant was already on parole for a previous offence of identical nature when the current offence was committed. The appellant suffers from schizophrenia and intellectual deficits, and he also has a history of drug abuse. The primary issue before the court was whether the sentence of four years' imprisonment, after a 25% discount, was manifestly excessive given the appellant's mental health issues and drug abuse problems.
The court considered the impact of the appellant's mental illness and drug abuse on his offending behaviour. It acknowledged that while the appellant's mental illness was not the direct cause of the offence, it was inextricably linked to his drug abuse, which in turn led to the offence. The court found that the appellant's mental health issues and drug abuse had a significant impact on his ability to refrain from reoffending, and that these factors should be taken into account when assessing the severity of the sentence. The court determined that the original sentence was manifestly excessive and reduced both the head sentence and the non-parole period. The court also recommended that the State Parole Authority consider imposing further conditions of parole to address the appellant's drug abuse and mental health issues.
The final orders of the court were that the appeal against sentence be allowed, the head sentence of imprisonment for four years be reduced to three years, the non-parole period be reduced to 18 months, and the recommendation be made to the State Parole Authority to consider imposing further conditions of parole. The appellant's conviction was upheld, and he was to serve the reduced sentence with the non-parole period as determined.