R v AH

Case [2021] NSWDC 13 9 February 2021

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AH [2021] NSWDC 13
Hearing dates: 16 November 2020, 22 January 2021, 9 February 2021
Date of orders: 9 February 2021
Decision date: 09 February 2021
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
Full time custodial sentence imposed. Orders at [217]-[220]

Catchwords:
CRIME – sentence – multiple counts – charges on Form 1 (x 3) – where offending occurred while in psychotic state – whether moral culpability reduced by reason of drug-induced psychosis – where underlying mental condition

Legislation Cited:
Crimes Act 1900 (NSW) ss 58, 59, 60, 112
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 10A, 21A
Inclosed Lands Protection Act 1901 (NSW) s 4
Prevention of Cruelty to Animals Act 1979 (NSW) s 5
Road Transport Act 2013 (NSW) s 117
Summary Offences Act 1988 (NSW) s 5

Cases Cited:
Ah-Keni v R [2020] NSWCCA 122
Bourke v R [2010] NSWCCA 22
Buckley v R [2021] NSWCCA 6
Bugmy v The Queen (2013) 249 CLR 571
DPP v Burton [2020] NSWCCA 54
DPP v De La Rosa (2010) 79 NSWLR 1
Muldrock v The Queen [2011] HCA 39
R v Engert (1995) 84 A Crim R 67
R v Fang (No. 4) [2017] NSWSC 323
R v Gagalowicz [2005] NSWCCA 452
R v Henry [1999] NSWCCA 111
R v Homann [2018] NSWSC 757
R v Ponfield (1999) 48 NSWLR 327
R v Rhodes [2017] NSWSC 694
Tepania v R [2018] NSWCCA 247
Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
Skelton v R [2015] NSWCCA 320
Tuncbilek v R [2020] NSWCCA 30

Texts Cited:
None

Category: Sentence
Parties: Regina (ODPP)
AH (Offender)
Representation:
Counsel:
Ms S Hall (Offender)
Solicitors:
Ms A Gunn (ODPP)
Ms A Curnick (Offender)

File Number(s): 2019/86347; 2019/97580
Publication restriction: Non-publication order for complainants or any person under the age of 18 years

Judgment

Introduction

This is a sad case where the offending was out of character and committed whilst AH (‘the Offender’) was in a psychotic state. As a result of the offending, the offender’s family has been badly affected. The identity of any minors has been protected by a non-publication order and the use of initials and pseudonyms throughout these remarks.
The Offender is to be sentenced for 12 offences, 3 of which are related, and in respect of which guilt has been admitted.
There are also 3 Form 1 documents for 8 other charges, which the Offender has asked me to take into account when sentencing for the charges to which they attach.
The Offender was born 28 April 1977 and is 43 years of age. The offending took place on a single day, being 18 March 2019. The Offender was arrested that day, and has been in custody since that time.
The Offender is to be sentenced for the following charges:

H ending 648, sequence 4 – intimidate or intend fear of…

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 R v AH

Details

AGLC: R v AH [2021] NSWDC 13
Case: [2021] NSWDC 13
Decision Date: 09 February 2021

CaseChat Overview and Summary

The case of R v AH involved the defendant, AH, who was facing multiple charges related to criminal conduct. The nature of the dispute centred around whether AH's moral culpability was diminished due to his drug-induced psychotic state at the time of the offences. The court, being the sentencing jurisdiction, had to determine the appropriate sentence for AH, taking into account the specific circumstances of the case.

The primary legal issue before the court was whether AH's moral culpability was reduced due to the fact that he was in a drug-induced psychotic state when the offences were committed. This issue required the court to consider the impact of his mental state on his ability to form the requisite intent for the crimes charged. Additionally, the court had to weigh the seriousness of the offences against the mitigating factors presented by AH's mental condition.

The court found that while AH's drug-induced psychosis did affect his moral culpability to some extent, it did not absolve him of responsibility for his actions. The court considered the severity of the offences, which included multiple charges that warranted significant punishment, and the need for general deterrence. Ultimately, the court imposed a full-time custodial sentence on AH, reflecting the gravity of the crimes and the need to protect the community. The specific orders made by the court are detailed in the judgment from paragraphs [217] to [220].

Orders

Orders of the court

Full time custodial sentence imposed. Orders at [217]-[220]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v AH [2021] NSWDC 13

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 20 of 20 shown

Buckley v R
[2021] NSWCCA 6 Para 184

…In Buckley v R [2021] NSWCCA 6, the CCA considered a scenario where the offender was suffering from pre-existing mental health issues (Schizophrenia, Anxiety and Depression), as well as a drug-induced psychosis, at the time of committing a string of offences. Wright J (with whom McCallum and Garling JJ agreed) obs…
Ah-Keni v R
[2020] NSWCCA 122 Para 169

…The decision of Ah-Keni v R [2020] NSWCCA 122 was also referenced to support the submission that this Offender’s state of psychosis was due entirely to his abuse of drugs, rather than any mental illness which was affecting him.…
Director of Public Prosecutions (NSW) v Burton
[2020] NSWCCA 54 Para 144

…On the issue of the Offender’s intoxication, the Crown referred to the matters of DPP v Burton [2020] NSWCCA 54 and Bourke v R [2010] NSWCCA 22 to submit that self-induced intoxication cannot be taken into account as a mitigating factor in and of itself, nor mitigate the penalty, however, it may in some circumstanc…
Tuncbilek v R
[2020] NSWCCA 30 Para 170

…re that the effects of methylamphetamine use could include the behaviours comprising the subject offending, the remarks of Johnson J in Tuncbilek v R [2020] NSWCCA 30, from [63] to [83], confirmed that it could not be used to mitigate the sentence in any event.…
Tepania v The Queen
[2018] NSWCCA 247 Para 12

…The relevance of the standard non-parole period was most recently discussed in the Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247 by Johnson J who, at [110] in his judgment summarised the propositions that arise from the legislation, in which the provisions relevant to standard non-parole periods are foun…
R v Homann
[2018] NSWSC 757 Para 171

…Similarly, the remarks of McCallum J in R v Homann [2018] NSWSC 757 were referenced, which reasoned that where an offender’s psychosis plays a causal role in the commission of an offence, in circumstances where such a condition was caused by voluntary drug ingestion, it cannot act as a factor which reduces moral cu…
R v Rhodes
[2017] NSWSC 694 Para 168

…The Crown referred to both R v Fang (No. 4) [2017] NSWSC 323 and the remarks of Campbell J in R v Rhodes [2017] NSWSC 694, at [97], where it was affirmed that s21A(5AA) has application where a relevant mental condition was itself a transient effect of the person’s use of drugs on the occasion of his offending.…
R v Fang (No 4)
[2017] NSWSC 323 Para 145

…The Crown also referred the Court to the matter of R v Fang (No. 4) [2017] NSWSC 323, in submitting that where there is correlation between a mental illness defence and disease of the mind, as arising from an offender’s self-induced intoxication, then it too may be caught by s21A(5AA) of the CSP Act . The same auth…
Uniting Church in Australia Property Trust (NSW) v Miller
[2015] NSWCCA 320 Para 182

…. This is particularly so in circumstances where the mental condition contributes to the commission of the offence in a material way: Skelton v R [2015] NSWCCA 320 at [141].…
Bugmy v The Queen
[2013] HCA 37 Para 191

…that Campbell J’s description of that offender’s upbringing would satisfy the meaning of profound deprivation, so as to engage Bugmy v The Queen (2013) 249 CLR 571. He also suffered learning difficulties (at [63]).…
Muldrock v The Queen
[2011] HCA 39 Para 12

…ons relevant to standard non-parole periods are found in their amended form after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…urke v R [2010] NSWCCA 22 Buckley v R [2021] NSWCCA 6 Bugmy v The Queen (2013) 249 CLR 571 DPP v Burton [2020] NSWCCA 54 DPP v De La Rosa (2010) 79 NSWLR 1 Muldrock v The Queen [2011] HCA 39 R v Engert (1995) 84 A Crim R 67 R v Fang (No. 4) [2017] NSWSC 323 R v Gagalowicz [2005] NSWCCA 452 R v Henry [1999] NSWCCA 11…
Bourke v R
[2010] NSWCCA 22 Para 144

…On the issue of the Offender’s intoxication, the Crown referred to the matters of DPP v Burton [2020] NSWCCA 54 and Bourke v R [2010] NSWCCA 22 to submit that self-induced intoxication cannot be taken into account as a mitigating factor in and of itself, nor mitigate the penalty, however, it may in some circumstanc…
R v Henry
[2007] NSWCCA 90 Para 7

…nder presents no such risk, and it is not my opinion that increasing the period spent on parole would pose any substantive risk to society: R v Henry [2007] NSWCCA 90 at [28].…
R v Gagalowicz
[2005] NSWCCA 452 Para 5

…evidence that the taking of drugs would cause a psychotic episode so as to aggravate the offending (see the decision R v Fang at [78]; R v Gagalowicz [2005] NSWCCA 452 at [36]). The evidence in this case does not permit such a finding, and I therefore decline to make a finding of aggravation in that respect. I would…
Markarian v The Queen
[2005] HCA 25 Para 14

…bjective and subjective matters which are considered in synthesis in accordance with what McHugh J discussed in the decision in Markarian v The Queen [2005] HCA 25. Thus even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-p…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 6

…ce. The second is the community’s entitlement to extract retribution for serious offences: Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146 at [65].…
R v Ponfield
[1999] NSWCCA 435 Para 142

…In relation to sequence 33, being the aggravated break and enter charge, the Crown referred to the factors identified in R v Ponfield (1999) 48 NSWLR 327, although conceded that none of those factors are present, meaning that the seriousness of this offending is not enhanced in that way. The Crown did, however, submit…
R v Henry
[1999] NSWCCA 111 Para 146

…Reference was also made to R v Henry [1999] NSWCCA 111 in submitting that while drug addiction is a relevant factor on sentence, it is not, of itself, a mitigating circumstance, and one’s decision to persist with drug use, rather than seeking assistance, is a matter of choice, as was this Offender’s voluntary cessat…
Veen v The Queen (No 2)
[1988] HCA 14 Para 183

…s the application of the particular facts and circumstances of the case to the purposes of criminal punishment set out in Veen v The Queen (No 2) (1988) 164 CLR 465 at [488]. The purposes overlap and often point in different directions. It is therefore erroneous in principal to approach sentencing, as Gleeson CJ put…

Legislation cited in this decision · 7

Crimes Act 1900 (ACT)
112, 58, 59, 60 5 mentions (from Para 2)
Crimes (Sentencing Procedure) Act 1999 (NSW)
10A, 21A, 3A, 5 4 mentions
Animals Act 1979 (NSW)
5 2 mentions (from Para 1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
13 2 mentions (from Para 1)
Inclosed Lands Protection Act 1901 (NSW)
4 2 mentions (from Para 2)
Road Transport Act 2013 (NSW)
117 2 mentions (from Para 1)
Summary Offences Act 1988 (NSW)
5 2 mentions (from Para 1)

Medium Neutral Citation:	R v AH [2021] NSWDC 13
Hearing dates:	16 November 2020, 22 January 2021, 9 February 2021
Date of orders:	9 February 2021
Decision date:	09 February 2021
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Full time custodial sentence imposed. Orders at [217]-[220]
Catchwords:	CRIME – sentence – multiple counts – charges on Form 1 (x 3) – where offending occurred while in psychotic state – whether moral culpability reduced by reason of drug-induced psychosis – where underlying mental condition
Legislation Cited:	Crimes Act 1900 (NSW) ss 58, 59, 60, 112 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 10A, 21A Inclosed Lands Protection Act 1901 (NSW) s 4 Prevention of Cruelty to Animals Act 1979 (NSW) s 5 Road Transport Act 2013 (NSW) s 117 Summary Offences Act 1988 (NSW) s 5
Cases Cited:	Ah-Keni v R [2020] NSWCCA 122 Bourke v R [2010] NSWCCA 22 Buckley v R [2021] NSWCCA 6 Bugmy v The Queen (2013) 249 CLR 571 DPP v Burton [2020] NSWCCA 54 DPP v De La Rosa (2010) 79 NSWLR 1 Muldrock v The Queen [2011] HCA 39 R v Engert (1995) 84 A Crim R 67 R v Fang (No. 4) [2017] NSWSC 323 R v Gagalowicz [2005] NSWCCA 452 R v Henry [1999] NSWCCA 111 R v Homann [2018] NSWSC 757 R v Ponfield (1999) 48 NSWLR 327 R v Rhodes [2017] NSWSC 694 Tepania v R [2018] NSWCCA 247 Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146 Skelton v R [2015] NSWCCA 320 Tuncbilek v R [2020] NSWCCA 30
Texts Cited:	None
Category:	Sentence
Parties:	Regina (ODPP) AH (Offender)
Representation:	Counsel: Ms S Hall (Offender) Solicitors: Ms A Gunn (ODPP) Ms A Curnick (Offender)
File Number(s):	2019/86347; 2019/97580
Publication restriction:	Non-publication order for complainants or any person under the age of 18 years