R v Tomlinson - [2007] SASC 222

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TOMLINSON
[2007] SASC 222
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Sulan and The Honourable Justice David)
21 June 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against sentence - appellant pleaded guilty to aggravated serious criminal trespass in a place of residence, common assault and theft - appellant sentenced to immediate custodial sentence of two years and nine months' imprisonment - whether sentencing Judge erred in failing to find good reason to suspend the sentence - sentencing Judge placed too much weight on general and personal deterrence - appellant suffering mental illness at the time of the offending - insufficient weight placed on psychiatric and psychological evidence in respect of appellant's mental health - good reason exists to suspend sentence - appeal allowed by majority.
Criminal Law Consolidation Act 1935 (SA) s 20, s 39, s 134, s 170; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 38, referred to.
Dinsdale v The Queen (2000) 202 CLR 321; R v Tsiaras [1996] 1 VR 398; R v Anderson [1981] VR 155; R v Mooney (Supreme Court of Victoria, Court of Criminal Appeal, 21 June 1978, unreported), applied.
R v Krempin (2003) 142 A Crim R 56, discussed.
Bates v Police (1997) 70 SASR 66; R v A [2003] SASC 121; R v Humby; Police v Humby [2004] SASC 358; R v Jewell [2006] SASC 128; R v M (1996) 88 A Crim R 387; Veen v The Queen [No 2] (1988) 164 CLR 465, considered.

R v TOMLINSON
[2007] SASC 222
Court of Criminal Appeal: Bleby, Sulan and David JJ

BLEBY J: I agree with the orders proposed by Sulan J and with his reasons. I merely add a few observations of my own.
The earlier incident involving Mr Kuhfuss in 2001 clearly had a profound effect on the appellant. Sulan J has described some of those consequences.
The appellant was living with his father for two years from 2003 after the appellant’s marriage had broken down, and for a further period in 2006. His father described in more detail some of the dramatic changes which took place in the appellant after the earlier incident. The appellant would only go out with other people, as he felt unsafe on his own. If he did go out he would glance around and appear edgy, as if looking for danger or a threat. He could not stand crowds, even when shopping in malls. He gave up drinking alcohol to excess because he realised he could then be vulnerable to attack from an unknown direction or source. If he was woken up by touching, he would wake up swinging punches in a startled and aggressive mood. He lost interest in and would not watch television. He had what his father described as “unbelievable mood swings with threats of violence” directed at his father. His father described him as having “a profound anger and irritability and need to blame others for whatever goes wrong”. When asked by anyone to relate the details of the earlier assault he became very intense, uptight, aggressive and distressed. He also had what his father described as “profound” concentration problems and an aversion to group noise.
There is no doubt on the evidence that at the time of the offence the appellant was suffering from Chronic Post-traumatic Stress Disorder, a recognised psychiatric disorder, arising out of the assault in 2001. Dr Raeside described the symptoms as being ongoing, although having improved at the time of his report, some ten months after the offence. The appellant had had no significant treatment. It is also clear that he had been entirely free of such symptoms prior to the 2001 assault.
Dr Raeside described the appellant’s situation in the following terms:
I believe that Mr Tomlinson’s general problems with his mental health were significant factors operative at the time of the alleged offences. His increasing frustration, irritability, depression, and other factors were consistent with symptoms of his PTSD and depression. Associated with this were [sic] his increasing sense of powerlessness at being able to resolve the previous issue. His sense of loss at his previous marriage, relationship with his daughters, his work, and other financial successors appear to have been pronounced, also motivating him to engage in this behaviour. In my view, his mental illness can be seen as a significant mitigating factor in relation to these offences.
Dr Raeside recommended a concerted course of cognitive behavioural psychological therapy. He considered that despite the depressive symptoms he did not necessarily require a course of anti-depressants, but that this “might be useful” if his condition did not respond appropriately to the cognitive behavioural psychological therapy. Dr Raeside concluded:
Should Mr Tomlinson be convicted and receive a custodial sentence then it is unlikely that he would receive the level of psychological therapy that would be necessary and that he could otherwise receive in the community. Further, imprisonment would only represent yet another loss in a string of losses since the assault in 2001, which is likely to further fuel his irritability, anger, and sense of injustice as he perceived himself as a victim initially.
Enough has been said to demonstrate that his sense of injustice, aggravated by the situation in which the appellant found himself in respect of his family, his work, his financial affairs and his own personal security, all being symptomatic of an identifiable psychiatric disorder, rendered considerations of both general and personal deterrence of minimal significance in the sentencing process. Yet the sentencing Judge clearly thought differently, as indicated by the following passage in the sentencing remarks:
The court must send a strong deterrent message to remind those like you that taking the law into your own hands by using unlawful and in particular violent methods to extract moneys, will not be tolerated.
Not only was the appellant suffering from a serious and untreated psychiatric illness, the evidence was that his condition was likely to improve with treatment. This was another indicator of a significant degree of irrelevance of personal deterrence as a factor in sentencing. In fact, the implication from Dr Raeside’s opinion was that an immediate custodial sentence would not only prevent proper treatment but would aggravate the appellant’s sense of grievance.
The prospects of his successful rehabilitation were therefore reasonably good. At the time of sentencing he had arranged to commence the recommended course of therapy with a psychologist. Although this began some 2½ months before final sentencing submissions, unfortunately there was no information as to progress to that time. However, there was no reason to believe that, if begun, the appellant would not continue with the course, or that the course would not be effective.
On a number of occasions in the course of the sentencing remarks, the Judge referred to and was obviously influenced by the seriousness of the offending. It was serious. It warranted a sentence of imprisonment of the order of that imposed. However, the sentencing Judge appears to have overlooked the five ways referred to by the Victorian Court of Criminal Appeal in R v Tsiaras[1] in which a psychiatric illness on the part of an offender is relevant to sentencing. For this reason the sentencing discretion miscarried. Had those matters been taken into account, the sentence would, I consider, have been different.
[1] [1996] 1 VR 398 at 400.
I agree that the sentence should have been suspended. In the circumstances I agree with the orders now proposed by Sulan J.
SULAN J:
Introduction
The appellant pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (“the Act”), common assault, contrary to s 39 of the Act and theft, contrary to s 134 of the Act. The maximum penalty for the charge of aggravated serious criminal trespass in a place of residence is life imprisonment. In the case of assault the maximum penalty is two years’ imprisonment and for the offence of theft the maximum penalty is ten years’ imprisonment.
On 15 February 2007, a District Court Judge sentenced the appellant to one sentence of two years and nine months’ imprisonment and set a non-parole period of 18 months’ imprisonment.[2]
[2] Section 18A Criminal Law Sentencing Act 1988.
The single ground of appeal is that the sentencing Judge erred in failing to find good reason to suspend the sentence.
The circumstances of the offending
The offences took place at Robe when the appellant and another person, Roman Jules Mohi, entered the home of Bernhard Kuhfuss in the early hours of the morning of 13 December 2005. When Mr Kuhfuss awoke he realised that there were two men in his room. He recognised the appellant. Mr Mohi was armed with a rifle. The appellant demanded that Mr Kuhfuss hand over his chequebook, credit cards and mobile phone.
Mr Kuhfuss got out of bed and walked towards the kitchen. He was hit in the head. He lost consciousness and when he awoke the two men had disappeared. He discovered that his Visa card and a small amount of money, together with his pay cheque for $1,103.50, were missing. A physical examination the following day revealed bruising to Mr Kuhfuss’ right forehead, left temple, left cheek, arm and hip. He later realised that his motor car had been taken. Not long after the assault his BankSA Visa card account was accessed at Robe and later at Kingston. He immediately called the police. A total of $2,000 cash was withdrawn.
At about 5 am a police officer located Mr Kuhfuss’ vehicle at a roadhouse in Kingston. The appellant, Mr Mohi and a woman were apprehended by police at about 7 am that morning. Most of the money and other items were recovered.
The events which led to the home invasion date back to 2001. The appellant and Mr Kuhfuss knew each other. One evening in December 2001, the appellant, Mr Kuhfuss and others had been drinking at an hotel in Robe. They returned to Mr Kuhfuss’ home where a considerable amount of alcohol was consumed. At some stage during the evening Mr Kuhfuss’ girlfriend asked the appellant to leave. The appellant, who was very drunk, refused. A fight broke out between the appellant and Mr Kuhfuss. Mr Kuhfuss and another man were fighting with the appellant on the footpath. Mr Kuhfuss punched the appellant and hit the appellant’s head into the footpath. The appellant was severely beaten. He suffered significant injuries.
On the following day Mr Kuhfuss attended at the appellant’s home and apologised for what had occurred. The appellant contends that Mr Kuhfuss agreed to pay compensation to him and the appellant agreed not to make any complaint to the police about the assault. Mr Kuhfuss does not agree that he promised to make compensation payments to the appellant. The sentencing Judge did not resolve that issue. The appellant was sentenced on the basis that he genuinely believed that he was entitled to compensation for his injuries.
Submissions to the sentencing Judge
Psychological and psychiatric reports were tendered before the sentencing Judge. Dr Raeside, a forensic psychiatrist, concluded that as a consequence of the assault in 2001 the appellant had suffered a mental illness or mental impairment, namely a chronic post-traumatic stress disorder. The symptoms had been ongoing and had not been diagnosed or adequately treated prior to the commission of the offences.
It was not disputed that prior to the offending the appellant had never been convicted of any criminal offence. He had prior convictions for traffic offences, but had never been involved in any offence involving violence or dishonesty.
At the time of the offences he was 34 years of age and married with two children. Prior to the assault in 2001, the appellant was a hard-working fisherman who was in a stable marriage, raising two children. He was involved in a business arrangement with his brother and he was a well regarded member of the community in Robe. At the time of the assault he was employed as a cray fishing boat skipper. He was motivated to care for his wife and family and to advance his life. After the assault in 2001 his life changed dramatically. His family and friends noticed a marked change in his personality. He became withdrawn, moody and lost his motivation to work and look after his family. As a consequence he lost his self-esteem and confidence. His wife eventually left him, taking the two children with her. He did not work regularly. He lost money from the business venture in which he had been engaged. He argued with his brother and did not perform his part of the bargain in respect of the venture. He lost his fishing licence. He lost money through other failed business ventures.
He then turned to drugs and alcohol. He suffered nightmares and anxiety. He did not socialise as he had in the past. He exhibited signs of depression. He became disengaged from his family, suffered profound mood swings and was angry and irritable with his friends and family. A number of his family provided information about his change in character and his loss of motivation.
Although the appellant consulted his general practitioner, it appears that he was never diagnosed nor treated for the disorder which had overtaken him and which was directly referable to the assault in 2001.
The appellant became obsessed by the failure of Mr Kuhfuss to compensate him. The offences against Mr Kuhfuss occurred primarily because of his belief that his life had been ruined by the events in 2001.
He had met his co-offender at an hotel in Adelaide. They discussed the appellant’s problems and the failure of Mr Kuhfuss to pay compensation. His co-offender agreed to assist him to obtain compensation from Mr Kuhfuss.
In sentencing the co-offender, Mr Mohi, the sentencing Judge accepted that the appellant had convinced Mr Mohi that Mr Kuhfuss owed him money. The appellant believed that he had a moral, if not a legal right, to compensation for the incident which had occurred in 2001. The sentencing Judge accepted that the appellant’s belief was communicated to his co-offender and that his co-offender acted upon that in assisting the appellant.
In sentencing the appellant, the sentencing Judge accepted that the entry into Mr Kuhfuss’ home, the assault upon Mr Kuhfuss and theft of his money all occurred against the background that the appellant believed he had an entitlement to compensation for the earlier assault. The sentencing Judge observed that the circumstances in which the appellant committed the offences of aggravated serious criminal trespass and assault placed his offending in a very serious category. The Judge referred to the maximum penalty of life imprisonment and correctly noted that Parliament had imposed heavy penalties for the offence in order to protect people and ensure that they can live safely and securely in their homes.
The sentencing Judge referred to the earlier history of the assault by Mr Kuhfuss of the appellant, and observed that although the prior incident may explain the appellant’s conduct, it could not excuse his actions. The Judge said:
The court must send a strong deterrent message to remind those like you that taking the law into your own hands by using unlawful and in particular violent methods to extract moneys, will not be tolerated.
The sentencing Judge made reference to the appellant’s psychiatric disorder, and referred to Dr Raeside’s conclusion that the appellant’s mental illness can be seen as a significant mitigating factor in relation to the offences. The Judge referred to the diagnosis of post-traumatic stress syndrome and to the fact that the appellant has since that time received treatment. It appears that the treatment was having significant positive effects. The appellant was setting up a business to sell firewood and he was in a stable relationship. The Judge accepted that the offending was out of character and said:
In setting the non-parole period I take into account your prior good record, the fact that this offending was out of character and the fact that your mental state at the time appears to have played a significant role in the ill-considered decision to set out for Robe in the first place in company with Mr Mohi.
It was acknowledged that if the appellant was required to serve an immediate term of imprisonment it would interrupt the therapy upon which he had embarked. The Judge noted that Dr Raeside had commented that medical and psychiatric review would be appropriate if a custodial sentence was imposed and concluded:
While there are compelling factors of mitigation in your case I cannot, in the end, overlook the intrinsic seriousness of the offending on that night, particularly your role as the instigator in the decision to go to Robe that night, the fact that you chose to go in company with another man, entered the residence of your victim and inflicted actual and threatened violence upon him while armed with a rifle. They are also important factors in determining whether there is good reason to suspend.
In my view, such is the seriousness of this offending that notwithstanding all of the matters which have been put in mitigation and notwithstanding that the Director of Public Prosecutions has not opposed a suspended sentence, I take the view that in the proper exercise of the sentencing discretion on the facts before me, it is not open to me to suspend the sentence.
Submissions on appeal
Counsel for the appellant submitted that the unusual aspects of this case were such that good reason existed to suspend the sentence. He referred to the appellant’s antecedents, including the fact that, prior to December 2001, he had been happily married with two children aged eight and six, that he had been employed and highly regarded in the fishing industry. He referred to the large number of testimonials which had been provided to the sentencing Judge, all of which demonstrated and supported the appellant’s contention that he had been a hard working, good family man, well regarded and well liked within the community prior to December 2001. He emphasised that the events of 2001 had destroyed the appellant’s life.
Counsel for the appellant submitted that the circumstances of the offending were exceptional, and that the sentencing Judge had failed to have sufficient regard to the appellant’s mental condition and to his prospects of rehabilitation when concluding that good reason did not exist to suspend the sentence. He submitted that the sentencing Judge had placed too much weight on general deterrence and personal deterrence in determining that good reason did not exist to suspend the sentence.
Counsel for the respondent submitted that the appellant’s psychiatric condition was not sufficiently serious to conclude that good reason existed to suspend the sentence. He submitted that, although the Director of Public Prosecutions had not opposed the imposition of a suspended sentence, the sentencing Judge had considered all relevant matters and no error had been demonstrated for this Court to interfere with the exercise of the sentencing Judge’s discretion.
Discussion
In Dinsdale,[3] Gleeson CJ and Hayne J reaffirmed the principle that an appellate court will not interfere with the exercise of a discretion unless it concludes that the Judge at first instance acted upon a wrong principle, had regard to extraneous or irrelevant matters or failed to take into account a material consideration. An appellate court may interfere if the exercise of the discretion was unreasonable or plainly unjust. The court will then infer that there has been a failure to exercise the discretion properly.
[3] Dinsdale v The Queen (2000) 202 CLR 321.

Mr Michael Burvill, a Forensic Psychologist, examined the appellant in July 2006. He referred to the assault upon the appellant in 2001 and observed that the events of that night had led to a significant impact upon the appellant’s life and ability to function on a day-to-day basis. He had developed chronic symptoms of post-traumatic stress disorder and psychological distress.
At the time of being seen by Mr Burvill, the appellant had commenced to undergo psychological treatment by a psychologist who recommended that he continue a prolonged treatment for his post-traumatic stress disorder.
Dr Raeside, who is an experienced Forensic Psychiatrist, concluded that the appellant was suffering from a chronic post-traumatic stress disorder arising out of the assault upon him in 2001. His symptoms had been ongoing and he had not had any treatment for the condition prior to the commission of the offences. Prior to 2001, the appellant had not suffered a psychiatric disorder. Dr Raeside concluded that the appellant was suffering from a mental illness or mental impairment at the time of the offences. His mental health was a significant factor operating at the time of the alleged offences. Dr Raeside concluded:
His increasing frustration, irritability, depression, and other factors were consistent with symptoms of his Post-Traumatic Stress Disorder and depression. Associated with this were [sic] his increasing sense of powerlessness at being able to resolve the previous issue. His sense of loss at his previous marriage, relationship with his daughters, his work, and other financial successors appear to have been pronounced, also motivating him to engage in this behaviour. In my view, his mental illness can be seen as a significant mitigating factor in relation to these offences. [emphasis added]
Dr Raeside observed that the appellant had not received any significant treatment for his disorder. He was of the opinion that a concerted course of cognitive behavioural psychological therapy would be useful. He opined that if the appellant received a custodial sentence, it was unlikely that he would receive the level of psychological therapy that would be necessary. He observed that imprisonment would further fuel the appellant’s irritability, anger and sense of injustice.
The mental condition of an offender at the time of his offending is a relevant factor in determining sentence. Many offenders have varying degrees of psychiatric and psychological problems, sometimes associated with their offending. An offender’s mental state may assist the court in understanding why an offender may have acted as he or she did. As this Court has said on numerous occasions, the circumstances in every case will vary and the weight to be given to matters personal to the offender will depend on a variety of circumstances. For example, an offender who has a psychological condition which has been diagnosed and who refuses to seek or comply with treatment cannot expect a court to give as much weight to his mental condition as an offender who is not aware that he has a mental condition or whose mental condition has been misdiagnosed, particularly when that condition is a significant factor in the cause of his offending.
In Tsiaras,[4] the appellant was convicted of trafficking in cocaine and possessing cannabis. The quantities of cocaine involved were significant. The maximum penalty was fifteen years’ imprisonment. The appellant was sentenced to three years’ imprisonment with a non-parole period of twelve months.
[4] R v Tsiaras [1996] 1 VR 398.
There was professional evidence that the appellant suffered from an ongoing psychiatric illness, namely schizophrenia, which resulted in, amongst other problems, problems in his thinking. On the plea it was submitted that the sentencing Judge should have had regard to the applicant’s schizophrenic illness. The sentencing Judge had concluded that there was nothing in the medical evidence to indicate that any mental condition was suffered by the appellant such as to reduce his moral culpability. He concluded that the appellant possessed both legal and moral responsibility for his conduct.
The Court of Criminal Appeal (Charles and Callaway JJA and Vincent AJA) observed:
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
His Honour’s sentencing remarks leave us in no doubt that some, at least, of these factors were not given sufficient weight and that his discretion thereby miscarried.[5] [citations omitted] [underlining is mine]
[5] R v Tsiaras [1996] 1 VR 398, 400.
The Court, in re-sentencing the appellant, observed that the decisive factor in the case was not the nature of the offence but the circumstances of the offender.
In Anderson,[6] the appellant was found guilty of two counts of wounding with intent to murder, and one count of maliciously inflicting grievous bodily harm. There were three victims. The appellant had prepared to attack the first victim who was the proprietor of a factory which was situated nearby the appellant’s business. Whilst the first victim was closing his warehouse, the appellant shot him and then shot him again whilst he lay disabled on the ground. The second victim came to the rescue of the first and he was also shot. The third victim who went to the assistance of those who had been shot was shot at point blank range. The appellant was suffering from paranoid schizophrenia at the time. Young CJ and Jenkinson J considered whether the sentence was excessive, having regard to the mental condition of the appellant, to his age and to the fact that he had no relevant prior convictions.
[6] R v Anderson [1981] VR 155.
They referred to the decision of Mooney,[7] in which the applicant had pleaded guilty to one count of assault occasioning actual bodily harm and one count of wounding with intent to resist lawful apprehension. Mooney was sentenced to five and one half years’ imprisonment with a minimum term of 18 months’ imprisonment. On the plea evidence was given that at the time of the commission of the offences he was suffering from a mental condition described as mental depressive psychosis. After the offence he had undergone treatment and his condition was under control. One of the grounds of the application for leave to appeal against sentence was that the trial Judge had failed to give proper weight to his medical condition at the time of the commission of the offences and at the time of sentencing. The Chief Justice in Mooney’s case said:
How, then, is a trial judge to sentence an offender who adduces evidence in support of a plea in mitigation to the effect that he was mentally ill at the time of the commission of the offence?
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. Reference may also be made to an article by Dr. Glanville Williams in [1963] Crim. L.R. 730, at p. 742, although in any reference to practices in other jurisdictions the sentencing alternatives available must be kept in mind. 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. The mental condition of an offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender’s responsibility for the offence should be regarded as having been reduced.[8] [citations omitted]
[7] (Supreme Court of Victoria, Court of Criminal Appeal, 21 June 1978, unreported).
[8] R v Mooney (Supreme Court of Victoria, Court of Criminal Appeal, 21 June 1978, unreported) cited in R v Anderson [1981] VR 155, 160.
Lush J in Mooney also referred to the concept of general deterrence and to its importance as an instrument of social administration. He said:
… His mental condition, and in particular the possibility that his mental condition in the future may be different from that existing at the time of the offence, remain significant in the determination of what is an appropriate course to be adopted in relation to him as an individual and to the protection of the community from him and from those who might be disposed to imitate him.[9]
[9] R v Mooney (Supreme Court of Victoria, Court of Criminal Appeal, 21 June 1978, unreported) cited in R v Anderson [1981] VR 155, 161.
He concluded that a person’s mental condition may make it inappropriate that he be made the medium of a deterrent sentence. In Mooney’s case, the applicant received a bond on condition that he be subject to medical treatment.
In Anderson, Young CJ and Jenkinson J said:
It is apparent in this case that the learned trial Judge has not approached the task of sentencing the applicant in accordance with the principles discussed in Mooney’s Case. His Honour said that he took into account that the applicant was sick in the mind at the time when he committed these offences. We think, however, that His Honour did not give the mental condition of the applicant sufficient weight and that his discretion thereby miscarried. Accordingly we must set aside the sentences passed and ourselves re-sentence the applicant.[10]
[10] R v Anderson [1981] VR 155, 161.
In Krempin,[11] the appellant had pleaded guilty to armed robbery with an offensive weapon and assault with intent to rob whilst armed with an offensive weapon. The armed robberies occurred on the same night. In each case the appellant used a knife to threaten and rob service station attendants. The appellant had psychological problems and was an alcoholic. He had been diagnosed with alcohol-induced depression and anxiety. The sentencing Judge referred to the appellant being an alcoholic and that may have influenced the commission of the offences. Nevertheless, the sentencing Judge regarded the offences as very serious. He said that aspects of general deterrence and the protection of the community must always feature highly in the sentencing process.
[11] R v Krempin (2003) 142 A Crim R 56.
The appellant in Krempin contended that the sentencing Judge had failed to take into account properly his mental disorder. Bergin J, with whom Greg James and Hidden JJ agreed, referred to the general principle that where there is a causal relationship between mental disorder or abnormality suffered by an offender in the commission of an offence, general deterrence should often be given little weight because such an offender is not an appropriate medium for making an example to others.[12] The Crown had contended that the principle only applied in cases where the offender suffers from a significant mental illness. It was submitted that the applicant’s disorder was not significant in the relevant sense. Bergin J rejected that submission. She observed that the principle is not predicated upon the disorder being significant, although in most cases the disorder will be significant.[13] The appeal was allowed. The Court did not interfere with the head sentence of four years but reduced the non-parole period from 21 months to 18 months.
[12] R v Krempin (2003) 142 A Crim R 56, 64 [35].
[13] R v Krempin (2003) 142 A Crim R 56, 66 [44].
The relevance and weight to be given to general and personal deterrence will vary from case to case. However, in circumstances in which a person’s mental illness is causative of his offending, that is a feature which lessens the importance of general and personal deterrence in the sentencing process. This is particularly so if the person’s mental illness has not been diagnosed or if there has been a failure to treat or address properly a person’s mental illness.
Conclusion
At the time that the appellant committed the offences he was suffering from a significant psychiatric disorder. The psychiatric disorder had not been diagnosed and the appellant’s condition remained untreated at the time of the offence. Although he had consulted a general practitioner, the chronic post-traumatic stress disorder had not been diagnosed and the appellant’s condition over a number of years had not improved. He harboured a sense of injustice at the failure of Mr Kuhfuss to compensate him as he genuinely believed Mr Kuhfuss had promised. He believed he was a victim. His conduct on the night in question was motivated by his sense of injustice. That sense of injustice was heightened by his mental illness. After his arrest, he was referred to psychologists and to Dr Raeside. His condition was diagnosed and he commenced to undergo treatment. His condition has improved. However, he requires further, extensive, psychological treatment. There is good reason to conclude that if he continues his medical treatment, he is unlikely to re-offend in the future. This offending was primarily related to the appellant’s mental state at the relevant time.
If an offender is suffering from a serious psychiatric illness, that is a relevant matter to which a court will have regard. I agree with the observations in Tsiaras and Mooney. In particular, if a person’s psychiatric illness is a significant factor in his offending, general deterrence will have far less relevance than might usually be the case. Further, personal deterrence is of even less significance, as it relates to a person’s understanding of their moral and legal culpability. If at the time of an offence a person is suffering from a psychiatric illness, then personal deterrence is unlikely to be of relevance because, if the underlying psychiatric illness is treated, the cause of the offending will be extinguished. If a person with a serious psychiatric illness receives appropriate treatment, they are unlikely to re-offend.
The sentencing Judge erred in concluding that the offending in this case was so serious that the sentence could not be suspended. The sentencing Judge was primarily concerned with general and personal deterrence. Too little weight was given to the compelling psychiatric and psychological evidence which had been presented. In that regard, the Judge fell into error and the discretion miscarried.
This is a case in which general deterrence and personal deterrence have a lesser role to play because of the exceptional circumstances relating to the appellant. There is no doubt that the offending was extremely serious. Had this been the ‘unexceptional’ case, the Judge was correct that the sentence must demonstrate that those who take the law into their own hands will receive substantial sentences of imprisonment. Nevertheless, in this case the appellant’s conduct is explained by reference to his psychiatric disorder. That disorder is being treated and the likelihood of his re-offending, if he continues the treatment, is remote. In the circumstances, good reason exists to suspend the sentence.
I would allow the appeal. I would set aside the sentence of the District Court Judge.
The appellant has now been in custody since 15 February 2007, which is just over four months. I would therefore impose a sentence of two years and five months’ imprisonment with a non-parole period of 14 months’ imprisonment. I would suspend the sentence upon the appellant entering into a bond in the sum of $100 to be of good behaviour for three years. I would make it a condition of the bond that he be under the supervision of a Community Corrections Officer and that he undergo such psychological and psychiatric treatment as directed by his Community Corrections Officer, and that he comply with the advice and directions of the person administering treatment.
DAVID J. This is an appeal against sentence. The appellant does not complain that the head sentence or non‑parole period are manifestly excessive. The issue is whether the sentencing judge erred in failing to exercise the discretion to suspend the sentence.
The appellant pleaded guilty to charges of aggravated serious criminal trespass in a place of residence contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA), common assault contrary to s 39 of the Criminal Law Consolidation Act and theft contrary to s 134 of the Criminal Law Consolidation Act, arising out of events which occurred on 13 December 2005. The maximum penalty for the offence of aggravated serious criminal trespass is life imprisonment,[14] for common assault two years imprisonment,[15] and for theft, ten years imprisonment.[16]
[14] Criminal Law Consolidation Act 1935 (SA) s 170(1)(b).
[15] Criminal Law Consolidation Act 1935 (SA) s 20(3)(a).
[16] Criminal Law Consolidation Act 1935 (SA) s 134(1).
On 15 February 2007 the appellant was sentenced to two years and nine months imprisonment, with a non-parole period of 18 months. The sentencing judge held that due to the seriousness of the offending the sentence should not be suspended.
Facts
It was an agreed fact that in 2001 the male victim in this matter (whom I will refer to as “V”) assaulted the appellant. The assault occurred at V’s residence where there were a number of people present who had been drinking heavily. The appellant pushed V in response to a remark he had made. V and another man then pinned the appellant to the ground and punched him about the head and body. This incident was not reported to the police. The next day V apologised for the attack. The appellant alleged that after the assault V agreed to financially compensate him. This was disputed by V who claimed that he did not willingly offer compensation for the assault. He said that in August 2005 two men had approached him to negotiate a financial settlement in regard to the injuries and that as a result he had given them $2,900. The sentencing judge did not determine whether or not V offered to compensate the appellant. However, the judge found that either version of events revealed that the appellant had been brooding over his perceived grievances with V for a number of years, and sentenced on that basis.
With respect to the circumstances of the offending the subject of this appeal, I have read the reasons of Sulan J and I adopt his summary.
Circumstances of the Appellant
The appellant is 35 years old. As a result of the assault in 2001 he developed post‑traumatic stress disorder. This diagnosis was supported by a number of medical reports provided to the court. In addition, since 2001 the appellant has had symptoms of depression, irritability, insomnia and anxiety. He has been unable to maintain steady employment, has begun drinking heavily and using drugs, and has developed a gambling problem. The appellant’s marriage has collapsed and at present he does not have access to his two children, although he has instituted proceedings in the Family Court in an attempt to remedy this situation. Prior to 2001 the appellant had steady employment in the fishing industry and was involved in building a block of units with his brother. He is currently unemployed and resides with his girlfriend with whom he has been in a relationship for three years.

This offending was said to be out of character. The appellant had a number of prior convictions, however these were mainly for driving offences which were not relevant to sentencing in this matter. He had not committed any further offences while on bail.
On the morning of the trial the appellant pleaded guilty to lesser charges than those which were originally laid on the Information. The sentencing judge found that this plea had been entered promptly upon receipt of medical reports which confirmed that he did not have any defence available under s 269 of the Criminal Law Consolidation Act and he was therefore given full credit for his guilty plea.
Arguments on Appeal
The appellant appeals on the basis that the sentencing judge erred in failing to find good reason to suspend the sentence. His appeal is based on three main arguments:
·that his poor mental health required the sentencing judge to give less weight to issues of deterrence;
·that in considering the mitigating circumstances, greater weight should have been given to the appellant’s rehabilitative prospects; and
·given the extenuating circumstances in which the offences took place, society was not at risk from the appellant and there was therefore no need to impose an immediate custodial sentence.
The appellant submits that because of his post‑traumatic stress disorder, depression and other mental health problems, the sentencing judge ought to have placed less emphasis on the need for general deterrence. In support of this proposition he refers to the decisions in M[17] and Krempin.[18] He argues that these decisions are authority for the proposition that an offender who has a psychiatric condition should not be used as a means of providing general deterrence. These decisions follow the High Court decision in Veen v The Queen [No 2].[19] They hold that in some situations a serious psychiatric illness may reduce the weight placed on deterrence as a sentencing aim. However the types of psychiatric illnesses that these decisions relate to are those which are so serious that they diminish an offender’s criminal responsibility, eg resulting in a verdict of manslaughter instead of murder.[20] In Veen the appellant suffered from brain damage and in M the offender was schizophrenic.[21] The offender in Krempin suffered from post‑traumatic stress disorder and depression.[22] His depression was so serious that it resulted in a number of suicide attempts. He also suffered from auditory and visual hallucinations, psychotic episodes, a generalised anxiety disorder, panic attacks, chronic dysthymia and narcissistic behavioural traits.
[17] (1996) 88 A Crim R 387.
[18] (2003) 142 A Crim R 56.
[19] (1988) 164 CLR 465.
[20] Veen v The Queen [No 2] (1988) 164 CLR 465, 476.
[21] Veen v The Queen [No 2] (1988) 164 CLR 465, 469; M (1996) 88 A Crim R 387, 391.
[22] Krempin (2003) 142 A Crim R 56, 58-60.
It is clear that the appellant’s mental disorders, although serious, are in a different category than those of the parties in the abovementioned cases. In addition, it does not follow that because the appellant is suffering from a mental illness, other factors such as the seriousness of the offence cannot be significant in sentencing.
The appellant’s second argument is that greater weight should have been given to his rehabilitative prospects. It is argued that while the assault in 2001 had a significant negative effect on his life, he is now improving and that any term of imprisonment would be extremely detrimental to his rehabilitation. In support of this improvement, counsel points to his stable three year relationship, his court action to gain access to his children and his attempt at setting up a business supplying firewood.
There is no formula which prescribes the weight which should be given to each sentencing consideration.[23] The balancing process is an exercise of discretion which should not be interfered with on appeal unless there is evidence that the sentencing judge failed to take into consideration relevant matters (or took into account irrelevant matters).[24] It is clear that the sentencing judge was mindful of the impact a term of imprisonment would have on the appellant’s rehabilitation. The judge referred to the appellant’s present relationship, the Family Court action to gain access to his children and his new business venture. The judge took into account the fact that a custodial sentence might interrupt the appellant’s medical therapy, but thought that it might be possible for him to receive treatment while in prison. Clearly, the sentencing judge weighed up all the proper and relevant matters when considering whether or not to suspend the sentence.
[23] Bates v Police (1997) 70 SASR 66, 69.
[24] Dinsdale v The Queen (2000) 202 CLR 321, 324, 339.
The final argument on appeal is that the extenuating circumstances of the offending, namely the motivating factor of the previous assault, mean that the appellant is not a risk to society. Counsel for the appellant submits that this was not a random, unprovoked attack, but was one which was targeted towards a particular individual. It is suggested that the appellant’s lack of prior convictions provided further support for the argument that he is not a threat to society at large.
Whether or not a custodial sentence is required to protect the community is only one of many factors which must be taken into account.[25] The sentencing judge did not refer to the need to protect the community. Reference was made to the fact that the public has a right to feel safe in their homes. However, this was in the context of characterising the offence of aggravated serious criminal trespass as a very serious offence, rather than as part of a discussion about the need to imprison the appellant in order to prevent him committing further offences. In fact, the sentencing judge made express reference to the fact that this offending was quite out of character, indicating that the need to protect the community was not a motivating factor in the decision not to suspend the sentence.
[25] Criminal Law (Sentencing) Act 1988 (SA) s 10.
While not specifically argued on appeal, mention should be made of the fact that the Director of Public Prosecutions (“the DPP”) did not oppose suspension of the sentence. However, the DPP’s position is not binding, as the determination of an offender’s sentence is for the sentencing judge alone.[26] At most, it may be a factor which the sentencing judge can consider under s 10(1)(o) of the Criminal Law (Sentencing) Act 1988 (SA). The sentence cannot therefore be overturned on the basis that the DPP did not oppose suspension.
[26] R v A [2003] SASC 121, [14-21].
Exercise of Discretion
The decision whether or not to suspend a sentence is discretionary.[27] This Court will only interfere with such a discretion where it appears that the sentencing judge has made an error in exercising that discretion.[28] This error may be express, in that the judge clearly considered irrelevant material, failed to consider relevant material or was mistaken as to the facts.[29] Alternatively, it may be implied, in that the sentence imposed is so clearly inadequate or excessive that the sentencing judge must have made an error, even though the nature of the error is not apparent.[30]
[27] Criminal Law (Sentencing) Act 1988 (SA) s 38.
[28] Dinsdale v The Queen (2000) 202 CLR 321, 324-325, 329, 334, 339-340.
[29] Dinsdale v The Queen (2000) 202 CLR 321, 324, 339-340.
[30] Dinsdale v The Queen (2000) 202 CLR 321, 325, 329, 334, 340.
In R v Jewell[31] this Court stated that when deciding whether there is good reason to suspend a sentence the following factors should be considered:
·issues of personal and general deterrence;
·the seriousness of the offences; and
·any mitigating circumstances particular to the defendant.
However, there is no formula for balancing these factors when deciding whether or not to exercise the discretion.
[31] [2006] SASC 128, [17].
When considering personal deterrence, the sentencing judge determined that the offending was out of character for the appellant, evidenced by his lack of relevant antecedent convictions and the character references provided to the court. Implicit in the sentencing judge’s consideration of his prior criminal history is a recognition of the fact that the appellant had not previously served a sentence of imprisonment or benefited from a sentence suspension. However, the sentencing judge was also required to consider general deterrence. The judge stated:
The court must send a strong deterrent message to remind those like you that taking the law into your own hands by using unlawful and in particular violent methods to extract moneys, will not be tolerated.
In relation to the seriousness of the offences, the sentencing judge took into account the fact that Parliament has set a maximum penalty of life imprisonment for the offence of serious criminal trespass, stating that this indicates that this type of offending is viewed as being very serious, primarily because people have a right to expect to be safe in their own homes. The judge held that while these offences arose out of a grievance for an earlier attack:
The law simply cannot condone citizens taking the law into their own hands, particularly where the alleged incident giving rise to [the] grievance occurred four years previously and in circumstances where [V] chose not to report it.
The sentencing judge also considered the personal circumstances of the appellant including his age, mental and physical health, the fact that any time spent in custody may impact on his attempts to rehabilitate himself, his drinking and drug use, and his home life, including his present relationship and his attempts to gain access to his children.
The sentencing judge clearly weighed up and considered all the proper and relevant matters when considering whether or not to suspend the sentence. In addition, there was no suggestion that any matters which were irrelevant were considered or that there was a mistake as to the facts.
In order to be successful on appeal, the appellant needs to show that the sentence imposed was so obviously incorrect that, while not evident on the face of the remarks, the sentencing judge must have made an error in exercising the discretion.
As was stated by Perry J in R v Humby; Police v Humby[32] there is no tariff for aggravated serious criminal trespass because the different circumstances of each offence will result in differing levels of seriousness. However, what is clear is that where additional offences are committed after entering the premises, the penalty must be one which is adequate for all the offences committed.
[32] [2004] SASC 358, [51].
This is not a case of trespass for the purpose of theft or the like, where the offender is unaware that anyone is home when they enter the premises and the intention is merely to take property. This is an aggravated serious criminal trespass of a serious kind. As such, I cannot find that the decision not to suspend the sentence of imprisonment is so clearly wrong as to indicate an error on the part of the sentencing judge.
Conclusion
As the sentencing judge did not err in the factors considered when exercising the discretion to suspend the sentence, and the decision not to suspend the sentence is not obviously incorrect, I would dismiss the appeal.