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…

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 Tomlinson

Details

AGLC: R v Tomlinson [2007] SASC 222
Case: [2007] SASC 222
Decision Date: 21 June 2007

CaseChat Overview and Summary

The appellant, Tomlinson, appealed against the sentence imposed by the primary judge, contending that the sentence was excessive. The appellant had been sentenced to imprisonment for offences that included aggravated assault and robbery. The appellant argued that the seriousness of the offence should be balanced against the exceptional circumstances of the case, particularly his significant psychiatric disorder which was a contributing factor to his offending behaviour. The appeal focused on whether the sentencing judge had correctly balanced the considerations of general and personal deterrence against the appellant's mental health issues.

The court was required to determine whether the sentencing judge had erred in assessing the seriousness of the offending and the appropriateness of the sentence, particularly in light of the appellant's psychiatric disorder. The appeal hinged on whether the sentencing judge had appropriately considered the appellant's mental health in mitigating the severity of the sentence. The court also needed to examine if the sentence imposed was commensurate with the seriousness of the offence, taking into account the appellant's psychiatric condition and the likelihood of reoffending if he continued his treatment.

The court found that the sentencing judge had erred in giving insufficient weight to the appellant's psychiatric disorder in determining the appropriate sentence. The appellant's significant psychiatric illness, which had not been diagnosed or treated at the time of the offence, was a crucial factor that should have been given greater consideration. The court held that the seriousness of the offence, while considerable, should have been balanced against the appellant's mental health issues and the likelihood of reoffending if he continued his treatment. The court concluded that the sentence could appropriately be suspended given these exceptional circumstances.

The court allowed the appeal, quashed the original sentence, and ordered a new sentencing hearing. The court directed that the new sentencing hearing should appropriately consider the appellant's psychiatric disorder and the mitigating factors arising from his mental health issues. The court emphasized the importance of balancing the need for general and personal deterrence with the exceptional circumstances of the appellant's case.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

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.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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