R v White - [2009] SASC 239

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WHITE
[2009] SASC 239
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Kelly)
14 August 2009
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER
Appellant pleaded guilty to 21 counts of intentionally causing a bushfire – fires lit in the Adelaide Hills during the bushfire season but caused little damage – appellant suffered from post traumatic stress disorder, personality disorder and associated depression – psychiatric conditions caused appellant to commit offences but appellant could form the relevant intent, and knew the nature and quality of her acts – sentencing Judge gave greater weight to general deterrence and the need to protect the community than to the appellant's circumstances – sentencing Judge imposed a single sentence of imprisonment for 13 years and fixed a non-parole period of 9 years – whether sentence imposed by Judge manifestly excessive.
HELD: very serious sequence of offences – appellant not of 'seriously diminished responsibility' – gravity of the crime and the importance of general deterrence outweighed the mitigating effect of the appellant's psychiatric condition – sentencing Judge did not err in this respect.

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
Sentencing Judge gave greater weight to the principle of general deterrence and the need to protect the community than personal circumstances of the appellant – appellant suffered from psychiatric conditions – appellant had good prospect of recovery with treatment – treatment would be most effectively administered in the community – imprisonment of appellant would cause hardship to husband and children – appellant had no previous criminal history – appellant attempted to make reparation – whether sentencing Judge gave insufficient weight to personal circumstances of the appellant.
HELD: remarks of sentencing Judge indicated that he took the circumstances of the appellant into account – Judge did not treat deterrence and protection of the community as wholly displacing the appellant's personal circumstances – head sentence not excessive – more scope to take into account appellant's personal circumstances in fixing non-parole period – non-parole period fixed by the Judge excessive – appeal allowed – lesser non-parole period fixed.
Criminal Law Consolidation Act 1935 (SA) s 85B(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Wiskich (2000) 207 LSJS 431, applied.
Mason-Stuart v The Queen (1993) 61 SASR 204, considered.

R v WHITE
[2009] SASC 239
Court of Criminal Appeal: Doyle CJ, Bleby and Kelly JJ

DOYLE CJ: Ms White pleaded guilty to 21 counts of intentionally causing a bushfire, an offence against s 85B(1)(a) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is 20 years imprisonment. Acting pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), the sentencing Judge imposed…

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 White

Details

AGLC: R v White [2009] SASC 239
Case: [2009] SASC 239
Decision Date: 14 August 2009

CaseChat Overview and Summary

The case of R v White involved the appellant, who pleaded guilty to 21 counts of intentionally causing a bushfire. The fires, lit in the Adelaide Hills during the bushfire season, caused little damage. The appellant suffered from post-traumatic stress disorder, personality disorder, and associated depression, which contributed to her committing the offences. Despite her psychiatric conditions, the appellant could form the relevant intent and was aware of the nature and quality of her acts. The sentencing Judge imposed a single sentence of imprisonment for 13 years with a non-parole period of 9 years, giving greater weight to general deterrence and the need to protect the community than to the appellant's circumstances.

The central legal issue was whether the sentence imposed by the Judge was manifestly excessive, particularly in light of the appellant's psychiatric conditions and personal circumstances. The Court had to balance the gravity of the crime, the importance of general deterrence, and the appellant's personal mitigating factors. The Court also needed to determine whether the Judge gave sufficient weight to the appellant's personal circumstances, particularly her psychiatric conditions and prospects of recovery with treatment.

The Court held that the sequence of offences was very serious, but the appellant was not of 'seriously diminished responsibility.' The gravity of the crime and the importance of general deterrence outweighed the mitigating effect of the appellant's psychiatric condition. However, the Court found that the Judge had not erred in giving insufficient weight to the appellant's personal circumstances. The remarks of the sentencing Judge indicated that he took the circumstances of the appellant into account and did not treat deterrence and protection of the community as wholly displacing the appellant's personal circumstances. The Court concluded that the head sentence was not excessive, but there was more scope to take into account the appellant's personal circumstances in fixing the non-parole period. The non-parole period fixed by the Judge was excessive, and the appeal was allowed with a lesser non-parole period fixed.

The Court ordered that the appeal be allowed, the sentence imposed by the Judge be set aside, and a sentence of imprisonment for 13 years be substituted, with a non-parole period of six years and six months. The reasoning behind this decision was influenced by the appellant's previous good record and prospects of recovery with appropriate treatment, which suggested that she would be unlikely to reoffend after receiving proper treatment. The Court also emphasised the need for rehabilitation and the likelihood of its success, which required reducing the non-parole period. While acknowledging the seriousness of the offending and the immediate need for protection of the public, the Court recognised the importance of ongoing psychiatric treatment and intensive psychological therapy while in custody. The Court concluded that the appellant will require ongoing psychiatric treatment and intensive psychological therapy while in custody if she is to gain any benefit from a period of parole.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I turn to the non-parole period. There was greater scope for factors personal to Ms White to be taken into account in relation to the non-parole period. Having considered Ms O’Connor’s submissions, I have come to the conclusion that the non-parole period is excessive. I am particularly influenced in reaching that conclusion by her previous good record, and by the prospects of recovery with appropriate treatment. I consider that it is appropriate to allow a longer than usual period on parole, if Ms White can demonstrate to the Parole Board that she is fit for release under supervision. If she cannot, then of course she will continue to serve her sentence after the expiry of the non-parole period. In the circumstances of this case, a non-parole period that is half the head sentence is appropriate. Accordingly, I would allow the appeal for the purpose of setting aside the non-parole period, and in substitution fix a non‑parole period of six years and six months.Conclusion I would allow the appeal, set aside the sentence imposed by the Judge, and substitute a sentence of imprisonment for 13 years, in relation to which I would fix a non-parole period of six years and six months. BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons. In particular I agree that the need for rehabilitation and the likelihood of its success require that the non-parole period be reduced for the reasons that he gives. This has been a particularly difficult sentencing exercise. The appellant’s distressing personal history and resulting psychiatric condition, which explain her offending, were only revealed, even to her immediate family, after her arrest for these offences. The evidence suggests that, after appropriate ongoing treatment, the appellant will be unlikely to offend again. For the time being, however, because of the seriousness of the offending and the immediate need for protection of the public, a substantial custodial sentence is required. However, the evidence is also clear that the appellant will require ongoing psychiatric treatment and intensive psychological therapy while in custody if she is to gain any benefit from a period of parole. I trust that that will be afforded the same priority while the appellant remains in custody as would any serious physical illness. KELLY J: I agree with the reasons of the Chief Justice that the head sentence of thirteen years is not excessive. However, in my respectful view, the appellant has not demonstrated any error in relation to the fixing of the non‑parole period which would justify the intervention of this Court. It might be observed that a non-parole period of nine years which represents approximately seventy percent of the head sentence, is in all of the circumstances, somewhat high. Equally it might be observed that a non-parole period which represents approximately fifty percent of the head sentence, is somewhat low. It is always a matter of degree and to some extent, subjective assessment. However, this Court may only interfere with a discretionary decision on appeal if error is identified or, if no particular error has been identified, the sentence is so manifestly excessive to warrant the conclusion that it must have been infected by error.

Ratio Decidendi

Legal Principle Established

The Judge adopted a starting point of 18 years imprisonment. He noted that although Ms White did not co-operate with police in the early stages of their investigation, and did not enter her pleas of guilty at the earliest opportunity, she deserved significant credit for her pleas of guilty. He imposed a head sentence of 13 years imprisonment, and fixed a non-parole period of nine years.Consideration of appeal The task of the sentencing Judge was difficult. These were very serious offences. The consequences, had any one of the fires got out of control, could have been catastrophic for the community. The danger of bushfires, especially in areas like the Adelaide Hills, is very great. The community expects the courts to impose a sentence for such offending that will protect the community, if necessary by removing offenders from the community, and that will deter other offenders. On the other hand, Ms White’s mental problems were very real, and led to her offending. In her written submission Ms O’Connor put some emphasis on the fact that all bushfires have the potential to cause harm, that all of these fires were detected quite quickly, and that all were put out without doing much damage. In light of that, she submits, the offending was near the lower end of the range of seriousness. I do not accept this submission. Lighting a series of fires in the places where Ms White lit them, and at the height of the bushfire season, is serious because of the risk of harm created. It is also serious because of the impact on the community of the threat created and the anxiety caused. It was well known at the time that a repeat arsonist was probably at work. This naturally caused great alarm in the relevant parts of the Adelaide Hills. In short, even though none of the fires got out of control, this is a very serious sequence of offences. Ms O’Connor rightly put a lot of weight on Ms White’s background, its effect on her mental health, and the link between that and the offences. Ms O’Connor invokes the principle identified by King CJ in Mason‑Stuart v The Queen (1993) 61 SASR 204 at 205-206, where King CJ said:A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender's offending. The problem is to find a solution which will enable the public to be protected, without imposing a harsh punishment upon a person whose subjective moral responsibility is seriously diminished. She also referred us to the consideration of this principle by Martin J (with whom the other members of the Court agreed) in R v Wiskich [2000] SASC 64; (2000) 207 LSJS 431. In his reasons, Martin J thoroughly reviewed the case law relevant to the sentencing of persons suffering from mental disorders. He said at 457-458:The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender's thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.A reference to the application of these principles to the particular case is instructive. At 459-460 Martin J said:The learned sentencing judge found that the mental illness of the respondent arising from the three independent but interacting mental disorders was such that it "significantly impaired" the respondent's capacity to self-reason and self-control. His Honour was also satisfied, however, that the respondent was capable of understanding the nature and implications of his actions and that his illness reduced, but did not remove, the respondent's capacity to control his conduct. During his oral submissions, counsel for the respondent acknowledged that those findings were open to his Honour and could not be challenged. In my opinion, those conclusions were reasonable conclusions to draw from all the evidence before his Honour.…In my opinion, although the respondent's mental condition was a factor to be taken into account by way of mitigation because it assisted in explaining his actions and, to some extent, it reduced the respondent's moral culpability, this was not a case in which the principle enunciated in Mooney and Mason-Stuart should have been applied to the point of giving little or considerably reduced weight to the element of general deterrence. The mitigating effect of the respondent's mental condition was far outweighed by the gravity of the crime and the importance in the particular circumstances of the element of general deterrence. It follows in my view, that the learned sentencing judge erred in giving full force and effect to the principle enunciated in Mason-Stuart and Mooney.