R v Stonestreet [2020] NSWCCA 212

R v Stonestreet [2020] NSWCCA 212 · Read the judgment on AustLII

Catchwords: Mental illness on sentence – Increased need for community protection in some cases – Crown appeal

The last several years have seen an increase in the focus on reduced ‘moral culpability’ as a result of mental illness as a mitigating factor on sentence. However, in this appeal, the CCA has reminded us that in some cases there is a flip side: sometimes, mental illness will indicate an increased need for community protection. And the CCA has underlined that consideration of community protection in this context is not optional – meaning that practitioners are going to need to give that aspect of the case careful attention.

In 2015 the respondent (this was a Crown appeal against inadequacy) was diagnosed with psychosis [as described in the judgment; psychosis is a symptom rather than a diagnosis, and in this case it appears the diagnosis was of schizophrenia]. In the weeks leading up to the offence in 2017, the respondent had stopped taking his medication. He was paranoid; he rewired his car because he thought it was bugged, and he told a friend on the phone on the night before the offence that he thought people were out to kill him. The friend was worried and called the police. The respondent got back his parents’ home after everybody had gone to bed so his family didn’t realise he had returned. So, at 5am when police arrived to do a welfare check as a result of the friend raising the concern, nobody in the house knew the respondent was there. At the front door the police asked the respondent’s father for a photo of the respondent, and his father went back to his bedroom to get his phone to show them. As his father walked into his bedroom, the respondent stabbed him multiple times in the chest, arms and leg with a large knife. Police ran to help, and the respondent was subdued. After being charged he was eventually committed for trial and, after a fitness hearing in which the accused was found to be fit, the respondent ultimately pleaded guilty. However, he subsequently fired his solicitor and eventually represented himself in the sentencing proceedings. There was a Victim Impact Statement from his father, which said that he did not think the respondent was guilty of the offence and that the healthcare system had let him down.

There was also a psychiatric report on behalf of the respondent. Importantly for present purposes, the sentencing judge found that the offender’s diagnosis of schizophrenia contributed to the commission of the offence in a material way; that little weight should be given to general deterrence because of the mental disorder; and that the respondent’s moral culpability was reduced such that matters of retribution and denunciation should be given little weight. He sentenced the respondent to four years and six months, with a non-parole period of three years and one month. The Crown appealed against the asserted inadequacy of that sentence, on the basis that the sentencing judge had failed to give sufficient weight to the need to protect the community.

The CCA (Davies J, Bell P and N Adams J agreeing) started with a review of the well-known authorities in relation to the overlap of mental abnormality, moral culpability, and sentencing. In particular Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], where in the fifth bullet point of that paragraph the judgment identifies that there may be cases where, because of a person’s mental illness, they present more of a danger to the community and that an increased sentence may be warranted on that account (at [33]-[36] of Stonestreet). The respondent’s psychiatric report had a significant theme of the respondent’s lack of insight into his mental illness (at 37]). Whilst the sentencing judge had mentioned the first four of the five matters mentioned in the above paragraph from De La Rosa [all of which mitigate a sentence], his Honour said nothing about the issue of community protection. Community protection is not an optional consideration, not only because it is a legislative requirement to consider it, but precisely because the person’s mental illness means that they present more of a danger to the community. In those cases, an increased sentence might be imposed, not because the offender has a mental illness, but because an appropriate sentence must be imposed having regard to the fact that the person is a danger to the community. In the same way, a person without a mental illness who is a continuing danger to the community might expect to receive a longer sentence than someone who is not in that category (at [44]).

For those and other reasons, the sentence was found to be manifestly inadequate: it was increased to six years, with a non-parole period of three years and one month. The non-parole period was left untouched by that change, at least in part because by the time the appeal was finalised, the original non-parole period had already expired.