Wornes v R [2022] NSWCCA 184

Wornes v R [2022] NSWCCA 184 · Read the judgment on AustLII

Catchwords: Sentencing – mental health conditions – personality disorders – factors in mitigation

The Court of Criminal Appeal (‘CCA’) has held that there is no rule of law that personality disorders cannot be used to mitigate an offender’s sentence. Each case turns on its facts, but at least where the personality disorder leads to distorted views of personal relationships or impairs emotional responses, it is open to a sentencing judge to reduce the sentence on that basis.

Following a series of incidents of domestic violence perpetrated by the applicant on her partner, she attended his home in breach of an ADVO. Confronted about not being allowed to be there, the applicant produced a knife. She stabbed the victim in the neck and made attempts to stab him further before he managed to disarm her. The applicant then left the area and the victim called police whilst sitting on his front steps, but the applicant returned, approached the victim unexpectedly from behind, and started stabbing him again; amongst other injuries, this time he was stabbed in the chest and stomach. When police eventually apprehended the applicant, she made suicidal remarks and had cut her own neck. The applicant pleaded guilty to an offence of wounding with intent to do grievous bodily harm, along with some associated charges. She was sentenced to 8 years, with a non-parole period of 5 years.

The evidence on sentence established that the applicant suffered (amongst other things) a personality disorder with ‘schizotypal and borderline traits’. The sentencing judge considered that a personality disorder does not fall within the principles enunciated in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 (‘De La Rosa’).

De La Rosa stands most prominently for the proposition that mental health conditions may reduce an offender’s culpability, may render them an inappropriate vehicle for general deterrence, may mean that imprisonment would weigh more heavily on them, and may reduce or eliminate the significance of specific deterrence – but it may also be that because of a person’s mental illness they present as more of a danger to the community.

In this case, the sentencing judge’s conclusion that the principles were not engaged rested, amongst other things, on considerations of pragmatism and personal responsibility: his Honour considered that there must be a base level of human functioning for which individuals are to be held responsible. The sentencing judge also held, in the event that conclusion was wrong, that this applicant’s particular personality disorder provided no justification for a reduction in her moral culpability. The applicant appealed on grounds including that the judge had erred in concluding that her personality fell outside the scope of the principles set out in De La Rosa.

The CCA (Hamill J, Ierace J agreeing; Simpson AJA also agreeing, with brief but important additional reasons) allowed the appeal. The sentencing judge erred by declining to take the applicant’s personality disorder into account. By reference to Victorian authority, the Court here concluded that any categorical exclusion of personality disorders could not be sustained. That conclusion also entailed a rejection of the proposition that personality disorders are not illnesses which impact upon the capacity of the sufferer to perceive the world and respond to it (at [29]-[30]). The sentencing judge’s alternative approach of concluding that the particular personality disorder suffered by the applicant did not reduce her moral culpability was also rejected, because the unchallenged psychiatric evidence explained that the applicant’s disorder and personality style led to distorted views of relationships and impaired her emotional responses. In the circumstances of this case, the evidence was relevant to a proper assessment of the applicant’s moral culpability, and as part of the complex question of how much weight should be afforded to general and personal deterrence (at [31]-[32]).

To the extent that the sentencing judge had placed significant reliance on the decision of Simpson JA (as her Honour then was) in De Angelis v R [2015] NSWCCA 197, the plurality held that that case was very different, and did not purport to lay down any rule of law of general application (at [27]). To the extent that there was any doubt about this proposition, Simpson AJA (as her Honour was by the time of this appeal) confirmed in her brief additional reasons that her reasons in that case were not intended to be, and should not be taken to as, standing for a general proposition of law that personality disorders cannot fall within De La Rosa. Each case depends on the application of the law to its own facts (at [1]).

For those and other reasons, the sentencing judge having erred, the appeal was allowed and the applicant was resentenced to 6 years with a non-parole period of 4 years.

This decision does to some extent resolve how personality disorders are to be considered in the sentencing exercise, which was an issue which has been looming for a while. Psychiatric reports regularly raise diagnoses of personality disorders, but until now those opinions have occupied an uncertain place in the sentencing exercise. That said, practitioners will need to be cautious: Like psychiatric illnesses, some personality disorders are liable to make an offender more likely to reoffend in the future, and could therefore aggravate the sentence (sometimes referred to as the last limb of De La Rosa). Moreover, personality disorders are not amenable to a quick or straightforward therapy – there is no pill to fix a person’s narcissistic personality disorder, or borderline personality disorder, or whatever they may have. It follows that practitioners should be careful to ensure that the impact, proposed treatment, and prognosis of any diagnosed personality disorder is set out with clarity in any psychiatric report since otherwise practitioners will find it difficult to bring their case within the De La Rosa principles.