Criminal law: October 2022

Wornes v R [2022] NSWCCA 184

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

The Court of Criminal Appeal (‘CCA’) has held 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 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.