Du Randt v R (2008)

In this matter Greg Walsh appeared for the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against a sentence imposed by Sorby DCJ. She pleaded guilty to a charge that between 28 December 2005 and 31 May 2006 she had dealt in money that was proceeds of crime and was as to the fact that the money was proceeds of crime and at the time of the dealing the value of the money was $100,000 or more. She was sentenced to imprisonment for three years expiring on 28 September 2009.

The applicant knew a number of people who were involved in the importation of amphetamine and the distribution of the proceeds of its sale. In the period between June and December 2005 the applicant had spoken to one Lisa Dunn who knew a number of these persons. On 8 June 2005 a United States Navy vessel arrived at Townsville and a member of the crew retrieved from it a quantity of amphetamine and handed it to another of the syndicate.

On 9 November 2005, one of the drug syndicate arrived on a shipment from overseas and the applicant travelled by car from Sydney to the Gold Coast to collect $100,000 in cash from another member of the syndicate. She drove back to Sydney and delivered the money to a cash dealer. On another occasion she travelled again by car to the Gold Coast and collected a further sum of $100,000 from a member of the syndicate and brought it back to Sydney by car. On a third occasion she transported an amount of $50,000 back to Sydney by plane.

On 24 October 2006 the applicant was arrested. She was initially interviewed by Federal Agents on that day and again on 21 November 2006. She admitted transporting cash on the three occasions. She explained that she did do as she believed that the money she was collecting was for the legal fees for a member of the syndicate. She was chronically depressed and was being treated and prepared to do any task that made her feel worthy. She did not question her friends who had asked her to transport the money.

In the sentencing proceedings, Dr Freed, a treating psychiatrist was called to give evidence. In his opinion the applicant had a significant degree of impairment of her psychiatric functioning and control. Dr Freed was an expert in the diagnosis and treatment of bipolar disorder and practiced at the St Vincent’s clinic. In particular the applicant had suffered a significant subjective history in that she had on a number of occasions been abused s a child and as a teenager. Her symptoms included significant psychotic features including disturbed thoughts of eating human kidneys and other delusional beliefs. The impact of the abuse upon her was also a significant feature of her bipolar disorder and psychotic symptoms.

Sorby DCJ did not accept that the mental condition from which the applicant was suffering had interfered with what she was doing when she carried away the money. In argument, two principle ground were advanced on behalf of the applicant, namely:

  1. The sentence imposed by the learned sentencing judge was too severe having regards to the objective and subjective circumstance of the offence.
  2. By reason of the applicant’s psychiatric/medical condition subsequent to the imposition of a sentence, a miscarriage of justice had occurred (such that a different and lesser sentence should now be imposed upon the applicant.)

Ground one

Barr J observed at [24] that the two substantial arguments were put forward under this ground. The first was that his Honour did not consider whether and how the applicant’s mental condition affected her appreciation of the gravity of the offence, as it was put. Mr Walsh referred the Court to a number of cases which explained the various ways in which the mental illness of an offender may sound and the sentence to be imposed. See Leach v R [2008] NSWCCA 73, Basten JA [10]-[12]; R v Verdins [2007] VSCA 102 at [32] and R v Israil [2002] NSWCCH 255.

His Honour noted at [27] that Mr Walsh drew the Court’s attention to parts of the report of Dr freed which was before the sentencing judge. The first was bipolar disorder mixed with psychotic features. The applicant had manic like symptoms since at least 1999 and significant depressive symptomatology following her sister’s rape and assault in September 2005. She had the complication of mixed intertwining between depressed and manic phases as well as psychotic features, namely auditory hallucinations and paranoid ideation. She thought that flies settled on her because she was garbage. She thought that her family whispered about her. Dr Freed drew attention to the family history of mental illness, including bipolar disorder. Significantly Barr J at [28] noted the post traumatic disorder resulting from sexual molestation on a number of occasions and also the assault and rape of her sister by four men in 2005.

The Court concluded that the evidence shows that the effect on the applicant of the various illnesses from which she suffers will be significant as she serves her sentence and her sentence ought to be mitigated. Barr J with whom Basten JA agreed said the sentence imposed by His Honour is warranted: s6(3)Criminal Appeal Act 1912.

The applicant was granted leave to appeal and the sentence appealed from be quashed and there be substituted a head sentence of imprisonment of two years and six months with a non parole period of one year and six months.