Solicitor fails to submit client’s history of mental illness to sentencing judge in NSW … Instead relies on character reference from Hillsong “youth leader” … Schizophrenia … Miscarriage of justice … Tasmanian offender with borderline personality disorder … Trial judge rapped for failing to suspend part of the sentence … Brief sentencing comments in court … Different and longer written version … Michael Baker reports
In December 2019 after pleading guilty to two offences of robbery in company, then 20-year-old Luke Momoa (a pseudonym) was sentenced to four years and six months in prison with a non-parole period of two years and three months.
On appeal, the court found his solicitor was aware of his history of mental illness and had in her possession a discharge letter from an early intervention program diagnosing him with “first episode psychosis”.
However, the solicitor (carefully unnamed in the judgment) failed to present evidence supporting a diagnosis, instead relying on a character reference from his “Youth Leader” at Hillsong Church and a sentencing assessment report.
A psychiatric assessment subsequently presented to the court revealed that Momoa had developed serious symptoms of schizophrenia including, among other things, “hearing voices” that would command him to “hurt people”.
Further, he had previously been assessed and treated at Liverpool Hospital’s emergency department for psychosis, was being treated with a number of medications with which his compliance was “suboptimal” and had history of substance abuse starting from the age of 13.
A forensic psychiatrist concluded that at the time of the offences that Momoa’s “schizophrenic illness was unstable”. At the time of committing the crime, Momoa’s judgment was “compromised by his schizophrenic illness”, reducing his moral culpability.
All of this, it seems, would have been relevant to the appropriateness of specific and general deterrence in his sentencing by Judge Andrew Colefax – if only his solicitor had obtained and presented the relevant evidence.
Momoa’s new legal team argued that his previous solicitor failed to obtain a report from police as to the “significant assistance” he had provided to authorities – grounds which were the subject of a confidential annexure to the judgment.
That a miscarriage of justice had occurred was common ground and Momoa’s sentence was quashed. On resentencing his term of imprisonment was reduced to an aggregate term of three years and eight months with a non-parole period of one year and 10 months – meaning he could be released on parole immediately.
The court took the opportunity to deliver a word of advice to legal representatives who find themselves on the pointy end of a grounds of appeal based on their competence.
Momoa’s solicitor had sought to rely on client legal privilege as excusing her from providing an affidavit responding to the allegations of incompetence made in the grounds of appeal.
Justice Lucy McCallum was at pains to point out that client legal privilege had had been waived, and that the purpose of the affidavit was not to haul the solicitor over the coals but “to consider whether a miscarriage of justice resulted”.
Meanwhile, in the Apple Isle the Court of Criminal Appeal has held that the failure of a judge to provide “some relief” in the sentencing of a woman diagnosed by a forensic psychologist with borderline personality disorder was “unreasonable and plainly unjust”.
38-year-old Trisha Gordon was sentenced to two years imprisonment after pleading guilty to one count of wounding and two summary counts of common assault arising out of an episode in which she cut her mother’s neck with a kitchen knife.
At trial, the court heard that Gordon had been subjected to years of sexual abuse at the hands of her father from the ages of eight to 12, and had a tumultuous relationship with her mother who she accused of not doing enough to protect her from her father’s abuse.
She also had lengthy criminal history having served her first sentence for aggravated burglary, aggravated armed robbery and manslaughter in 1999, when she was 15.
In a forensic psychologist’s report tendered at her sentencing hearing, Justice Greg Geason was told of Gordon’s history of depression, symptoms of post-traumatic stress disorder, a 2016 suicide attempt and a lengthy period of alcohol and illicit substance abuse.
On the day the offences were committed, Gordon had reportedly consumed a significant amount of alcohol.
The report was sufficient to establish mental impairment contributing to the offending. It was also suggested in the report that Gordon’s experience of prison so far was not immediately compromising her mental health, but that she needed drug and alcohol rehabilitation which the judge heard was “notoriously difficult to be accessed within the prison system and can only be generally offered on return to the community”.
The sentencing judge appears to have taken this to mean that prison was indeed the ideal environment for this offender.
However, it was not the sentencing judge’s misapprehension about the virtues of the prison environment for those with substance abuse issues that was consequential to appeal judge Disco Dave Porter.
It was the failure, in light of Gordon’s rehabilitation needs, to provide relief from the full force of the two-year jail sentence, in the form of suspending part of that sentence, that made it manifestly excessive.
Though also not material to the court’s final judgment, the “unusual course” taken by the sentencing judge of making only brief comments on sentencing in the courtroom, and then later publishing detailed written comments “which differed substantially from his oral comments”, appears to have raised judicial eyebrows.