Lazarus v R

(2023) 380 FLR 228; [2023] NSWCCA 214

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Commonwealth offences
4. › Child sex offences
5. › Child abuse material
6. › General deterrence
7. › Whether sentencing judge erred by failing to determine weight to be given to general deterrence having regard to offender's mental health condition
8. › Crimes Act 1914 (Cth), s 16A(2)
9. › Criminal Code (Cth), ss 474.19(1), 474.22(1), 474.22A(1), 474.26(1), 474.27A(1)
1. Criminal Law
2. › Sentencing
3. › Commonwealth offences
4. › Instinctive synthesis
5. › Whether appellate principles concerning weight of general deterrence for particular offence categories are consistent with instinctive synthesis and s 16A(2)
6. › Crimes Act 1914 (Cth), s 16A(2)
1. Criminal Law
2. › Sentencing
3. › Mental health of offender
4. › Effect on general deterrence
5. › Whether offender's mental health condition rendered offender inappropriate vehicle for general deterrence
6. › Whether absence of formal psychiatric diagnosis limited reduction in weight of general deterrence
1. Criminal Law
2. › Appeal
3. › Appeal against sentence
4. › Resentencing by appellate court
5. › Whether lesser sentence warranted
6. › Adoption of sentencing judge's findings of fact

Quick Take

Where a forensic psychologist's opinion does not contain a formal diagnosis of a recognised psychiatric condition causally linked to the offending, the De La Rosa principle concerning the amelioration of general deterrence on account of mental illness will have limited application. Appellate courts may develop general principles concerning the weight to be given to sentencing factors for particular offence categories (such as the paramountcy of general deterrence in child pornography cases) without offending the instinctive synthesis approach in Markarian or s 16A(2) of the Crimes Act 1914 (Cth).