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Court of Criminal Appeal 15 September 1999

Regina v Hourn

[1999] NSWCCA 286

Assault & violence
APPEAL AGAINST SENTENCE NO NOVEL QUESTION OF PRINCIPLE

Citation: Regina v Hourn [1999] NSWCCA 286
Court: Court of Criminal Appeal, New South Wales
Date: 15 September 1999
Judge(s): Sully J, Simpson J

Background

The appellant had a prior conviction for maliciously wounding the same victim in 1994, for which he received four years penal servitude with an 18-month minimum term. He was released to parole in July 1995. In December 1996, while on parole, he returned to the victim's home carrying an axe, pursued the victim down a corridor, and struck him multiple times, causing skull fractures and other serious injuries.

The appellant was arrested on 4 December 1996, refused bail, and remained in pre-sentence custody until he was sentenced on 5 May 1998. He pleaded guilty to maliciously inflicting grievous bodily harm under section 35 of the Crimes Act 1900. The District Court imposed five years penal servitude with a minimum term of four years, but did not back-date the sentence to the date of arrest.

The appellant sought leave to appeal against sentence in the Court of Criminal Appeal, arguing the sentencing judge erred by failing to back-date the sentence to 4 December 1996. Evidence before the sentencing judge included expert reports diagnosing the appellant with paranoid schizophrenia and chronic delusional beliefs, though his condition had improved on anti-psychotic medication.

  • Whether the sentencing judge erred by refusing to back-date the sentence to 4 December 1996, the date of the appellant's arrest and the commencement of his pre-sentence custody.
  • Whether the apportionment of the five-year sentence between the minimum term and the additional term adequately reflected the appellant's rehabilitative needs and the need to protect the public.

Decision

The Court of Criminal Appeal found the sentencing judge erred in refusing to back-date the sentence. The appellant's pre-sentence custody from 4 December 1996 was attributable solely to the subject offence, as he was refused bail in connection with that offence. Although the appellant was on parole at the time of the offence and was technically liable to parole revocation, his parole was never revoked and simply expired by the passage of time. In those circumstances, the Court found no justification for the refusal to back-date, noting that the original sentencing remarks disclosed no specific reasoning for that refusal.

On the question of apportionment, the Court acknowledged the seriousness of the offence on its objective facts and the challenges presented by the appellant's mental health. Applying sentencing principles drawn from the case of R v Letteri, the Court found that general deterrence carried little weight given the appellant's psychiatric condition, but that personal deterrence, protection of the victim, protection of the public, and the need for post-release supervision were all highly significant considerations.

The Court concluded that an additional term of only one year (as imposed by the District Court) was inadequate to the circumstances. A longer additional term of two years was required to ensure adequate post-release supervision, to support the appellant's prospects of recovery through continued medication, and to minimise the risk of further harm to the victim and the community. An aggregate sentence of five years, back-dated, was not considered manifestly excessive.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • The sentence imposed on 5 May 1998 quashed.
  • In lieu, a sentence of penal servitude for five years imposed, comprising a minimum term of three years commencing 4 December 1996 and expiring 3 December 1999, and an additional term of two years commencing 4 December 1999 and expiring 3 December 2001.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where pre-sentence custody is attributable entirely to the offence being sentenced, a sentencing court must have clear reasons for declining to back-date the sentence to the date of arrest.
  • A failure to revoke parole following a fresh offence does not, of itself, justify treating pre-sentence custody as serving some other purpose; the unexpired parole period simply running to its natural expiry was not a basis for denying back-dating in this case.
  • Where an offender's psychiatric condition significantly diminishes the relevance of general deterrence, the sentencing balance shifts toward personal deterrence, victim protection, community protection, and structured post-release supervision.
  • The length of the additional term (the period of supervised parole following minimum term) should reflect the genuine supervisory needs of the offender and the risk posed to identifiable victims and the public, not merely administrative convenience.
  • In dismissing the original apportionment of only one year's additional term, the Court of Criminal Appeal restructured the sentence to provide a two-year additional term, better calibrated to support rehabilitation and ongoing medication compliance upon release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35 (maliciously inflicting grievous bodily harm)

Cases:
- R v Martin John Letteri (principles on the relationship between general deterrence and mental illness in sentencing)