Citation: Regina v McCaffrey; Regina v Rowsell [1999] NSWCCA 363
Court: NSW Court of Criminal Appeal
Date: 23 November 1999
Judges: Stein JA, Hulme J (dissenting), Greg James J
Background
The two applicants picked up a 17-year-old hitchhiker and took him to a house, where they suggested he could live there and sell drugs on their behalf. During that evening, all three consumed alcohol, cannabis and LSD. When the victim later said he wanted to go home, the applicants feared he would report the drug supply to police and became aggressive.
What followed was a prolonged series of assaults and humiliations, including the victim being tied up, blindfolded, and placed in the boot of a vehicle. The applicants drove to a secluded location, where one of them stabbed the victim in the back of the neck with a knife before kicking or pushing him down an embankment. The applicants believed they had killed him and left the scene. The victim survived.
Both applicants pleaded guilty in the District Court to wounding with intent to murder under s 27 of the Crimes Act 1900. Howie DCJ sentenced each to 15 years penal servitude, comprising a minimum term of 9 years and an additional term of 6 years. Both applicants sought leave to appeal against their sentences.
Legal Issues
- Whether the sentencing judge's starting point was too high, producing a sentence that was manifestly excessive
- Whether the sentencing judge gave sufficient weight to the mitigating circumstances in which the intent to murder was formed (including the influence of alcohol, cannabis and LSD)
- Whether a disparity of sentence in favour of one applicant over the other was warranted, given any differences in their respective roles and subjective features
- Whether the sentencing judge erred by failing adequately to consider one applicant's intoxication, particularly by LSD, as a mitigating factor
Decision
The Court of Criminal Appeal (Stein JA, Greg James J agreeing, Hulme J dissenting) allowed both appeals, finding that the sentencing judge's starting point was too high in each case and that the resulting sentences were excessive.
On the question of manifest excess for McCaffrey, the majority found that when aggravating features were properly weighed against the relevant sentencing statistics and the facts as found by the sentencing judge, the starting point led to an excessive outcome. The majority accepted, however, that the sentencing judge had not failed to give appropriate weight to mitigating factors and was entitled to place the offending in the upper range of seriousness for this type of offence.
On the disparity argument, the majority upheld the sentencing judge's conclusion that the co-offenders' subjective features were sufficiently similar to justify equal sentences. No basis for imposing a lesser sentence on one applicant compared to the other was established.
On Rowsell's separate ground concerning intoxication, the majority found no error in the sentencing judge's treatment of the intoxication issue. Nonetheless, the same error in the starting point that affected McCaffrey's sentence equally affected Rowsell's. Both sentences were reduced to 13 years total penal servitude, comprising a minimum term of 7 years and an additional term of 6 years. Hulme J dissented, taking the view that, when the full criminality toward the victim across the evening was properly considered, the original sentences were not excessive and the appeals should be dismissed.
Orders Made
The orders below reflect those in the provided text, noting that the extracted orders section contains only Hulme J's dissenting proposed orders. The majority orders (set out earlier in the judgment) are reproduced here for completeness:
Majority orders (Stein JA, Greg James J):
- Leave to appeal granted and appeal upheld for McCaffrey: sentence of 15 years quashed and replaced with a total sentence of 13 years penal servitude, comprising a minimum term of 7 years from 17 February 1998 (expiring 16 February 2005) and an additional term of 6 years from 17 February 2005
- Leave to appeal granted and appeal upheld for Rowsell: sentence of 15 years quashed and replaced with a total sentence of 13 years penal servitude on identical terms
Hulme J (dissenting) proposed orders:
- Grant leave to appeal against sentence, with leave not extending to any contention that the sentencing judge improperly took into account the applicants' criminal conduct toward the victim beyond the offence of wounding with intent to murder
- Dismiss both appeals
Key Takeaways
- A sentencing judge's starting point can render an ultimate sentence manifestly excessive even where the judge has not separately misidentified or misweighted individual mitigating or aggravating factors. The majority found this to be the case despite accepting that the offending fell within the upper range of seriousness.
- Where co-offenders share substantially similar subjective features, equal sentences do not constitute a sentencing error based on disparity, even if their precise physical roles in the offence differed.
- Intoxication by drugs and alcohol at the time an intent to kill is formed is a relevant sentencing consideration, but its weight is not unlimited. The majority found no error in the sentencing judge's treatment of LSD intoxication as a mitigating feature, even while reducing the sentence on other grounds.
- In the dissent, Hulme J reasoned that where all parties agreed at the sentencing hearing that the totality of an offender's criminality toward a victim would be dealt with under a single charge, the sentencing judge was entitled to take the broader criminal conduct into account when assessing sentence. This reasoning formed the basis of his dissenting view that the original sentences were justified.
- Sentencing statistics relevant to the particular offence remain a useful reference point when evaluating whether a starting point is appropriately calibrated to the facts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 27 (wounding with intent to murder)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 21
Cases:
- R v Visconti (1982) 2 NSWLR 104
- R v Bloomfield (1998) 44 NSWLR 734
- R v Lane (1990) 48 A Crim R 161
- R v De Simone (1991) 147 CLR 383
- AB v R [1999] HCA 46