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Court of Criminal Appeal 23 October 2000

Regina v Leonard

[2000] NSWCCA 318

Theft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE SENTENCING OF ABORIGINAL OFFENDERS.

Citation: Regina v Leonard [2000] NSWCCA 318
Court: Court of Criminal Appeal, New South Wales
Date: 23 October 2000
Judge(s): Adams J, Bell J

Background

The applicant, an Aboriginal man aged 36 at the time of sentencing, was convicted by a jury in the District Court at Dubbo of robbery under s 94 of the Crimes Act 1900. The offence involved the robbery of an 86-year-old woman in Coonamble in September 1996, in which the applicant struggled with her and took her purse, cash, and groceries.

The sentencing judge imposed a minimum term of three years penal servitude plus an additional term of twelve months. The applicant initially appealed against both conviction and sentence, but abandoned the conviction appeal and proceeded with his application for leave to appeal against the severity of the sentence.

On hearing the application, the Court received additional psychiatric evidence that had not been before the sentencing judge. That evidence, from a forensic psychiatrist, proved significant to the outcome.

  • Whether the sentencing judge gave sufficient weight to the principles applicable to the sentencing of Aboriginal offenders, as set out in R v Fernando (1992) 76 A Crim R 58
  • Whether the original sentence was manifestly excessive by reference to comparable sentences
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 justifying a longer additional (parole) term relative to the minimum term

Decision

The Court did not uphold the challenge based on Fernando. Although trial counsel had not argued before the sentencing judge that specific Fernando principles applied, the applicant's counsel on appeal contended that the judge had erred by failing to engage with those principles in the context of a rural Aboriginal man with limited education, prolonged unemployment, and entrenched alcohol abuse. The Court was not persuaded by this argument, finding that the sentencing judge had in fact taken the applicant's Aboriginality into account as a "strong subjective factor," recognising his background of social and economic disadvantage in central western New South Wales.

On manifest excess, the Court examined Judicial Commission statistics for robbery offences from January 1990 to July 1999. The statistics, when refined to comparable single-count matters, indicated that the total sentence of four years was at the higher end of the range, lending support to the contention that the original sentence was excessive.

The decisive factor in allowing the appeal was the fresh psychiatric evidence. Dr Hugh Jolly's report, received without objection from the Crown, revealed that the applicant had suffered a serious sexual assault by fellow prisoners during an earlier period of custody in 1981 when he was approximately 18 years old. Dr Jolly diagnosed the applicant with chronic post-traumatic stress disorder arising from that assault, with a co-morbid major depression. Dr Jolly also found that these conditions had substantially fuelled the applicant's alcohol consumption and depression over the years.

In light of this evidence, the Court found that special circumstances existed under the relevant sentencing legislation. The applicant's ongoing psychiatric condition required continued treatment, and the Court also accepted that incarceration would weigh more harshly on this particular applicant given his history of serious in-custody trauma.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • In substitution: a term of four years imprisonment from 15 April 1999, with a non-parole period of two years

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge considering Aboriginal offenders is not required to apply Fernando principles only where the offender comes from a remote community; the principles can be relevant to offenders from rural and regional communities affected by entrenched social and economic disadvantage.
  • No error was established in the sentencing judge's treatment of Fernando where the judge had acknowledged Aboriginality and related disadvantage as a meaningful subjective factor, even in the absence of detailed submissions from trial counsel on specific Fernando criteria.
  • Fresh psychiatric evidence received on appeal can ground a finding of special circumstances justifying a redistribution of a sentence toward a longer parole period, particularly where treatment needs are identified.
  • A history of serious assault suffered by an offender during a prior period of incarceration may itself constitute or contribute to special circumstances, on the basis that imprisonment will sit more harshly on that particular person.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances permits departure from the standard proportionality between minimum and additional terms, and psychiatric treatment needs are capable of grounding such a finding.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 94 (robbery)
- Sentencing Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (special circumstances)

Cases
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- R v Bloomfield (1998) 44 NSWLR 734