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Court of Criminal Appeal 25 February 2000

R v Allbon

[2000] NSWCCA 41

Assault & violence
CRIMINAL LAW AND PROCEDURE SENTENCE EXTENSIVE PRIOR RECORD MUCH PREVIOUS LENIENCY AMBIGUITY CONCERNING CONCURRENCY

Citation: Allbon v R [2000] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 25 February 2000
Judge(s): Grove J, Smart AJ

Background

The appellant was a 23-year-old man born with cerebral palsy, assessed by professionals as intellectually and physically disabled, and said in some respects to function at the level of a seven-year-old. He had an extensive prior record of approximately 90 court appearances, and had received considerable leniency over the years as a result of his disabilities.

He faced two indictments. On the first, he pleaded guilty to malicious wounding with intent to inflict grievous bodily harm. The offence involved entering a victim's home, taking a knife from a drawer, and stabbing the victim, who was himself severely disabled and sight-impaired, approximately 15 times. The appellant was on Supreme Court bail at the time for the second matter, which involved breaking into a pie shop, stealing $180, and setting fire to paper bags inside, causing damage to stock and equipment.

In the District Court, Rummery DCJ imposed a total sentence of eight years penal servitude (minimum and additional terms of four years each) on the first indictment, with a separate fixed term on the second. The judge stated both sentences were to be served concurrently, but set different commencement dates, creating an ambiguity in the orders. The appellant sought leave to appeal on the ground of manifest excess.

  • Whether the sentencing judge gave excessive weight to general deterrence given the appellant's intellectual and physical disabilities
  • Whether the eight-year total sentence was manifestly excessive in the circumstances
  • Whether the orders for concurrent service were ambiguous and required correction due to the different commencement dates assigned to each sentence

Decision

On the question of general deterrence, Grove J acknowledged the established principle that persons with intellectual disabilities may not be suitable vehicles for general deterrence. However, the Court confirmed that this principle does not amount to a rule that such offenders can never serve that purpose at all. Rummery DCJ had been alert to the need for specificity on the point, and the Court of Criminal Appeal found no error in his approach.

On manifest excess, the Court rejected the submission that the eight-year sentence was disproportionate. Grove J noted the severity of the attack on a defenceless, unsuspecting, and entirely unprovoking victim. The Court held the sentence was warranted, and observed that, absent the appellant's disability, a considerably longer sentence would have been appropriate.

The Court did, however, identify a problem with the structure of the orders. The first indictment sentence was ordered to commence on 2 September 1998, while the second was ordered to commence on 2 February 1998. The judge's statement that both sentences were to run concurrently was therefore inconsistent with the different start dates. The Court could not determine which date was in error, and resolved the ambiguity by adjusting the commencement date of both sentences to 2 February 1998, giving proper effect to the concurrent service direction.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed in part
  • The orders on the first indictment were quashed and replaced with a minimum term of four years commencing 2 February 1998 and expiring 1 February 2002, followed by an additional term of four years commencing 2 February 2002
  • All other sentences and orders made by Rummery DCJ were to stand

Key Takeaways

  • The Court of Criminal Appeal confirmed that, while intellectual or physical disability may reduce an offender's suitability as a vehicle for general deterrence, it does not categorically exclude that consideration from sentencing.
  • An extensive prior record of leniency does not, of itself, preclude a substantial custodial sentence where the offence is sufficiently serious.
  • Where concurrent sentence orders contain inconsistent commencement dates that cannot be reconciled by reference to the judgment, a Court of Criminal Appeal may adjust the orders to resolve the ambiguity, acting on the principle of ex debito justitiae (a right owed by the court in the interests of justice).
  • No error in the exercise of sentencing discretion was established merely because the offender was intellectually and physically disabled, provided the sentencing judge engaged specifically with the relevance of those disabilities.
  • The eight-year sentence, reduced from what would otherwise have been warranted, reflected the sentencing court's balancing of the gravity of a violent attack against a defenceless victim with the mitigating circumstance of the offender's significant disabilities.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 556A (dealing with dismissal of charges)

Cases:
- No cases were cited by name in the judgment text provided.