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Court of Criminal Appeal 30 August 2001

R v Piccin (No 2)

[2001] NSWCCA 323

Assault & violence
OFFENCE NOT TRIVIAL.

Citation: Piccin (No 2) v R [2001] NSWCCA 323
Court: New South Wales Court of Criminal Appeal
Date: 30 August 2001
Judge(s): Giles JA, James J, Hulme J

Background

The appellant was tried in the District Court before Judge Luland and a jury on multiple charges arising from events in 1999. The jury convicted her of maliciously wounding a young man with a knife and stalking him with intent to cause fear of personal injury. The offences arose from the breakdown of a lengthy relationship between the appellant, then aged around forty, and the victim, who had been approximately seventeen years old when the relationship began.

At sentencing, Judge Luland declined to impose a custodial sentence. He convicted the appellant on both counts and deferred passing sentence on condition that she enter into a recognisance to be of good behaviour for two years. The appellant had no prior criminal history, had suffered significant personal and financial hardship, and was undertaking a nursing course at the time.

The Court of Criminal Appeal, on 9 February 2001, dismissed her appeal against conviction for malicious wounding but quashed her conviction for stalking. Following that decision, the appellant made a further application, arguing that the court should exercise the power under section 10 of the Crimes (Sentencing Procedure) Act to dismiss the malicious wounding charge without recording a conviction.

  • Whether the Court of Criminal Appeal retained jurisdiction to entertain the further application, given it had already dismissed the conviction appeal on 9 February 2001.
  • Whether the quashing of the stalking conviction vitiated Judge Luland's implied decision not to exercise the section 10 discretion, which had been made in the context of sentencing for two offences.
  • Whether section 10 of the Crimes (Sentencing Procedure) Act is limited in its application to trivial offences only, or whether it extends to more serious offending.
  • Whether the Court should exercise the section 10 discretion in the appellant's favour and dismiss the malicious wounding charge without recording a conviction.

Decision

The Court held it retained jurisdiction to deal with the application because the 9 February 2001 order had not yet been perfected. Under the principle confirmed in R v Postiglione, an unperfected order does not extinguish the Court's jurisdiction. Any extension of time required was granted.

The Court accepted the appellant's argument that Judge Luland was not bound to convict following the jury's verdict, and that the power under section 10 was available to him. The Court also agreed that the quashing of the stalking conviction meant the sentencing judge's implied decision not to apply section 10 had been made on a flawed basis, since he was then sentencing for two offences. The Court therefore proceeded to consider the section 10 question afresh in its appellate sentencing capacity.

On the scope of section 10, the Court rejected a narrow reading that would confine the provision to trivial offences. Hulme J reasoned that section 10 was a "plain English" rewriting of the former section 556A of the Crimes Act and that reading it as limited to trivial matters would impermissibly emasculate an important provision designed to mitigate "the rigidity of inexorable law." The court found no clear legislative intent to restrict the provision in that way.

Nonetheless, the Court declined to exercise the discretion. While the appellant's personal history, the unusual circumstances of the relationship breakdown, and the impact of a conviction on her nursing career were factors in her favour, the court found that the seriousness of a deliberate knife attack, combined with the absence of immediate remorse and the appellant's false accounts given to police and at trial, weighed decisively against dismissal. The court also noted that the public interest in nursing regulators being aware of a relevant conviction was a relevant countervailing consideration.

Orders Made

  • Application for leave to appeal against conviction and sentence dismissed.

Key Takeaways

  • Section 10 of the Crimes (Sentencing Procedure) Act is not confined to trivial offences. The Court of Criminal Appeal confirmed it is a restatement of the former section 556A and retains a broader remedial purpose, designed to allow courts to avoid the inflexibility of mandatory conviction in appropriate cases.
  • Where an appellate court quashes one of multiple convictions that formed the basis of a sentencing exercise, the sentencing court's implied decision not to apply section 10 may be treated as vitiated, reopening the discretion for fresh consideration.
  • An unperfected order of the Court of Criminal Appeal does not bar further applications. Jurisdiction to entertain the matter remains until the order is perfected.
  • In declining to dismiss the malicious wounding charge, the Court weighed a deliberate, premeditated knife attack, dishonest accounts given to police and a jury, and the public interest in professional registration bodies having access to relevant conviction information against the appellant's sympathetic personal circumstances and the career consequences of a criminal record.
  • The adverse professional impact of a conviction is a matter "proper to consider" under section 10(3)(d), but that consideration operates alongside, not in override of, factors relating to the seriousness of the offending and character.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), section 10
- Crimes Act 1900 (NSW), former section 556A

Cases:
- Grierson v The Queen (1938) 60 CLR 431
- R v Postiglione (1997) 98 A Crim R 134
- R v Reinisch (1978) 1 NSWLR 483