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Court of Criminal Appeal 19 March 2001

R v Kavanagh

[2001] NSWCCA 78

Assault & violenceFirearms & weaponsDomestic & family violence

Citation: R v Kavanagh [2001] NSWCCA 78
Court: NSW Court of Criminal Appeal
Date: 19 March 2001
Judge(s): Studdert J; Barr J

Background

The applicant pleaded guilty in the District Court to two offences: attempting to discharge a loaded firearm at his wife with intent to cause grievous bodily harm (under s 33 of the Crimes Act), and possessing a firearm without authorisation (under s 7 of the Firearms Act). The offences occurred on 5 February 1998, shortly after the applicant had returned from London in what appeared to be a final attempt at reconciliation. He had acquired the firearm shortly after returning to Australia.

The incident occurred in a car near a day care centre where the couple's child was being kept. The applicant produced the weapon and said he could not live without his wife. She grabbed the barrel of the gun, and in the struggle bullets fell out. She escaped into the day care centre and the applicant was taken into custody.

District Court Judge Nield DCJ sentenced the applicant to eight years imprisonment (minimum five years) for the more serious offence and a concurrent fixed term of two years for the firearms offence. The applicant sought leave to appeal against sentence, arguing it was too harsh.

  • Whether the sentencing judge gave insufficient weight to the applicant's diagnosed bipolar disorder and its subsequent improvement
  • Whether insufficient weight was given to the absence of physical injury to the complainant
  • Whether insufficient weight was given to the plea of guilty
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentence imposed.

On the psychiatric condition, the Court held that the sentencing judge had expressly and repeatedly acknowledged the applicant's bipolar disorder. However, because the offence was both premeditated and planned, the applicant was fully aware of what he was doing at the time. The existence of a mental disorder does not eliminate the relevance of deterrence, and must be weighed against other factors, including the degree of planning involved.

On the absence of injury to the complainant, the Court noted that no injury resulted not from any change of heart by the applicant, but from the complainant's own defensive actions. The applicant had not abandoned his intent. That distinction substantially reduced the weight this factor could carry in mitigation.

On the plea of guilty, the sentencing judge had acknowledged it and applied a utilitarian discount, even without expressing it in precise percentage terms (which was consistent with the practice before R v Thompson (2000) was decided). The finding of no contrition and no insight into the gravity of the conduct was also relevant to this ground. Taking all factors together, and noting that the sentence was towards the upper end of the range but not outside it given the significant premeditation, the Court found the sentence was not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A diagnosed mental disorder is a relevant mitigating factor at sentencing, but it does not displace the consideration of general deterrence, particularly where the offence was carefully premeditated and planned.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of physical injury carries reduced mitigating weight when harm was averted solely by the victim's own defensive actions, not by any change of intent on the offender's part.
  • Where a sentencing judge acknowledged a guilty plea and applied a utilitarian discount without quantifying it, no error arose, especially in proceedings conducted before R v Thompson (2000) 49 NSWLR 383 formalised the approach to guilty plea discounts.
  • Sentencing statistics indicating a sentence was towards the upper end of the range do not, without more, establish that a sentence is manifestly excessive.
  • Findings of no contrition and no insight into the seriousness of the offending are relevant considerations that can diminish the mitigating effect otherwise available from a plea of guilty.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 33 (attempting to discharge a loaded firearm with intent to cause grievous bodily harm; maximum penalty 25 years imprisonment)
- Firearms Act (NSW), s 7 (possessing a firearm without authorisation; maximum penalty 10 years imprisonment)

Cases
- R v Thompson (2000) 49 NSWLR 383
- R v Vulic [2000] NSWCCA 295
- R v Channells (unreported, NSWCCA, 30 September 1997)