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Court of Criminal Appeal 7 May 2002

Rv Haddad

[2002] NSWCCA 176

Assault & violence
SENTENCING EFFECT OF PROVOCATION SERIOUS OFFENCE

Citation: R v Haddad [2002] NSWCCA 176
Court: Court of Criminal Appeal, New South Wales
Date: 7 May 2002
Judge(s): Kirby J, Smart AJ

Background

The appellant was sentenced in the District Court after pleading guilty to three counts of using a motor vehicle as an offensive weapon to cause grievous bodily harm. The offences arose from an escalating road incident at Five Dock in July 2000, during which the appellant twice drove his vehicle back toward a motorcyclist he had clashed with, ultimately mounting a footpath and striking three bystanders. Two innocent passers-by were knocked to the ground; one suffered serious orthopaedic injuries with long-term consequences.

The sentencing judge in the District Court imposed a head sentence of eight years with a non-parole period of five years on the principal count, with concurrent fixed terms of four years on the remaining counts. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive, contending in particular that the sentencing judge had failed to properly account for provocation as a mitigating factor.

The background to the appellant's emotional state was significant. In the period before the offence, his father had orchestrated a campaign to undermine his marriage, ultimately procuring a divorce that was based on fabricated allegations of infidelity. The appellant was travelling with his father at the time of the incident, and was already in a state of considerable distress. The motorcyclist's verbal abuse, which included profanities referencing the appellant's deceased mother, contributed to a complete loss of self-control.

  • Whether the sentencing judge erred in her treatment of provocation as a mitigating factor in the circumstances of a serious violent offence.
  • Whether the non-parole period of five years was appropriate, having regard to the appellant's subjective circumstances, including his previous good character, youth, and the nature of the provocation.
  • Whether the head sentence of eight years on the principal count should be disturbed.

Decision

The Court of Criminal Appeal found that the sentencing judge had made an error in her approach to provocation. The judge had concluded that provocation was not capable of mitigating criminality in offences as serious as these. The Court of Criminal Appeal rejected that reasoning, finding that provocation can properly be taken into account in mitigation even for grave offences, provided it contributed to the loss of self-control that drove the conduct.

The Court accepted that the appellant was in a heightened emotional state before the incident even began, given the distress caused by his father's conduct. The motorcyclist's aggressive behaviour, including kicking the appellant's car door and directing abuse at him, added to this. While the Crown argued that gaps of approximately one minute between each return to the scene indicated an opportunity to cool down, the Court was not persuaded that the effects of provocation and the loss of self-control had abated in that short time.

Despite the error, the Court declined to reduce the eight-year head sentence. It found that the offences were objectively very serious, involving the use of a vehicle as a weapon against innocent parties, and that the head sentence remained appropriate even when provocation was properly taken into account. The error was, however, found to have affected the non-parole period.

The Court reduced the non-parole period from five years to four years. It reasoned that the appellant was a first offender, still a relatively young man, and had been of genuinely good character prior to the offence. A period of supervision on parole was considered to be in both his interests and those of the community, particularly given the need to ensure his anger did not overwhelm him in future.

Orders Made

  • Leave to appeal granted.
  • Appeals on counts 2 and 3 (relating to Mr Sutton and Mr Lynch) dismissed.
  • Appeal against sentence on count 1 (relating to Ms Pereira) allowed in part: the eight-year head sentence was upheld; the non-parole period of five years was set aside and replaced with a non-parole period of four years, commencing 31 October 2001 and expiring 30 October 2005.

Key Takeaways

  • Provocation can operate as a mitigating factor in sentencing even for serious violent offences. The Court of Criminal Appeal held that the sentencing judge erred by treating the gravity of the offences as a categorical bar to giving provocation any mitigating weight.
  • A sentencing judge must assess whether provocation actually contributed to the offender's loss of self-control, and if so, that fact is capable of reducing the appropriate penalty, particularly in relation to the non-parole period.
  • Strong subjective features, including genuine contrition, previous good character, a plea of guilty at the first opportunity, and significant personal hardship, are relevant to the non-parole period even where the objective seriousness of the offence places the head sentence near the top of the available range.
  • In dismissing the challenge to the head sentence, the Court confirmed that objective seriousness, general deterrence, and retribution can sustain a substantial custodial term even where mitigating factors exist and have been properly acknowledged.
  • The brief intervals between the appellant's successive returns to the scene were not treated as conclusive evidence that provocation had dissipated; the Court found it improbable that self-control would have been restored within a period of approximately one minute.

Legislation and Cases Referenced

Legislation:
- None cited.

Cases:
- R v Henderson (unreported, NSWCCA, 5 November 1997)