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Court of Criminal Appeal 5 June 2002

Regina v Evers

[2002] NSWCCA 223

Assault & violenceTheft & propertyFirearms & weapons
SENTENCING

Citation: Regina v Evers [2002] NSWCCA 223
Court: New South Wales Court of Criminal Appeal
Date: 5 June 2002
Judge(s): Adams J; Carruthers AJ

Background

The appellant had pleaded guilty in the Gosford District Court to two counts of assault with intent to rob and robbery, both committed while armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. Both offences occurred on the same afternoon in April 2000. In the first incident, the appellant threatened a supermarket attendant with a knife but fled without obtaining money. In the second, he robbed a liquor store at knifepoint and left by bicycle before being arrested shortly afterwards.

At sentencing in June 2000, Judge Patten imposed concurrent sentences of six years on each count, with a non-parole period of four years and six months. The sentencing judge noted that the appellant was on a disability pension due to dyslexia and had a limited education and no employment history, but no psychological assessment was placed before the court at that time.

The appellant sought leave to appeal on the ground that the sentences were excessive. After sentence, the Legal Aid Commission arranged for a psychological assessment by Associate Professor Susan Hayes, a specialist from the University of Sydney, which was then placed before the Court of Criminal Appeal by consent of both parties.

  • Whether the original sentences were excessive, including whether insufficient discount was applied for the guilty pleas and whether the sentencing judge erred in treating prior offences as an aggravating circumstance.
  • Whether the Court of Criminal Appeal could have regard to a psychological report obtained after sentencing, which could not constitute fresh evidence in the conventional sense.
  • Whether the appellant's intellectual disability constituted "special circumstances" warranting a longer parole period (that is, a shorter non-parole period relative to the total sentence).

Decision

The psychological report by Dr Hayes revealed that the appellant was mildly intellectually disabled and functioned at a lower level than 99 percent of the population. That intellectual disability was compounded by dyslexia. Dr Hayes also recorded a history of physical and sexual abuse in childhood. The Court acknowledged that the report could not technically qualify as fresh evidence under the ordinary principles governing that category of material, but accepted it as cogent information in the exceptional circumstances presented, noting the Crown's fairness in consenting to its consideration.

Carruthers AJ, with Adams J agreeing, held that the Court, armed with this significant additional subjective information that had not been before the sentencing judge, was obliged to intervene and re-sentence the appellant. The court accepted that the appellant's incompetent manner of carrying out the offences was itself likely connected to his intellectual deficit, though that did not alter the seriousness of the conduct.

A discount of 25 percent was applied for the guilty pleas and contrition. Starting from a nominal head sentence of six and a half years, the Court arrived at a head sentence of five years. The appellant's intellectual disability was found to constitute special circumstances, justifying a non-parole period of three years rather than the proportionally longer non-parole period set at first instance.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; sentences imposed by Judge Patten set aside.
  • Appellant sentenced to five years' imprisonment on each count, concurrent, running from 8 April 2000 and expiring 7 April 2005.
  • Non-parole period of three years, running from 8 April 2000 and expiring 7 April 2003.
  • Upon discharge to parole, the appellant to be supervised by the Probation and Parole Service and to participate in vocational training and professional counselling or treatment at that Service's discretion.

Key Takeaways

  • The Court of Criminal Appeal treated the admission of a post-sentence psychological report as an exceptional measure justified by exceptional circumstances, particularly where legal representatives had failed to obtain an assessment before the original sentencing.
  • A mild intellectual disability, even where described as such clinically, can carry significant sentencing weight where the individual functions at a lower level than 99 percent of the population and that condition is further exacerbated by a learning disability.
  • Intellectual disability was accepted in this case as constituting "special circumstances" under the sentencing framework, warranting a non-parole period that represented a greater proportion of the head sentence to allow for supervised reintegration.
  • The Crown's consent to the Court considering material that did not meet the formal fresh evidence threshold was noted as a proper exercise of its duty of fairness.
  • Concurrent sentences were maintained for two offences committed on the same day, reflecting their proximity in time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob/robbery while armed with an offensive weapon; maximum penalty 20 years' imprisonment)

Cases cited: No specific cases were cited in the judgment text provided.