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Court of Criminal Appeal 24 June 2004

Regina v Ensby

[2004] NSWCCA 196

Assault & violenceFirearms & weaponsDomestic & family violence
CRIMINAL PRACTICE & PROCEDURE SENTENCE HEALTH OF OFFENDER SPECIAL CIRCUMSTANCES.

Citation: Regina v Ensby [2004] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 24 June 2004
Judge(s): Bryson JA, James J, Kirby J

Background

The applicant pleaded guilty in the District Court to using an offensive weapon with intent to commit assault, contrary to s 33B(1)(a) of the Crimes Act 1900. The offence carried a maximum penalty of 12 years imprisonment. A second offence of possessing a shortened firearm without authority under the Firearms Act 1996 was taken into account on a Form 1.

The offending arose from a domestic context. The applicant confronted his former partner late at night, threatened her with a baton and a shortened .22 calibre rifle, pursued her along a street, and pressed the weapon to her neck and then her head. A police officer witnessed part of the incident and intervened to remove the firearm. The victim suffered extreme terror throughout the incident, and the applicant was arrested at the scene.

Acting Judge Ducker sentenced the applicant to five years imprisonment with a non-parole period of three years and nine months. A 20 percent discount was applied for the guilty plea. The sentence was backdated to March 2003 to account for 102 days already spent in custody.

  • Whether the five-year sentence was excessive, having regard to comparable cases and the objective seriousness of the offending
  • Whether the sentencing judge gave sufficient weight to the applicant's subjective circumstances, including his age and health
  • Whether the sentencing judge erred by declining to find "special circumstances" that would justify reducing the statutory proportion between the non-parole period and the total sentence

Decision

On the first ground, the Court found the sentence was not excessive. Kirby J compared the sentence to similar cases and concluded it fell within the appropriate range, noting the objective gravity of the offending: the applicant had pressed a firearm against the victim's neck and head in a public street at night, causing her extreme fear.

On the second ground, the Court accepted that the sentencing judge had regard to the applicant's subjective circumstances, including his age, his health conditions, and the hardship that imprisonment would cause him. The Court found no error in how those matters were weighed.

On the third ground, the Court rejected the argument that special circumstances should have been found. The applicant's counsel had pointed to his health and his need for assistance in managing his anger in the context of domestic relationships as factors supporting an extended parole period. The Court confirmed, drawing on R v Fidow [2004] NSWCCA 172 and R v Simpson (2001) 53 NSWLR 704, that the mere presence of material capable of constituting special circumstances does not oblige a sentencing judge to vary the statutory proportion. The question is whether the circumstances are sufficiently special to justify a variation, and the sentencing judge's discretion in declining to vary was open to him.

The Court granted leave to appeal but dismissed the appeal on all three grounds.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the presence of material capable of constituting "special circumstances" does not compel a sentencing judge to vary the statutory non-parole proportion under the Crimes (Sentencing Procedure) Act 1999; the circumstances must be sufficiently special to justify the variation.
  • An applicant challenging a refusal to find special circumstances must demonstrate actual error in the exercise of the sentencing discretion, not merely that the available material could have supported a different outcome.
  • A sentence of five years with a non-parole period of three years and nine months for assault with an offensive weapon (a shortened firearm pressed to the victim's neck and head) was held to fall within the appropriate range, even after a 20 percent guilty plea discount.
  • The sentencing court's consideration of an offender's age, health, and rehabilitative needs does not automatically translate into a finding of special circumstances warranting a reduced non-parole proportion.
  • Comparable sentencing decisions remain relevant to appellate review of whether a sentence is excessive, and the Court assessed this case against the range established in prior authority.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33B(1)(a)
- Firearms Act 1996 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- R v Smith (1987) 27 A Crim R 315
- Phelan v The Queen (1993) 66 A Crim R 446
- R v Fidow [2004] NSWCCA 172
- R v Simpson (2001) 53 NSWLR 704