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75
Court of Criminal Appeal 26 July 2004

REGINA v CRAMP

[2004] NSWCCA 264

Assault & violence
APPEAL AGAINST SEVERITY OF SENTENCE

Citation: Regina v Cramp [2004] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 26 July 2004
Judge(s): Spigelman CJ, Hidden J, Buddin J

Background

The appellant pleaded guilty in the Penrith District Court to maliciously wounding a man with intent to cause grievous bodily harm, contrary to section 33 of the Crimes Act 1900. The offence carried a maximum penalty of 25 years imprisonment. The attack involved the appellant deliberately pursuing the victim, stabbing him in the back and reinserting the knife, and leaving the scene. The victim suffered grave and permanent injuries, including significant lung damage, ongoing pain, and lasting psychological effects.

Knight DCJ sentenced the appellant to a total term of eight years imprisonment with a non-parole period of five years and seven months. The sentence was backdated to the date the appellant entered custody.

The appellant sought leave to appeal on five grounds, arguing the sentence was manifestly excessive, the special circumstances finding was not properly reflected in the non-parole period, the sentencing procedure was technically defective, and two aggravating matters had been wrongly taken into account.

  • Whether the total sentence of eight years was manifestly excessive given the subjective circumstances of the offender
  • Whether the sentencing judge's finding of special circumstances was adequately reflected in the reduction of the non-parole period below the statutory ratio
  • Whether the sentencing judge failed to comply with section 44 of the Crimes (Sentencing Procedure) Act 1999 by not first fixing the head sentence before setting the non-parole period
  • Whether it was an error to take into account unresolved apprehended violence order applications as an aggravating factor
  • Whether the motivational element used as an aggravating factor under section 21A(2) was already an element of the offence and therefore impermissibly double-counted

Decision

The Court granted leave to appeal and allowed the appeal, resentencing the appellant to a total term of seven years with a non-parole period of five years. Spigelman CJ delivered the principal judgment, with Hidden J and Buddin J agreeing.

On the apprehended violence order applications, the Court found it was an error to rely on unresolved applications as aggravating material. Because no proceedings had been finalised, those applications could not properly inform an adverse finding against the appellant. This error was relevant to the overall sentencing exercise.

The Court also accepted the fifth ground, confirming that an aggravating factor under section 21A(2) cannot be applied if that factor is already an element of the offence for which the offender is being sentenced. To do so constitutes impermissible double-counting.

Regarding special circumstances, the Court accepted that the sentencing judge found special circumstances but did not adequately reflect that finding in the non-parole period. The Court acknowledged that such findings should produce a meaningful adjustment to the statutory ratio, and that in this case a modest extension of the parole period was warranted to allow adequate supervision of the appellant's rehabilitation from drug addiction. The Court ultimately fixed the non-parole period at five years (leaving two years on parole), representing a slight but deliberate departure from the standard three-quarters ratio. The head sentence was reduced to seven years, applying approximately a 12 percent discount to reflect the utilitarian value of the guilty plea.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence of Knight DCJ passed on 3 October 2003 set aside
  • Appellant resentenced to a term of imprisonment of seven years with a non-parole period of five years

Key Takeaways

  • A finding of special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 must be meaningfully reflected in the non-parole period; a nominal or token reduction from the standard ratio is insufficient.
  • Under section 21A(2), an aggravating factor cannot be applied at sentencing if it already constitutes an element of the offence being sentenced. Applying it would amount to double-counting.
  • Unresolved apprehended violence order applications that were not proceeded with cannot properly be used as aggravating material in the sentencing exercise.
  • Where multiple matters could individually support a special circumstances finding, the Court of Criminal Appeal confirmed that those already taken into account in reducing the head sentence should not receive additional weight through further adjustment of the statutory ratio.
  • A guilty plea's utilitarian value and its expression of remorse are distinct components, and each warrants separate consideration when assessing the appropriate sentencing discount.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Sutton [2004] NSWCCA 225
- R v Fidow [2004] NSWCCA 172
- R v Simpson (2001) 53 NSWLR 704
- R v Hansen [2002] NSWCCA 321
- R v Mako [2004] NSWCCA 90
- R v Weininger (2003) 212 CLR 629
- R v Wickham [2004] NSWCCA 193
- R v Piccin No 2 [2002] NSWCCA 323
- R v Thomson (2000) 49 NSWLR 383
- R v Sharma (2002) 54 NSWLR 300