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Court of Criminal Appeal 9 February 2004

R v Henness

[2004] NSWCCA 50

Assault & violence
CRIMINAL LAW SENTENCE APPEAL

Citation: R v Henness [2004] NSWCCA 50
Court: NSW Court of Criminal Appeal
Date: 9 February 2004
Judges: Sully J, James J, Hulme J

Background

The appellant was convicted by a jury in the District Court of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm, contrary to section 33 of the Crimes Act. The offence involved striking the victim across the face with a glass at a Parramatta nightclub in the early hours of 29 April 2001. The victim lost his right eye and sustained permanent facial scarring.

At sentencing, Judge Nield imposed a total term of eight years' imprisonment with a non-parole period of six years, commencing on 14 June 2002, the date of the jury's guilty verdict. The appellant had been arrested on 9 May 2001 but released on bail two days later, meaning he had spent two days in pre-sentence custody that the sentence as structured did not appear to account for.

The appellant sought leave to appeal against the sentence on two grounds: that the sentencing judge had failed to allow for the two days of pre-sentence custody, and that his Honour had erred in declining to find special circumstances warranting a longer parole period than the statutory norm.

  • Whether the sentencing judge erred by failing to allow for the appellant's two days of pre-sentence custody served before being released on bail.
  • Whether the sentencing judge erred in declining to find special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act that would have justified a shorter non-parole period relative to the total sentence.

Decision

On the first ground, the Court of Criminal Appeal found that an allowance should have been made for the two days of pre-sentence custody, regardless of how brief that period was. The correction was straightforward: the commencement date of the sentence was adjusted from 14 June 2002 to 12 June 2002, effectively bringing that two-day period within the sentence.

On the second ground, James J (with whom Sully J and Hulme J agreed) declined to interfere with the sentencing judge's refusal to find special circumstances. The appellant had pointed to several factors, including the absence of prior violence offences, a tentative psychological assessment suggesting possible mental health issues, the fact that this was his first substantial term of imprisonment, and his engagement with a psychologist while in custody. The Court rejected each. The criminal history included weapons offences, not merely minor matters. The psychological assessment was only preliminary, and no evidence was placed before the sentencing judge that required treatment was unavailable within the correctional system. The appellant had also served prior terms of imprisonment, including one of nearly a year.

The Court confirmed that the sentencing judge's reasoning on special circumstances disclosed no error warranting appellate intervention. The eight-year sentence with a six-year non-parole period was otherwise undisturbed.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Nield quashed.
  • Appellant re-sentenced to eight years' imprisonment commencing 12 June 2002 and expiring 11 June 2010, with a non-parole period of six years commencing 12 June 2002 and expiring 11 June 2008.
  • Order confirmed that the appellant be subject to supervision while on parole.

Key Takeaways

  • Even a very short period of pre-sentence custody, here only two days, must be accounted for in the structure of a sentence; the Court of Criminal Appeal corrected the omission by adjusting the commencement date accordingly.
  • A preliminary or tentative psychological report, without further evidence or a final assessment, carries limited weight when a sentencing court is assessing whether special circumstances exist.
  • Where a defendant is already receiving psychological treatment within the correctional system, the absence of evidence that further or different treatment is required but unavailable in custody will weigh against a finding of special circumstances.
  • A criminal history that includes serious weapons offences, even without prior offences of physical violence, remains a relevant aggravating feature and does not support a finding of special circumstances simply because the current offence involved violence of a different kind.
  • Under section 44(2) of the Crimes (Sentencing Procedure) Act, the burden of demonstrating that the standard ratio of non-parole to total sentence should be departed from lies with the party asserting special circumstances; the Court of Criminal Appeal confirmed it was not established on the facts here.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), section 33 (maliciously inflicting grievous bodily harm with intent)
- Crimes (Sentencing Procedure) Act (NSW), section 44(2) (special circumstances and non-parole periods)