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18
Court of Criminal Appeal 15 August 2005

R v Jeremy Paul Price

[2005] NSWCCA 285

Assault & violencePublic order & justice offences
PLEA OF GUILTY FINDING OF SPECIAL CIRCUMSTANCES SUBJECTIVE CIRCUMSTANCES PREVIOUS DISCHARGE WITHOUT CONVICTION USE OF TESTIMONIAL EVIDENCE INADEQUATE ATTENTION TO SUBJECTIVE CASE

Citation: R v Jeremy Paul Price [2005] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 15 August 2005
Judge(s): Simpson J, Johnson J, Rothman J

Background

The applicant pleaded guilty in the District Court to aggravated breaking and entering a dwelling and committing a serious indictable offence therein, contrary to s 112(2) of the Crimes Act 1900. The serious indictable offence was assault occasioning actual bodily harm. The aggravating circumstance was that the applicant knew a person was present in the dwelling at the time of entry.

The offence arose from a retaliatory act. The applicant's father had been involved in an altercation at a bowling club the night before. The following morning, acting on what his brother had told him, the applicant forced his way into the victim's home, found him in bed, and struck him repeatedly with a wooden stick. The victim suffered fractures to facial bones, swelling and bruising, and was hospitalised for three days.

Garling DCJ in the District Court sentenced the applicant to two years and eight months imprisonment, comprising a non-parole period of eighteen months and a balance of term of fourteen months, with a finding of special circumstances. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge wrongly treated the applicant's prior s 10(1)(b) discharge (a non-conviction outcome) as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge gave inadequate weight to the applicant's subjective case, including prospects for rehabilitation and the testimonial evidence presented
  • Whether there was a material misdirection as to the means by which the sentence might be served
  • Whether, having identified error, the Court of Criminal Appeal had a proper basis under s 6(3) of the Criminal Appeal Act 1912 to substitute a different sentence

Decision

The Court of Criminal Appeal found that Garling DCJ had fallen into error in treating the applicant's earlier charge, which had resulted in a discharge without conviction under s 10(1)(b), as a prior offence capable of aggravating the current sentence under s 21A(2). A discharge without conviction cannot, without more, be used as an aggravating factor in that manner. This represented a legally operative error in the sentencing process.

The Court also found that the sentencing judge had not given adequate attention to the applicant's subjective case. An impressive body of evidence had been placed before the District Court: the applicant's own testimony, his mother's evidence, a pre-sentence report, two psychological reports, and a substantial volume of testimonial material. The Court considered this material had not been properly weighed in arriving at the sentence.

Those errors, taken together, satisfied the threshold from House v The King (1936) 55 CLR 499 that an appellate court may intervene where a judge acts on a wrong principle, mistakes the facts, or fails to take into account a material consideration. Once error of that kind was established, the Court was empowered under s 6(3) of the Criminal Appeal Act 1912 to assess whether some other sentence was warranted in law and should have been passed.

Exercising that discretion afresh, the Court of Criminal Appeal substituted a shorter sentence with a non-parole period of nine months. Given the commencement date of the original sentence, that non-parole period had already expired by the time of the appeal hearing, and the Court directed the applicant's immediate release on parole.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • In lieu thereof, the applicant sentenced to imprisonment with a non-parole period of nine months, commencing 27 October 2004 and expiring 26 July 2005, with a balance of term of seven months expiring 26 February 2006
  • The applicant to be released on parole forthwith

Key Takeaways

  • A prior charge resolved by a discharge without conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 cannot properly be treated as an aggravating factor under s 21A(2) when sentencing for a subsequent offence.
  • Inadequate engagement with a defendant's subjective case, including testimonial evidence and psychological material going to rehabilitation, constitutes a reviewable sentencing error under the principles in House v The King.
  • Under s 6(3) of the Criminal Appeal Act 1912, once an appellate court identifies qualifying error, the question is simply whether some other sentence is warranted in law; it is not necessary to show the original sentence was manifestly excessive.
  • The Court of Criminal Appeal confirmed that, once error is established and the s 6(3) opinion formed, the appellate court may exercise the sentencing discretion afresh and without constraint, drawing on all material available at the appeal.
  • Rothman J emphasised that flexibility in first-instance sentencing must be balanced against consistency of approach and the statutory regime, citing Johnson v The Queen (2004) 78 ALJR 616.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 105A, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A, ss 5, 6(3), 10(1)(b), 21A, 44(2), 50, 54A(2), 54B
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- House v The King (1936) 55 CLR 499
- Johnson v The Queen (2004) 78 ALJR 616
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- Lowndes v The Queen (1999) 195 CLR 665
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Ryan v The Queen [2001] HCA 21; 206 CLR 267
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Hallacoglu (1992) 29 NSWLR 67
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Berg [2004] NSWCCA 300
- R v G.J. Davies [2004] NSWCCA 319
- R v Wickham [2004] NSWCCA 193
- R v Johnson [2005] NSWCCA 186