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Court of Criminal Appeal 8 September 2005

Regina v Reid

[2005] NSWCCA 309

Also reported as (2005) 155 A Crim R 428
Assault & violenceDomestic & family violence

Citation: Regina v Reid [2005] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 8 September 2005
Judge(s): Sully J, Hidden J, Hall J

Background

The appellant pleaded guilty in the Local Court to maliciously wounding a person with intent to cause grievous bodily harm, contrary to s 33 of the Crimes Act 1900 (NSW). The offence arose from a violent knife attack on a woman with whom the appellant had a prior de facto relationship. During the attack, which occurred in her home in the presence of her two young children, the appellant slashed the victim's face and pressed a knife to her throat.

The matter was committed to the District Court for sentencing. Her Honour Judge Payne convicted the appellant and imposed a head sentence of 6 years and 9 months' imprisonment, with a non-parole period of 4 years and 8 months. The offence carried a maximum penalty of 25 years' imprisonment and a standard non-parole period of 7 years under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The appellant sought leave to appeal against the sentence, arguing that the sentencing judge erred in her approach by double counting certain aggravating features of the offence.

  • Whether the sentencing judge erred in principle by double counting particular aggravating features of the offence when applying the standard non-parole period framework under R v Way (2004) 60 NSWLR 168.
  • Whether, if such an error was established, a more lenient sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1914 (NSW).

Decision

The Court of Criminal Appeal accepted the appellant's submission that the sentencing judge's approach demonstrated an error of principle. In applying the Way framework, the sentencing judge had not properly separated the two-stage analysis, creating the risk of double counting that Way had specifically identified and warned against. This constituted error.

However, the Court found that this error did not warrant the substitution of a lighter sentence. Sully J assessed the objective seriousness of the offence as very significant. The attack was unprovoked, involved the deliberate use of a knife, and the plea itself admitted an intent to cause grievous bodily harm. The injuries, though they healed relatively well, were serious at the time of infliction.

Proceeding to apply the correct methodology from Way, Sully J considered that the aggravating features alone placed the offence at mid-range seriousness at the very least. The mitigating factors, properly weighed, would result in only slight amelioration of that starting point. The 25 per cent discount applied for the guilty plea was not itself in error.

Conducting the required "instinctive synthesis" in accordance with Way paragraph 121, and having regard to both the maximum penalty and the standard non-parole period, the Court was not persuaded that a sound sentencing outcome could not reasonably yield the sentence actually imposed. The appeal was accordingly dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • Applying the Way framework in a manner that fails to keep the two stages of the standard non-parole period analysis properly separate constitutes an error of principle capable of creating impermissible double counting of aggravating features.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identifying a sentencing error does not automatically lead to a more lenient sentence: the court must still ask, under s 6(3) of the Criminal Appeal Act 1914, whether a different sentence is warranted in law.
  • Where the objective seriousness of an offence is assessed as very significant, mitigating factors may produce only modest amelioration when the court applies the correct sentencing methodology.
  • A standard non-parole period of 7 years, set against a 25-year maximum, operates as a legislative benchmark that the sentencing court must engage with, but it does not produce a mechanical outcome through formulaic calculation.
  • No error was established in the sentencing judge's decision to apply a 25 per cent discount for the guilty plea in these circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1914 (NSW), s 6(3)

Cases:
- R v Way (2004) 60 NSWLR 168
- Reg v Dodd (1991) 57 A Crim R 349
- Reg v Reyes [2005] NSWCCA 218
- Markarian v The Queen [2005] HCA 25
- Reg v Beavan (unreported, NSWCCA, 22 September 1991)