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Court of Criminal Appeal 19 October 2005

R v Otway

[2005] NSWCCA 352

Assault & violence
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE DISCOUNT FOR PLEA OF GUILTY SPECIAL CIRCUMSTANCES PRE SIGNIFICANT ERROR OF FACT.

Citation: R v Otway [2005] NSWCCA 352
Court: NSW Court of Criminal Appeal
Date: 19 October 2005
Judge(s): McClellan CJ at CL, Adams J, Johnson J

Background

The appellant pleaded guilty in the Local Court to maliciously inflicting grievous bodily harm under s 35(1)(b) of the Crimes Act 1900, and maintained that plea in the District Court. The offence arose from a street altercation during which the appellant stabbed the victim twice in the abdomen with a flick knife. The victim was hospitalised but no major organs were damaged.

The District Court sentenced the appellant to an overall term of two years and four months, with a non-parole period expiring 25 February 2006. The sentencing judge declined to find special circumstances (a finding that can justify extending the parole period beyond the standard ratio), concluding that the appellant showed insufficient motivation for rehabilitation, in part because he had not accessed drug and alcohol counselling while in custody.

The appellant sought leave to appeal against the severity of the sentence, arguing that the sentencing judge had made a significant error of fact and had failed to properly assess his prospects for rehabilitation.

  • Whether the sentencing judge erred by relying on a pre-sentence report that had not been tendered in evidence
  • Whether that reliance constituted a significant error of fact that justified appellate intervention
  • Whether special circumstances existed to justify a longer parole period than the standard ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the discount applied for the guilty plea was adequate

Decision

The Court found that the pre-sentence report appeared not to have been tendered in evidence: it did not appear on the exhibit list, was not referred to in submissions or evidence, and the DPP's copy bore no exhibit marking. It followed that the sentencing judge's reliance on that report as the basis for finding the appellant had not engaged with drug counselling was not legitimate. That finding was the cornerstone of her Honour's conclusion that the appellant lacked genuine motivation for rehabilitation and that special circumstances did not exist.

The Court held this constituted a significant error of fact. In reality, the appellant had been receiving weekly psychiatric treatment in custody, had commenced antipsychotic medication, and was participating in a methadone programme. The psychiatric evidence from Dr Nielssen, accepted by the sentencing judge, established that the appellant's offending behaviour was substantially linked to amphetamine-induced psychosis, and that abstinence from drugs offered a reasonable chance of avoiding recurrence of psychotic symptoms. Adams J concluded that the appellant's apparent failure to engage earlier with drug programmes was better explained by his psychiatric condition than by any lack of genuine motivation.

Given those matters, the Court found that special circumstances did exist and that the appellant needed a longer period of supervised parole. The non-parole period imposed below was found to have exceeded by a significant margin what was appropriate. Adams J also noted, without resolving it as a ground of appeal, that the 22% discount applied for the guilty plea appeared lower than the full 25% available under Thomson and Houlton, particularly given that the appellant had voluntarily surrendered to police, admitted the offence, and pleaded guilty at the earliest opportunity.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Non-parole period quashed and substituted with a non-parole period commencing 26 May 2004 and expiring 19 October 2005
  • Appellant released to parole on 19 October 2005, subject to supervision by the Probation and Parole Service

Key Takeaways

  • A sentencing court cannot legitimately rely on a pre-sentence report that has not been tendered in evidence; doing so may constitute a significant error of fact warranting appellate intervention.
  • Where a factual finding central to assessing rehabilitation prospects rests on material improperly before the court, the appellate court will re-assess those prospects on the properly admitted evidence.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 may be established where an offender has genuine and ongoing treatment needs that require an extended period of supervised parole.
  • An offender's failure to access particular programmes while in custody will not necessarily indicate a lack of genuine motivation where a psychiatric condition provides an alternative explanation for that failure.
  • The Court of Criminal Appeal noted, without deciding, that a sentencing judge's reduction of the Thomson and Houlton guilty plea discount below 25% requires a proper basis; the fact that the accused did not plead guilty to a more serious charge that the Crown itself did not press was not considered a sound reason for the reduction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(1)(b) (maliciously inflicting grievous bodily harm) and s 33 (wounding with intent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (standard non-parole period ratio and special circumstances)

Cases
- R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 (principles governing the discount for a plea of guilty, including the availability of a 25% discount where a plea is entered at the first reasonable opportunity)