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Court of Criminal Appeal 5 February 2007

Curtis v R

[2007] NSWCCA 11

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCING SENTENCING REMARKS PURPOSE OF SENTENCING REMARKS EXPLANATION FOR ALTERATION OF SENTENCE NEED FOR ECONOMY IN SENTENCING REMARKS

Citation: Curtis v R [2007] NSWCCA 11
Court: NSW Court of Criminal Appeal
Date: 5 February 2007
Judge(s): McClellan CJ at CL; Simpson J; Rothman J

Background

The applicant pleaded guilty in the District Court to five counts arising from a single episode of criminality over several hours on 22 to 23 December 2004. The charges included using an offensive weapon (two knives) to prevent lawful apprehension, assaulting a civilian, intimidating two people (one of whom had an intellectual impairment), and resisting a police officer.

The incident involved a protracted confrontation with police, during which the applicant used knives to threaten officers and stabbed a police dog. The sentencing judge in the District Court imposed a total effective sentence of approximately 11 years and 8 months, with a non-parole period of over 9 years, by staggering and accumulating the individual sentences.

The applicant sought leave to appeal against the severity of those sentences, arguing they were manifestly excessive.

  • Whether the sentencing judge erred by characterising the stabbing of the police dog as an act of "gratuitous cruelty," thereby treating it as an aggravating factor.
  • Whether the individual sentences were manifestly excessive given the objective seriousness of the offences and the applicant's subjective circumstances.
  • Whether the extent of accumulation of the sentences was excessive, producing an aggregate term that was disproportionate.
  • What role sentencing remarks should play, and how they should be structured and expressed.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, quashing the sentences and re-sentencing the applicant.

On the question of gratuitous cruelty, the Court found the sentencing judge erred in characterising the stabbing of the police dog as such. McClellan CJ at CL observed that a person armed with a knife, being pursued by a police dog, may react by using the knife out of fear of injury from the animal, rather than purely to facilitate escape. The killing of the dog was a relevant circumstance, but describing it as gratuitous cruelty was an error in the sentencing exercise.

Despite that error, the Court found the individual sentences imposed for each count were not in themselves manifestly excessive, given the serious nature of the offending. However, the degree to which the sentences were accumulated produced a total term that was excessive. The Court substituted a new sentencing structure that preserved appropriate recognition of the criminality across all five counts while reducing the overall burden of accumulation.

Simpson J also addressed the form of sentencing remarks, noting that they serve to inform the offender of the sentence and the reasons for it. Remarks should be in plain language, comprehensible to the offender and the lay reader, with references to authority kept to a minimum.

Orders Made

  • Leave to appeal against sentences granted.
  • Appeal allowed; all sentences quashed.
  • Applicant re-sentenced as follows:
  • Count 2 (assault): Fixed term of 6 months, commencing 13 February 2005.
  • Count 3 (intimidate S Ward): Non-parole period of 12 months from 13 August 2005, balance of term 4 months; total term 16 months.
  • Count 4 (intimidate W Davies): Non-parole period of 15 months from 13 February 2006, balance of term 5 months; total term 20 months.
  • Count 5 (resist arrest): Non-parole period of 9 months from 13 May 2007, balance of term 3 months; total term 12 months.
  • Count 1 (use weapon to avoid lawful apprehension): Non-parole period of 6 years from 13 February 2005 to 12 February 2011, balance of term 3 years to 12 February 2014; total term 9 years.

A subsequent addendum corrected an inconsistency in the commencement date for Count 1, adjusting it to 13 February 2005 (rather than 13 October 2005 as originally stated) so as to achieve the intended overall head sentence without extending the total term.

Key Takeaways

  • Characterising the stabbing of a police dog as "gratuitous cruelty" was an error where the evidence disclosed that the animal was trained to physically restrain suspects, and the person pursued by the dog may have acted partly out of fear of injury rather than purely to aid escape.
  • Accumulation of sentences, even where individual terms are not manifestly excessive, can produce a total effective sentence that is itself excessive and warrants intervention by an appellate court.
  • Under the principles from R v Thomson; R v Houlton, the applicant received discounts of 18.5% and 25% respectively on individual counts for his guilty pleas, but the discounting process did not insulate the overall accumulation from appellate review.
  • Sentencing remarks exist to communicate the sentence and its reasons to the offender in plain terms; the Court of Criminal Appeal reiterated that lengthy discussions of sentencing principle are generally matters for appellate courts, and that sentencing judges should aim for clarity and economy in their remarks.
  • Where a sentencing error is identified but the remaining serious elements of the offending still justify significant punishment, the appellate court may re-sentence by correcting the specific error without wholesale reduction of the penalty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 33B(1)(a), 58, 61, 562AB
- Crimes (Sentencing Procedure) Act 1999 (NSW): Part 4 Division 1A, ss 21A, 44(2)

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Bottin [2005] NSWCCA 254
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
- R v Keen [2004] NSWCCA 86
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168