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9
Court of Criminal Appeal 2 August 2007

WATERS v REGINA

[2007] NSWCCA 219

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING INTOXICATION ABORIGINAL OFFENDER

Citation: Waters v Regina [2007] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 2 August 2007
Judge(s): Giles JA, James J, Hislop J

Background

The applicant pleaded guilty in the District Court to breaking and entering a residential flat and committing assault occasioning actual bodily harm, as well as a separate charge of common assault. Both offences occurred on 20 December 2005 in a country town, when the applicant, highly intoxicated, entered the flat of two young siblings he had never met, assaulted the male victim repeatedly, and made threats to shoot and stab both victims.

Judge Payne of the District Court sentenced the applicant to four years and three months (with a two-year, six-month non-parole period) for the principal offence, after applying a 25 per cent discount for the guilty plea to a starting point of five years and nine months. A concurrent fixed term of eleven months was imposed for the common assault.

The applicant sought leave to appeal, arguing the head sentence before discount was manifestly excessive having regard to his level of intoxication, his personal background as an Aboriginal offender, and other subjective circumstances.

  • Whether the starting-point head sentence of five years and nine months (before the guilty plea discount) was manifestly excessive for the principal offence
  • Whether the sentencing judge gave sufficient weight to the applicant's severe intoxication as a relevant factor in mitigation
  • Whether the sentencing judge adequately considered the applicant's background as an Aboriginal offender, including the principles from R v Fernando, in assessing his subjective circumstances

Decision

James J (with whom Giles JA and Hislop J agreed) found that the sentencing judge had not erred in her assessment of the objective seriousness of the offences. The intrusion into the victims' home, the repeated physical assaults, and the threats involving a firearm and knife were all properly characterised as serious aggravating features.

However, James J concluded that the starting-point sentence of five years and nine months was manifestly excessive once all relevant subjective circumstances were weighed. In reaching that view, the Court took account of the applicant's extreme intoxication, his lack of prior planning, the principles from R v Fernando concerning the relevance of an Aboriginal offender's disadvantaged background, and statistical sentencing data from the Judicial Commission, which suggested the starting point sat at the high end even for the aggravated form of the offence.

The Court reduced the starting-point head sentence to four and a half years, then applied the same 25 per cent guilty-plea discount, producing a sentence of three years and four months. Special circumstances were found (as the original sentencing judge had also found), justifying a non-parole period shorter than the statutory default ratio. The resulting non-parole period was set at two years, with a balance of term of one year and four months.

The eleven-month fixed term for the common assault was left undisturbed and remained fully concurrent with part of the non-parole period.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentence for breaking and entering and committing a serious indictable offence quashed
  • In lieu, a non-parole period of two years commencing 20 December 2005 and expiring 19 December 2007, with a balance of term of one year and four months commencing 20 December 2007 and expiring 19 April 2008
  • Sentence of a fixed term of eleven months for the common assault confirmed
  • Earliest date of eligibility for release on parole: 19 December 2007

Key Takeaways

  • The Court of Criminal Appeal confirmed that a manifestly excessive starting-point sentence (before applying a guilty-plea discount) is a recognised ground of appeal, even where the objective facts of the offences are serious.
  • Under the principles in R v Fernando, a sentencing court must give genuine and individualised consideration to the background of an Aboriginal offender, including the effects of social disadvantage, when assessing subjective circumstances.
  • Severe intoxication, where it negates planning or premeditation rather than aggravating the offending, remained a relevant mitigating factor in the sentencing calculus in this case.
  • Judicial Commission sentencing statistics, while to be approached with caution, can assist in identifying whether a proposed head sentence sits outside the range of sentences typically imposed for comparable offences.
  • In allowing the appeal only in part, the Court left the concurrent sentence for the common assault unchanged, demonstrating that a partial reduction in one component of a sentence does not automatically require re-sentencing across all charges.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61, 112(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346