Citation: Lynch v R [2007] NSWCCA 268
Court: NSW Court of Criminal Appeal
Date: 4 September 2007
Judge(s): McClellan CJ at CL, Howie J, Harrison J
Background
The appellant pleaded guilty in the District Court to three offences arising from a single incident in September 2004: assault, malicious damage to property, and use of an offensive instrument (a motor vehicle) with intent to intimidate. The offences occurred when the appellant drove to the home of his former wife and her partner, arrived armed with a large knife, confronted the partner, and then twice drove his car directly at him, on the second occasion ramming the front of the house. Young children were present in the yard during the incident.
The appellant had suffered a traumatic brain injury in a motorcycle accident in 2003, resulting in cognitive impairment and difficulties with executive functioning. He was also prescribed antidepressants but had not been taking them consistently. The sentencing judge accepted this background but found the offences were nonetheless deliberate and serious, and imposed a total sentence of two years and six months with a non-parole period of one year and three months.
On appeal, the appellant sought to tender additional medical evidence that had not been before the sentencing court, and argued that his trial counsel had been incompetent in failing to obtain that evidence.
Legal Issues
- Whether the Court of Criminal Appeal should receive fresh medical evidence not tendered at the sentencing hearing, including a report that was in existence at the time of sentence but not used, and a report from a specialist the appellant had declined to attend
- Whether the absence of that evidence resulted from incompetence by counsel at the sentencing hearing
- Whether the sentences imposed were manifestly excessive in light of the appellant's medical and psychiatric history
Decision
The Court considered two categories of fresh medical evidence. The first was an earlier report from the psychologist who had already given evidence at sentencing. That earlier report, dated March 2004, was available at the time of the sentencing hearing and had not been tendered. The Court found no proper basis to receive evidence that was available to the defence and simply not relied upon.
The second report came from a neurological specialist the appellant had failed to attend, despite being advised by his counsel to do so. A letter from counsel confirmed the appellant had been directed to attend the Illawarra Brain Injury Service but did not. The Court found that the failure to obtain this evidence was the appellant's own doing, not any deficiency in the conduct of his counsel.
The Court rejected the incompetence argument in direct terms. McClellan CJ at CL found that counsel had acted appropriately and given competent advice that the appellant chose not to follow. There was no miscarriage at the sentencing hearing attributable to legal representation.
On the question of whether the sentence was manifestly excessive, the Court held that, even if the fresh medical evidence were admitted, it would not justify any reduction. The Court observed that the original sentence was itself arguably lenient, noting that a significantly greater sentence would have been available without error. The appellant had gone to the premises armed with a knife with what the sentencing judge found to be a premeditated intention to cause serious harm.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Fresh medical evidence will not readily be received on a sentence appeal where the evidence existed and was available to the defence at the time of the original hearing but was simply not tendered.
- Where an appellant fails to attend a specialist as advised by counsel, the resulting absence of expert evidence does not constitute incompetence by counsel or a miscarriage of the sentencing hearing.
- A submission that counsel was incompetent must be supported by identifiable failures in conduct; advice that was appropriate but not followed by the client does not meet that threshold.
- In dismissing the appeal, the Court of Criminal Appeal noted the original sentence was arguably below what the facts would have justified, which foreclosed any argument of manifest excess.
- The sentencing court's findings that the appellant knowingly breached an apprehended violence order, attended with a weapon, and acted with premeditated intent weighed heavily against any reduction based on his medical history, even accepting that cognitive impairment and untreated depression were present.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61 (common assault), 195(1)(a) (malicious damage), 33B (use of offensive instrument)
Cases:
- R v Deng [2007] NSWCCA 216