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Court of Criminal Appeal 27 February 2007

Winn v R

[2007] NSWCCA 44

Assault & violencePublic order & justice offences
SENTENCE APPEAL VIOLENT ASSAULTS ON POLICE STANDARD NON PAROLE PERIOD FAILURE TO CONSIDER SENTENCES REDUCED

Citation: Winn v R [2007] NSWCCA 44
Court: New South Wales Court of Criminal Appeal
Date: 27 February 2007
Judge(s): Adams J, Howie J, Price J

Background

The appellant was a man who pleaded guilty to two offences of violence against police officers arising from a domestic disturbance in March 2003. After an argument at home involving alcohol, he refused police entry, threatened self-harm, and ultimately punched one constable in the face and kicked a police vehicle door into the hand of another constable. Both officers sustained fractures and were off work for six weeks each, and one constable suffered permanent ankle impairment.

In the District Court, the appellant was sentenced to a minimum term of three years' imprisonment on the first count (malicious infliction of grievous bodily harm on a police officer) and a concurrent term of 18 months on the second count (assault occasioning actual bodily harm on a police officer). The appellant sought leave to appeal those sentences to the Court of Criminal Appeal.

  • Whether the sentencing judge erred in finding that the appellant had demonstrated remorse but not contrition, and whether any such distinction constituted an error of law.
  • Whether the sentencing judge failed to properly consider the standard non-parole periods applicable to each offence and to identify reasons for departing from them.
  • Whether the sentences imposed were manifestly excessive in light of the objective circumstances of the offences and the appellant's subjective features.

Decision

The Court found that the sentencing judge drew a distinction between "remorse" and "contrition," treating the appellant as having shown only the former but not the latter. Adams J concluded this distinction was legally untenable: a finding that an offender is remorseful necessarily involves acceptance of contrition, and the two concepts cannot sensibly be separated in this context. This amounted to a significant error of law.

The Court also found that the sentencing judge failed to engage properly with the standard non-parole period provisions. Under the relevant legislation, a sentencing court is required to use the standard non-parole period as a reference point and to identify specific reasons when departing from it. The District Court's failure to do so in a meaningful way constituted a further error warranting resentencing.

On resentencing, Adams J assessed the objective seriousness of the offences as falling well below the middle of the range. The offences were impulsive and committed in the context of a domestic crisis involving alcohol. The injuries, though significant, sat near the lower end of the range for these offences. The appellant had substantial good character, strong prospects of rehabilitation, and was unlikely to reoffend. His guilty plea was also taken into account.

The Court further noted that while a supervision period was not strictly necessary, a longer parole period than the statutory ratio would ordinarily produce was appropriate to support the appellant's ongoing rehabilitation.

Orders Made

  • Count 1 (malicious infliction of grievous bodily harm): minimum term of 1 year and 6 months' imprisonment commencing 9 September 2005 and expiring 8 March 2007, with a balance of term of 2 years expiring 8 March 2009.
  • Count 2 (assault occasioning actual bodily harm): fixed term of 1 year commencing 9 September 2005 and expiring 8 September 2006.
  • The appellant to be released to parole at the expiration of the minimum term on count one.
  • The sentences imposed in the District Court were quashed and the above sentences substituted.

Key Takeaways

  • A finding that an offender is remorseful necessarily encompasses contrition; a sentencing court cannot treat the two concepts as distinct in a way that operates to the offender's detriment.
  • Under the Crimes (Sentencing Procedure) Act 1999, a sentencing court must expressly engage with the standard non-parole period as a reference point and articulate reasons for any departure, whether upward or downward.
  • Factors identified as warranting a reduction below the standard non-parole period included: impulsive offending, injuries at the lower end of the relevant range, good character, strong rehabilitation prospects, low risk of reoffending, and a guilty plea.
  • A longer-than-statutory parole period may be appropriate where an offender has made genuine rehabilitative progress that the court considers worth encouraging, even where supervision is not otherwise required.
  • In dismissing the sentences imposed below and resentencing, the Court of Criminal Appeal reduced the minimum term on the primary count from three years to 18 months, reflecting the cumulative weight of the mitigating circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60(2), 60(3)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1)(c), 21A(3), 44, 54B(4)

Cases:
- R v Way (2004) 60 NSWLR 168