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Court of Criminal Appeal 16 March 2007

ANDREWS v R

[2007] NSWCCA 68

Assault & violenceDomestic & family violence
CRIMINAL LAW OFFENDER OF ABORIGINAL BACKGROUND SENTENCING WHETHER SENTENCE EXCESSIVE

Citation: Andrews v R [2007] NSWCCA 68
Court: New South Wales Court of Criminal Appeal
Date: 16 March 2007
Judge(s): McClellan CJ at CL; Sully J; Howie J

Background

The appellant, an Aboriginal man aged 34 at the time of the offence, pleaded guilty in the District Court to one count of malicious wounding under the Crimes Act 1900 (NSW). The offence occurred on 20 February 2004, when he attacked his former de facto partner with glass bottles and kicked her while she lay on the ground, causing lacerations, bruising, and a fractured nose. Their six-month-old daughter was present during part of the incident. The appellant was heavily intoxicated at the time and had also consumed a narcotic drug.

The District Court sentenced the appellant to an overall term of 2 years and 3 months' imprisonment, with a non-parole period of 20 months. The sentencing judge applied a 25 per cent discount for an early guilty plea but declined to find special circumstances (a finding that, under the Crimes (Sentencing Procedure) Act 1999 (NSW), can justify a longer than usual parole period relative to the non-parole period). The appellant sought leave to appeal to the Court of Criminal Appeal.

The appellant had a prior criminal record, predominantly for violence and dishonesty, including a previous assault on the same victim. He had previously received a suspended sentence on conditions requiring drug and alcohol assessment and anger management, which he failed to satisfy. He had also twice absconded while on bail for the present offence.

  • Whether the sentencing judge erred by failing to find special circumstances, which would have justified a longer period of supervised parole.
  • Whether the overall sentence was manifestly excessive having regard to all the circumstances, including the appellant's Aboriginal background, substance abuse history, and prospects for rehabilitation.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on both grounds.

On the question of special circumstances, the Court found that the sentencing judge was entitled to decline the finding. The appellant had a history of failing to engage with supervision and rehabilitation conditions: he did not complete the requirements of his earlier suspended sentence, he twice absconded while on bail, and he failed to enter a drug rehabilitation centre as a bail condition. The Court noted that the appellant did not give evidence at sentence, which limited the weight that could be given to the expert report from Dr Nelson about his motivation to change.

The Court also considered the risk of "double counting" in sentencing. The sentencing judge had already taken the appellant's drug and alcohol problems into account as a mitigating factor in reducing the overall sentence. McClellan CJ at CL observed that these factors could not then be used a second time to justify a longer parole period through a special circumstances finding, relying on the principles in R v Simpson (2001) 53 NSWLR 704.

On manifest excess, the Court held that the 20-month non-parole period was not excessive. Any lesser non-parole period would have produced an inappropriately low sentence given the seriousness of the offending. The Court noted that the principles in R v Fernando (1992) 76 A Crim R 58, which address sentencing for Aboriginal offenders where alcohol and other background factors are relevant, had been considered by the sentencing judge, and no error was established in how those principles were applied.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a failure to find special circumstances is not an error where the offender has a demonstrated history of failing to comply with supervision and rehabilitation requirements.
  • The principle against "double counting" in sentencing is significant: where alcohol and drug abuse is already treated as a mitigating factor reducing the head sentence, it cannot also be deployed to justify a longer parole period through a special circumstances finding.
  • A finding of special circumstances requires some basis to conclude that a longer supervisory period would actually be of benefit; consistent non-compliance with prior court-ordered programs can undermine that inference.
  • Under the Fernando principles, an offender's Aboriginal background and the role of alcohol and social disadvantage in an offence are relevant mitigating considerations, but they do not automatically require a reduced sentence or a finding of special circumstances.
  • Where an offender does not give evidence at sentence, courts may give reduced weight to expert opinion about that offender's motivation and prospects for rehabilitation, as confirmed by reference to R v Qutami (2001) 127 A Crim R 369.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases:
- R v Fernando (1992) 76 A Crim R 58
- R v Simpson (2001) 53 NSWLR 704
- R v Qutami (2001) 127 A Crim R 369
- Ceissman v R (2001) 119 A Crim R 535
- Hickey (unreported, Court of Criminal Appeal, 27 September 1994)