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Court of Criminal Appeal 13 February 2008

AYTON, Darren Lee v R

[2008] NSWCCA 13

Assault & violence
CRIMINAL PRACTICE & PROCEDURE APPEAL AGAINST SENTENCE SERIOUS ASSAULT RELEVANCE OF MENTAL RETARDATION SPECIAL CIRCUMSTANCES PARITY

Citation: AYTON, Darren Lee v R [2008] NSWCCA 13
Court: NSW Court of Criminal Appeal
Date: 13 February 2008
Judge(s): Hodgson JA, Kirby J, Buddin J

Background

The appellant pleaded guilty in the Lismore District Court to maliciously inflicting grievous bodily harm whilst in the company of others, contrary to s 35(2) of the Crimes Act 1900. The offence carried a maximum penalty of 10 years imprisonment. The sentencing judge, Black DCJ, imposed a total term of 3 years, with a non-parole period of 2 years and 3 months.

The offence arose from a group confrontation in September 2004. The appellant, then aged 23, travelled with six others to confront a man alleged to have physically abused his partner. The appellant knocked the victim unconscious with repeated blows, after which the group continued the attack using weapons including a golf club and a bottle. The victim suffered serious injuries including bilateral subdural haematomas, a broken jaw, a fractured rib, hearing loss, and various lacerations.

The appellant's personal circumstances were significant. He had an intellectually impaired background, a disrupted childhood involving foster care, and a history of drug and alcohol misuse. Expert evidence established that he was functioning in a range consistent with mild to moderate intellectual disability.

  • Whether the sentencing judge gave adequate weight to the appellant's mental retardation (intellectual disability) as a mitigating factor
  • Whether special circumstances existed warranting a longer balance of term (that is, a greater proportion of the sentence to be served on parole) to allow for supervision and support on release
  • Whether the sentences imposed on co-offenders Deake Drinnan and Julie Coleman gave the appellant a justifiable sense of grievance sufficient to ground a parity argument

Decision

On the question of intellectual disability, the Court found that the sentencing judge had acknowledged and taken into account the appellant's intellectual limitations. The judge had considered expert evidence, including a report from a psychologist, in forming the view that the appellant's disability was relevant to sentence. The Court found no error in the way this factor was weighed.

On special circumstances, the Court accepted that the appellant's intellectual disability and need for structured supervision on release were relevant considerations. However, the Court found that the sentencing judge had already addressed this by structuring the sentence with a non-parole period that was shorter than the statutory default ratio. No further adjustment was warranted.

On parity, the Court examined the sentences given to the two adult co-offenders. Mr Drinnan, aged 18 at the time, had received a more lenient sentence, but the Court noted significant differences: he was younger, had pleaded guilty at an earlier stage, and had provided a witness statement to assist prosecution. Ms Coleman had not personally inflicted any violence and the judge had not been satisfied she incited others to it. She also had what the sentencing judge described as a "strong subjective case" involving exceptional personal circumstances.

The Court concluded that, given these material differences, the appellant did not have a justifiable sense of grievance from either co-offender's sentence. No error in the original sentencing was established, and the appeal was dismissed.

Orders Made

  • Leave to extend time to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that intellectual disability is a relevant sentencing consideration, but its weight depends on how the sentencing court addresses it on the evidence before it.
  • A finding of special circumstances does not automatically require the maximum possible extension of the parole period; it is satisfied where the sentence structure already reflects the offender's rehabilitation needs.
  • Parity arguments require more than a difference in sentences between co-offenders. Where co-offenders differ materially in their role, age, criminal history, timing of plea, and subjective circumstances, a justifiable sense of grievance will not readily arise.
  • The principle from Lowe v The Queen (1984) and Postiglione v R (1997) applies: disparity between sentences is only a ground of appeal where it is marked and unjustifiable, not merely because outcomes differ.
  • No error was established in the sentencing judge's approach to either the objective seriousness of the offence or the subjective factors, including the appellant's background and intellectual limitations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)

Cases:
- R v Swan [2006] NSWCCA 47
- R v Elchami (NSW CCA, 15 December 1995, unreported)
- Carrion v R [2007] NSWCCA 174
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v R (1997) 189 CLR 295
- R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314
- R v Colgan [1999] NSWCCA 292
- R v Boney [2001] NSWCCA 432