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11
Court of Criminal Appeal 1 May 2009

R v Cheh

[2009] NSWCCA 134

Assault & violenceTheft & propertyDomestic & family violence
CRIMINAL LAW AGGRAVATED BREAK AND ENTER CROWN APPEAL SENTENCE MANIFESTLY INADEQUATE APPEAL DISMISSED

Citation: R v Cheh [2009] NSWCCA 134
Court: New South Wales Court of Criminal Appeal
Date: 1 May 2009
Judge(s): McClellan CJ at CL; James J; Adams J

Background

The respondent pleaded guilty in the District Court to one count of specially aggravated break and enter and commit a serious indictable offence under s 112(3) of the Crimes Act 1900. The circumstances of aggravation were that the respondent knew persons were present in the premises, and that wounding occurred. The maximum penalty for the offence is 25 years imprisonment, and the standard non-parole period is 7 years.

The offending arose from a domestic context. The respondent entered the home of his former partner on the night of 26 February 2007 while heavily intoxicated. He assaulted her new partner, threatened to kill the complainant, and stabbed her twice in the chest. The complainant sustained punctured lungs and a deep cut to her hand after grabbing the blade of the knife. Their toddler witnessed part of the attack.

The sentencing judge imposed a non-parole period of 3 years 9 months with a balance of term of 1 year 3 months. The Crown appealed, contending the sentence was manifestly inadequate and that the sentencing judge gave undue weight to the respondent's subjective circumstances.

  • Whether the sentence imposed was manifestly inadequate in light of the objective seriousness of a specially aggravated break and enter involving wounding.
  • Whether the sentencing judge gave undue weight to the respondent's subjective features (including mental illness, alcohol dependency, and personal history) at the expense of other sentencing considerations.
  • How to characterise mental illness when it has a causal connection to the commission of the offence, particularly in the context of the standard non-parole period regime.
  • The proper approach to the utilitarian discount for a plea of guilty when other subjective factors are also present.

Decision

The Court of Criminal Appeal dismissed the Crown's appeal. The Court accepted that the sentence was lenient, but found that leniency alone does not establish manifest inadequacy. The sentencing judge was entitled to take a more favourable view of the respondent's subjective circumstances than the Crown contended for.

A central issue was the respondent's mental health. The Court characterised his diagnosed depression, which was causally connected to the offending and had gone untreated in the period leading up to the offence, as part of the objective circumstances of the case rather than merely a subjective matter personal to the offender. This distinction mattered because objective circumstances bearing a causal relationship to the offending can reduce the objective seriousness of the offence itself, not merely inform the level of punishment.

The Court drew on the analysis in R v Way (2004) 60 NSWLR 168, which distinguishes between circumstances of the offence (including mental illness that affects the offender's capacity to reason or control conduct, when causally linked to the offending) and circumstances of the offender more broadly. Here, the respondent's mental illness fell into the former category, significantly reducing the objective seriousness of the offending below the midrange of cases to which the standard non-parole period is directed.

On the question of the plea discount, the Court confirmed that the utilitarian discount for a guilty plea is applied after all relevant features have been synthesised into an indicative sentence. Other features such as cooperation or remorse do not attract a similar mathematical reduction and cannot be conflated with the plea discount itself.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown's appeal, the Court of Criminal Appeal confirmed that a lenient sentence is not automatically manifestly inadequate; the Crown must demonstrate an error in the sentencing exercise, not merely a more severe outcome it would prefer.
  • Mental illness that has a direct causal connection to the commission of an offence is properly characterised as part of the objective circumstances of the offence, not merely a subjective feature of the offender, and can significantly reduce the objective seriousness of the conduct.
  • Under the standard non-parole period regime, sentencing courts must identify with some specificity the objective circumstances that place an offence above, below, or at the midrange case to which the standard period applies.
  • The utilitarian discount for a guilty plea operates on the sentence that would otherwise have been imposed, after the instinctive synthesis of all other relevant factors. It cannot be bundled together with other subjective features as though they attract equivalent reductions.
  • A history of untreated depression, significant personal trauma, and alcohol dependency, where causally connected to offending, may substantially influence the assessment of moral culpability even in cases involving serious violence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 98

Cases:
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- R v Engert (1996) 84 A Crim R 67
- Veen v The Queen [No 2] (1988) 164 CLR 465
- R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
- R v Knight; R v Bivanua [2007] NSWCCA 283; 176 A Crim R 338
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Burton [2008] NSWCCA 128
- R v Wall [2002] NSWCCA 42
- Letteri (unreported, Court of Criminal Appeal, 18 March 1992)