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Court of Criminal Appeal 7 May 2009

CAR v R

[2009] NSWCCA 138

Assault & violence
CRIMINAL LAW APPEAL SENTENCING VICTIM IS APPLICANT'S YOUNG SON DELAY IN DISPOSITION OF PROCEEDINGS WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: CAR v R [2009] NSWCCA 138
Court: New South Wales Court of Criminal Appeal
Date: 7 May 2009
Judge(s): Grove J, Buddin J, Price J

Background

The applicant pleaded guilty in the District Court to maliciously causing a person to take a poison, namely carbon monoxide, so as to endanger life. The victim was his thirteen-month-old son. The offence carries a maximum penalty of 10 years imprisonment with no standard non-parole period.

The offence occurred during a custody access visit shortly after the applicant and his wife separated. The applicant drove his infant son to a remote forest, connected tubing from the exhaust pipe into the car's interior, and ran the engine while the child was in the vehicle. Police located the car in the early hours of the following morning. Both the applicant and the child were found asleep inside. The child was conscious when police arrived and was released from hospital without serious injury. The applicant was subsequently admitted as an involuntary psychiatric patient.

The sentencing judge in the District Court imposed a non-parole period of 12 months and a total term of 2 years imprisonment. The applicant sought leave to appeal on the basis that the sentence was manifestly excessive.

  • Whether the sentencing judge effectively sentenced the applicant for a more serious offence than the one to which he pleaded guilty, contrary to the principle in The Queen v De Simoni (1981) 147 CLR 383.
  • Whether the applicant's mental illness was appropriately taken into account in the sentencing exercise.
  • Whether delay in the disposition of proceedings was adequately reflected in the sentence.
  • Whether the sentence imposed was manifestly excessive.

Decision

On the De Simoni ground, the Court found no error in the sentencing judge's approach. The applicant contended that the judge had impermissibly treated the offence as though it were a more serious charge, but the Court rejected this characterisation. The factual findings relied upon by the sentencing judge were properly within the scope of the offence charged and did not amount to sentencing for a graver crime.

The Court accepted that the applicant had a significant mental health history and that psychiatric evidence played a central role in the sentencing proceedings. However, the Court found that the sentencing judge had taken mental illness into account appropriately. The applicant's illness was balanced against other factors, including that he had not acted entirely without rational purpose and that his actions were intended to cause anguish to his former wife by endangering their son.

On delay, the Court acknowledged that a substantial period had elapsed between the offence in October 2005 and sentencing, and that this factor warranted consideration. The sentencing judge had addressed this matter, and the Court was satisfied no error arose from its treatment.

Regarding manifest excess, the Court identified several significant aggravating features: the offence was planned, committed while the applicant was on conditional liberty, directed against a particularly vulnerable victim who was in his exclusive care and trust, and designed to inflict maximum distress on his former wife. The Court concluded that the sentence, though severe, fell within the legitimate range of the sentencing discretion and was not excessive. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge does not breach the De Simoni principle simply by relying on factual circumstances that are part of the charged offence, provided those circumstances do not elevate the conduct to a more serious offence.
  • A diagnosis of mental illness does not automatically reduce a sentence where the evidence also indicates that the offender's conduct was planned and motivated by rational, if distorted, purposes.
  • Significant delay between offence and sentencing is a factor that sentencing courts must address, but its weight can be offset by the gravity of the offending and the presence of strong aggravating circumstances.
  • The vulnerability of a child victim, and a parent's serious breach of the trust inherent in sole custody during an access visit, were treated as substantial aggravating features in the sentencing exercise.
  • Where an offence against a child is committed in the context of a marital or custody dispute, courts will treat the use of a child as a pawn in that dispute as a matter of considerable seriousness warranting significant denunciation.

Legislation and Cases Referenced

Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- R v Bailey [2001] VSC 461
- R v Barker, R v Gibson [2006] NSWCCA 20
- R v Black [2005] QCA 132
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Richards [2002] NSWSC 415
- R v Shorten [2005] NSWCCA 106
- R v Skipper (1992) 64 A Crim R 260
- R v Thew NSWCCA, unreported 25 August 1998
- R v Todd [1982] 2 NSWLR 517

Legislation:
- Offence of maliciously causing a person to take a poison so as to endanger life (maximum penalty: 10 years imprisonment); specific legislative provision not identified in the text provided.