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Court of Criminal Appeal 29 July 2009

Collon v R

[2009] NSWCCA 187

Homicide
CRIMINAL LAW SENTENCE STANDARD NON PAROLE PERIOD LATE PLEA BUT MENTAL HEALTH ISSUES SUGGESTED CASE EXCEPTIONAL UTILITARIAN VALUE OF PLEA

Citation: Collon v R [2009] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 29 July 2009
Judge(s): McClellan CJ at CL, Kirby J, Johnson J

Background

The appellant was convicted of the murder of his housemate at a shared Department of Housing unit in Redfern on 27 October 2006. The appellant, then aged 21, stabbed and cut the throat of the deceased following an argument over stolen cigarettes and a damaged bedroom door. He called 000 shortly after the attack and was found by police covered in blood outside the building.

The appellant had endured a severely deprived childhood, including physical and mental abuse, multiple failed foster care placements, and periods of homelessness. On the day of the offence, he had been sniffing butane since morning and drinking wine from the early afternoon. He entered a guilty plea on 18 February 2008, well after his committal.

The sentencing judge, Mathews AJ in the Supreme Court, imposed a total term of 21 years imprisonment with a non-parole period of 14 years and 6 months. The appellant sought leave to appeal on three grounds.

  • Whether the sentencing judge correctly assessed the offence as falling within the mid-range of objective seriousness for the purpose of the standard non-parole period
  • Whether the discount for the guilty plea (15%) was sufficient, given the late timing of the plea and the appellant's mental health circumstances
  • Whether the overall sentence was manifestly excessive in light of the appellant's deprived background, reduced mental capacity, youth, and prospects of rehabilitation

Decision

Ground 1: Mid-range assessment and standard non-parole period

The Court upheld the sentencing judge's finding that the offence fell within the mid-range of objective seriousness. The multiple wounds inflicted, including a severed throat, stab wounds to vital areas, and at least 27 injuries in total, placed the offending within that range despite the mitigating factors of intoxication and the appellant's impaired mental capacity arising from his upbringing. The sentencing judge had already made a significant downward departure from the standard non-parole period of 20 years, reflecting those personal circumstances. The Court found no error in that analysis.

Ground 2: Discount for guilty plea

The appellant argued the 15% discount was inadequate, pointing to the delay being attributable at least in part to mental health issues rather than a deliberate decision to contest the charge. The Court confirmed that the primary measure of a guilty plea discount remains its utilitarian value, being the extent to which the plea saves the time and expense of a trial. Although the plea was entered late, the Court accepted that no court time had been wasted and that some scope existed to award a modest premium above the baseline expected for a late plea. The sentencing judge's exercise of discretion in allowing 15% was held to be within range and free from error.

Ground 3: Manifest excess

The Court rejected the submission that the sentence was crushing or disproportionate. It acknowledged the appellant's difficult personal history and reduced moral culpability but concluded that the sentence, which already reflected a very significant discount from the standard non-parole period, was well within the available range. No error was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea remains the primary consideration when assessing an appropriate discount, even where a late plea is partly explained by mental health difficulties.
  • A sentencing court retains discretion to award a discount modestly above the baseline for a late plea where no court time has been wasted, but the extent of that discretion is limited.
  • Impaired mental capacity arising from a deprived upbringing and intoxication at the time of the offence may reduce moral culpability and justify departure from the standard non-parole period, but does not automatically remove the offence from the mid-range of objective seriousness.
  • In dismissing the manifest excess ground, the Court emphasised that a significant downward departure from the standard non-parole period had already been made to account for the appellant's personal circumstances, leaving the sentence comfortably within range.
  • Where a sentencing judge has weighed the relevant subjective factors and departed meaningfully from the standard non-parole period, an appellate court will not readily intervene on the basis that a lesser sentence should have been imposed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Cheatham [2002] NSWCCA 360
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Stewart [2008] NSWSC 1359
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Mulato v Regina [2006] NSWCCA 282
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
- R v Borkowski [2009] NSWCCA 102
- R v Israil [2002] NSWCCA 255