Citation: McIntyre v R [2009] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 18 December 2009
Judge(s): Macfarlan JA, Blanch J, Johnson J
Background
The appellant pleaded guilty in the Penrith District Court to two offences: assault occasioning actual bodily harm against his elderly, mobility-impaired mother (s 59 Crimes Act 1900), and assaulting a police officer in the execution of his duty (s 58 Crimes Act 1900). An offensive language offence was taken into account on a Form 1.
The s 59 offence involved a sustained and terrifying attack in which the appellant grabbed his mother by the throat, punched her repeatedly, and threatened to stab her while holding a carving knife. The victim had both knees replaced and wore a cast on her ankle. The s 58 offence occurred at Quakers Hill Police Station, where the appellant punched a senior constable beneath the eye while being processed for custody.
The District Court imposed a total effective sentence of two years and six months imprisonment with a non-parole period of one year and eight months. The appellant sought leave to appeal, arguing the sentences were affected by two specific errors and were manifestly excessive.
Legal Issues
- Whether the sentencing judge breached the De Simoni principle by taking into account the injury caused to the police officer when assessing the objective seriousness of the s 58 offence (assault police, not assault occasioning actual bodily harm)
- Whether the sentencing judge erred by refusing to consider the possibility of summary disposal of the s 58 offence on the basis that the appellant would have received a 25% discount for an early plea in the Local Court
- Whether the vulnerability of the victim was a legitimate sentencing consideration for the s 59 offence
- Whether general deterrence carried particular weight for offences of assault against police
- Whether either sentence, or both, were manifestly excessive
Decision
The Court of Criminal Appeal found that two errors had been established, but dismissed the appeal on the basis that neither error warranted any reduction in sentence.
On the first ground, the court confirmed a breach of the De Simoni principle. The sentencing judge had impermissibly referred to the injury caused to the police officer when assessing objective seriousness for the s 58 offence. Because the appellant was not charged with assault occasioning actual bodily harm against the officer, that aggravating factor could only be taken into account if it would have been relevant to a more serious charge not actually prosecuted. The court characterised this error as minor and of passing significance in the sentencing remarks, concluding it did not materially affect the outcome.
On the second ground, the court accepted that the sentencing judge had wrongly declined to consider summary disposal solely because the appellant would receive a discount for an early plea in the Local Court. That reasoning was inconsistent with the correct approach. However, the court went on to apply the correct analysis itself and concluded that, on the facts, summary disposal would not have operated as a mitigating factor. The s 58 offence involved a deliberate punch to the face of a police officer; the offence was properly dealt with on indictment.
On the remaining issues, the court confirmed that the victim's physical vulnerability was a legitimate aggravating factor for the s 59 offence, and that general deterrence carries significant weight in sentencing for assaults on police officers. Having regard to the appellant's criminal history, the nature of both offences, and the subjective material, the court concluded that no lesser sentence was warranted in law.
Orders Made
- Leave to appeal granted
- Appeal against sentence dismissed
Key Takeaways
- A sentencing court breaches the De Simoni principle when it takes into account injury caused to a victim as an aggravating factor if that injury would elevate the conduct to a more serious offence than the one actually charged. For a s 58 assault police offence, reference to the officer's injuries was impermissible because the appellant was not charged under s 59 in respect of that victim.
- Where a sentencing error is established, the Court of Criminal Appeal will still dismiss the appeal if, on a correct application of the relevant principles, no lesser sentence is warranted in law under s 6(3) of the Criminal Appeal Act 1912.
- The availability of summary disposal of an offence is a legitimate sentencing consideration, but it does not automatically operate to reduce sentence. Where the circumstances of the offence make indictment-level treatment appropriate, the theoretical availability of a Local Court hearing carries no mitigating weight.
- Physical vulnerability of an assault victim is a recognised aggravating factor. In this case, the victim's limited mobility due to joint replacements and an ankle cast, all known to the appellant, properly informed the assessment of objective seriousness.
- General deterrence carries particular significance when sentencing for assaults on police officers in the execution of their duty, given the public interest in protecting those who enforce the law.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 58, 59
- Summary Offences Act 1988 (NSW), s 4A(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Mental Health Act 2007 (NSW)
Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- Markarian v The Queen (2005) 228 CLR 357
- Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1991-1992) 175 CLR 218
- R v Hooper [2004] NSWCCA 10
- R v Overall (1993) 71 A Crim R 170
- R v Lardner (NSWCCA, 10 September 1998, unreported)
- Fitzgerald v Kennard (1995) 38 NSWLR 184
- Barton v R [2009] NSWCCA 285
- Edwards v R [2009] NSWCCA 199
- R v McNaughton (2006) 66 NSWLR 566
- Collins v Wilcock [1984] 1 WLR 1172
- R v Abboud [2005] NSWCCA 251