Citation: R v McEvoy [2010] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 21 May 2010
Judge(s): Grove J, Simpson J, RA Hulme J
Background
The respondent pleaded guilty in the District Court to three charges: supply of a prohibited drug (ecstasy), possession of a prohibited weapon without a permit, and malicious wounding with intent to cause grievous bodily harm. The wounding charge arose from an unprovoked knife attack on a victim at a hotel car park in Leura, in which the respondent stabbed the victim multiple times to the upper body, head, face, neck, arm, and mouth. The victim required hospitalisation, surgery, and intensive care, and was left with permanent scarring and psychological injury.
English DCJ sentenced the respondent to a total term of four and a half years, with a non-parole period of two years and nine months. Five additional offences, including further drug supply and multiple firearms-related matters, were taken into account on a Form 1 (a procedure allowing ancillary offences to be factored into the overall sentence without separate conviction and punishment).
The Crown appealed under section 5D of the Criminal Appeal Act 1912, contending that the sentences were manifestly inadequate and that the sentencing process had miscarried in specific respects concerning the malicious wounding and firearms offences.
Legal Issues
- Whether the sentence imposed for malicious wounding with intent to cause grievous bodily harm was manifestly inadequate
- Whether the sentencing judge erred in failing to accumulate (that is, run consecutively rather than concurrently) the sentence for the firearms offence
- Whether the sentencing judge erred in her assessment of the offending as falling within the mid-range of objective seriousness, and whether sufficient specificity was given to that finding
- Whether the aggregation of any errors in the sentencing process was sufficient to warrant appellate intervention
- Whether, even if errors were established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene given the respondent's rehabilitation progress
Decision
Simpson J (with whom Grove J and RA Hulme J agreed) found that the sentencing process had indeed miscarried in relation to the malicious wounding offence, producing a sentence that was manifestly inadequate. The failure to accumulate the firearms sentence compounded that inadequacy. These findings would ordinarily have required the Court to intervene and re-sentence.
However, the Court exercised its residual discretion not to intervene. The respondent had filed exceptional evidentiary material from Corrective Services authorities demonstrating that rehabilitation was well advanced. The Court was satisfied that interfering with that process at that stage was not appropriate.
The judgment also addressed the legal uncertainty that had existed, at the time of the hearing, around the application of section 68A of the Crimes (Appeal and Review) Act 2001, which abolished the so-called "double jeopardy" rule in Crown appeals. That rule had previously led appellate courts to impose sentences at the lower end of an available range when allowing Crown appeals, in recognition of the respondent being sentenced a second time. By the time judgment was delivered, that uncertainty had been resolved by the five-judge bench in R v Carroll and R v JW, and the Court applied those principles.
The Crown appeal was dismissed on the basis of the residual discretion, not because the sentencing was found to be adequate.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that an appellate court retains a residual discretion to decline to intervene even where sentencing errors are established and a sentence is manifestly inadequate, where re-sentencing would disrupt a well-advanced rehabilitation process.
- A finding that the sentencing process miscarried, and that a sentence was manifestly inadequate, does not automatically compel resentencing. The circumstances of the offender at the time of the appeal, including demonstrated rehabilitation, are relevant to whether the discretion to intervene should be exercised.
- The abolition of the "double jeopardy" rule in Crown appeals by section 68A of the Crimes (Appeal and Review) Act 2001 removes the obligation to impose a lesser sentence than would otherwise be appropriate simply because the respondent faces sentencing for a second time. The scope and application of that provision were authoritatively resolved in R v Carroll [2010] NSWCCA 55 and R v JW [2010] NSWCCA 49.
- Failure to accumulate a sentence for a related but distinct firearms offence was treated as a specific error that exacerbated an already inadequate overall sentence for malicious wounding with intent to cause grievous bodily harm.
- Where a Form 1 offence involves a revoked Community Service Order, a sentencing court should take care to distinguish between unsatisfactory performance of community service and an inability to perform it due to subsequent incarceration on new charges.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), including s 68A (as amended)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Pt 3 Div 3, Pt 4 Div 1A, s 44(2)
- Criminal Appeal Act 1912 (NSW), s 5D
Cases:
- R v Carroll [2010] NSWCCA 55
- R v JW [2010] NSWCCA 49
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Wall [2002] NSWCCA 42
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v Burgess [2006] NSWCCA 319
- R v Cheh [2009] NSWCCA 134
- R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338
- R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94