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Court of Criminal Appeal 16 June 2010

DUNN v R

[2010] NSWCCA 128

Assault & violence
CRIMINAL LAW AND PROCEDURE SENTENCE STANDARD NON PAROLE PERIOD VICTIM LOSES SIGHT OF EYE CONSIDERABLE LENIENCE IN IMPOSITION INTERVENTION NOT CALLED FOR

Citation: DUNN v R [2010] NSWCCA 128
Court: New South Wales Court of Criminal Appeal
Date: 16 June 2010
Judge(s): McClellan CJ at CL, Grove J, Johnson J

Background

The applicant was originally indicted on a single count of causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900, an offence triable only on indictment. On the day the matter was listed for trial, he pleaded guilty to the lesser charge of recklessly causing grievous bodily harm under s 35(2), and the Crown accepted that plea in satisfaction of the indictment.

The offence arose from a street altercation in Kempsey between the applicant and his neighbour, with whom he had an ongoing dispute. During the fight, the applicant kneed the victim repeatedly in the face, causing multiple fractures to the cheek and eye socket, a fractured nose, a broken tooth, and permanent loss of sight in the victim's right eye.

In the District Court at Port Macquarie, Boulton ADCJ sentenced the applicant to a total term of 30 months' imprisonment, comprising a non-parole period of 15 months and a balance term of 15 months. The applicant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge erred by failing to make an express finding about the objective seriousness of the offence relative to the standard non-parole period range.
  • Whether a sentencing judge is obliged to articulate in descriptive terms the constituents of a hypothetical "abstract offence" in the middle of the range when applying the standard non-parole period framework.
  • Whether the fact that an offence under s 35(2) of the Crimes Act could theoretically be dealt with in the Local Court was a relevant sentencing consideration, given that the applicant was convicted in the District Court following a plea to an uncharged offence in satisfaction of an indictment.

Decision

On grounds 1 to 3, the Court accepted that the sentencing judge had not expressly stated he had undertaken the standard non-parole period comparison exercise. However, the Court rejected the submission that this constituted a material error requiring intervention. Grove J held that a sentencing judge is not obliged to put into descriptive words the constituents of some purely hypothetical offence sitting in the middle of the range. The obligation is to assess where the offence before the court sits on the scale of seriousness, not to construct a verbal account of an abstract comparator.

The Court noted that the sentence imposed reflected considerable leniency, having regard to the serious and permanent injury caused to the victim. Even accepting some imprecision in the sentencing remarks, no lesser sentence was required in law. The Court was not persuaded that the sentencing exercise had miscarried in a way that warranted intervention.

On ground 4, the applicant argued that the sentencing judge failed to consider that the offence under s 35(2) could have been dealt with in the Local Court, a factor that has sometimes been treated as relevant to sentence. The Court rejected this argument on two independent grounds. First, the conviction arose from a plea accepted in satisfaction of an indictment in the District Court, meaning the matter could not in those circumstances have been dealt with in the Local Court at all. Second, and in any event, the leniency of the sentence itself indicated the point had not been overlooked.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge applying the standard non-parole period framework under the Crimes (Sentencing Procedure) Act 1999 is not required to articulate the specific characteristics of a hypothetical "abstract offence" in the middle of the range. The obligation is to assess the relative seriousness of the actual offence, not to construct a verbal description of a comparator.
  • Where imprecision in sentencing remarks does not produce a sentence that is manifestly excessive or otherwise wrong in law, the Court of Criminal Appeal will not intervene solely because the judge failed to express the standard non-parole period comparison with explicit detail.
  • The proposition that a sentencing court should consider whether an offence could have been dealt with in the Local Court has no application where the conviction arose from a plea accepted in satisfaction of an indictment in the District Court. In that situation, Local Court jurisdiction was never available.
  • Considerable leniency in the sentence imposed can itself indicate that a potentially mitigating factor, such as Local Court jurisdiction, was not overlooked, even where the sentencing judge's remarks do not address it expressly.
  • Permanent loss of sight in one eye as a result of kneeing a victim repeatedly in the face was treated by the sentencing court as serious offending, with the relative leniency of the sentence reflecting specific subjective circumstances of the offender rather than a low assessment of the offence's gravity.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Criminal Procedure Act 1986 (NSW), s 153

Cases:
- R v Way (2004) 60 NSWLR 168
- R v Knight (2007) 176 A Crim R 338
- R v Mitchell (2007) 177 A Crim R 94
- R v AJP (2004) 158 A Crim R 575
- R v Crombie [1999] NSWCCA 297
- R v El Masri [2005] NSWCCA 167
- R v Depoma [2003] NSWCCA 382
- Phan v R [2010] NSWCCA 8
- R v McEvoy [2010] NSWCCA 110