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23
Court of Criminal Appeal 6 June 2011

Weir v Regina

[2011] NSWCCA 123

Assault & violence
CRIMINAL LAW RECKLESSLY CAUSING GRIEVOUS BODILY HARM SENTENCING RESENTENCE

Citation: Weir v Regina [2011] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 6 June 2011
Judges: Macfarlan JA, Johnson J, Garling J (judgment delivered by Garling J)

Background

The appellant pleaded guilty in the District Court to two offences: recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900, and intentionally or recklessly destroying property under s 195(1)(a) of the same Act. The offences arose from an incident on 1 February 2009 in which the appellant armed himself with a claw hammer, went to a neighbour's unit in a Waterloo apartment block, and struck the neighbour twice. The victim sustained a tendon rupture requiring surgery, a laceration to the forearm, a compound fracture of his right big toe, and a forehead laceration.

The appellant had a diagnosis of chronic paranoid schizophrenia and a long history of poly-substance abuse. His mental illness was identified as having played an indirect role in the offending. Expert evidence indicated that effective treatment could substantially reduce his risk of reoffending.

King DCJ sentenced the appellant in the District Court on 17 June 2010. The appeal to the Court of Criminal Appeal was confined to the sentence imposed on the first count (recklessly causing GBH) and rested on a single ground: that the sentencing judge had denied the appellant procedural fairness by imposing a longer sentence than the one indicated as a "tentative" view during submissions, without providing any warning.

  • Whether the sentencing judge denied the appellant procedural fairness by departing, without warning, from a sentence that had been indicated during the course of submissions as a "tentative" view.
  • If a denial of procedural fairness was established, what the appropriate resentence should be, having regard to the standard non-parole period, the plea of guilty, the appellant's subjective circumstances, and his conduct since release.

Decision

The Court of Criminal Appeal accepted that the sentencing judge had expressed what was characterised as a "tentative" view during submissions, indicating a particular sentence. The judge then imposed a longer sentence without alerting the parties to the change or providing an opportunity to make further submissions. The Court held that this amounted to a denial of procedural fairness.

The principle applied is well established: where a sentencing judge forms a view that differs materially from an indication given during the hearing, fairness requires that the parties be warned and given an opportunity to address the revised position. Failing to do so is a procedural error capable of vitiating the sentence. The Court granted leave to appeal and upheld the appeal on this basis.

On resentencing, the Court took into account the objective seriousness of the offending (mid-range), the 10 per cent discount for the guilty plea, the appellant's mental illness and substance abuse history, and the standard non-parole period of four years as a relevant guideline. The Court also had regard to evidence that, since his release on parole in September 2010, the appellant had been compliant with antipsychotic medication, was attending support groups, and remained drug free. The Court found his prospects of rehabilitation had improved since the original sentence.

The Court resentenced the appellant to a total term of three years' imprisonment, comprising a non-parole period of 18 months and a balance of term of 18 months, backdated to 1 February 2009. This reduced the total term from four years (as originally imposed) to three years.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Sentence imposed by King DCJ on 17 June 2010 in respect of the offence contrary to s 35(2) of the Crimes Act 1900 is quashed.
  • In lieu thereof, the appellant is sentenced to a non-parole period of 1 year and 6 months commencing 1 February 2009 and expiring 31 July 2010, with a balance of term of 1 year and 6 months commencing 1 August 2010 and expiring 31 January 2012.

Key Takeaways

  • A sentencing judge who departs materially from a "tentative" indication given during submissions must warn the parties and afford them an opportunity to address the revised position. Failure to do so constitutes a denial of procedural fairness and may ground a successful sentence appeal.
  • The Court of Criminal Appeal confirmed that, even where a standard non-parole period applies, a guilty plea means that period is not directly applicable. It remains relevant as a guideline or yardstick rather than a fixed starting point.
  • Post-sentence conduct, including compliance with medication and demonstrated rehabilitation efforts following release on parole, is a legitimate consideration when a court of appeal proceeds to resentence.
  • Where mental illness has played an indirect role in the offending, a sentencing court may treat general deterrence as a less significant factor, and may also recognise that a custodial sentence will weigh more heavily on the offender than it would on others.
  • In dismissing the adequacy of the original sentence, the Court reduced the total term by one year, reflecting the combined weight of the appellant's subjective circumstances and his improved rehabilitation prospects.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 195(1)(a)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Baroudi v Regina [2007] NSWCCA 48
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Button v Regina [2010] NSWCCA 264
- Pantorno v The Queen (1989) 166 CLR 466
- Parker v DPP (1992) 28 NSWLR 282
- R v Thawer [2009] NSWCCA 158
- Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1