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Court of Criminal Appeal 28 July 2011

Arnold v R

[2011] NSWCCA 150

Assault & violence
CRIMINAL LAW SENTENCE 3 OFFENCES OF ASSAULT NON PAROLE PERIODS VARIED.

Citation: Arnold v R [2011] NSWCCA 150
Court: Court of Criminal Appeal, NSW
Date: 28 July 2011
Judges: McClellan CJ at CL, Blanch J, Davies J (judgment delivered by Davies J)

Background

The applicant pleaded guilty in the Dubbo District Court to three assault offences arising from a single incident at a hotel in Cobar in June 2008. The offences involved recklessly causing grievous bodily harm to one victim (who suffered a fractured clavicle, a failed bone graft, and lost teeth), recklessly wounding a second victim (a split lip requiring suturing), and assault occasioning actual bodily harm to a third victim (bruising and jaw soreness). All parties had been drinking together throughout the day following a funeral.

The sentencing judge imposed partially accumulated sentences totalling 3 years and 3 months, with a non-parole period of 2 years and 4 months. The sentencing judge had varied the statutory ratio between head sentence and non-parole period for counts 1 and 2 individually, but did not address special circumstances when the sentences were accumulated.

The applicant sought leave to appeal on two grounds: that the sentencing judge had failed to properly consider special circumstances, and that the first offence had been incorrectly assessed as mid-range in objective seriousness.

  • Whether the sentencing judge erred in categorising count 1 (recklessly causing grievous bodily harm) as mid-range in objective seriousness
  • Whether the sentencing judge erred by failing to consider special circumstances when accumulating the sentences, particularly given that the non-parole period ratio had already been varied for individual offences

Decision

On the second ground (objective seriousness of count 1), Davies J rejected the appeal. The assessment of where an offence sits on the scale of objective seriousness is essentially a factual finding, and the applicant could not demonstrate any of the recognised errors from House v The King that would justify intervention. The assault involved attacking the victim from behind, then repeatedly kicking him while he lay on the ground, resulting in serious injuries. Davies J described the conduct as "vicious and cowardly." The sentences imposed, after the guilty plea discount, suggested the sentencing judge had in fact placed the offence toward the lower end of mid-range.

On the first ground, the Court found error. The sentencing judge had varied the statutory ratio for counts 1 and 2 individually, but did not consider or refer to special circumstances when the sentences were accumulated. The resulting total non-parole period did not reflect the ratio variations that had already been applied at the individual offence level. Several indicators of special circumstances were present: it was the applicant's first time in custody, he had been continuously employed since leaving school, there was strong family support, one of the victims supported him, and his prospects of rehabilitation were assessed as good.

Davies J held that, given these factors and the sentencing judge's evident intention to vary the statutory ratio, it was appropriate to reduce the overall non-parole period. The total head sentence of 3 years and 3 months was preserved, but the non-parole period was reduced from 2 years and 4 months to 1 year and 10 months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences on counts 1 and 2 quashed
  • Count 1 resentenced: imprisonment for 3 years commencing 15 October 2009, with a non-parole period of 1 year and 10 months expiring 14 August 2011
  • Count 2 resentenced: imprisonment for 2 years and 3 months commencing 15 April 2010, with a non-parole period of 1 year and 4 months expiring 14 August 2011, with release to parole ordered on 14 August 2011
  • Total effective sentence: 3 years and 3 months with a non-parole period of 1 year and 10 months

Key Takeaways

  • A sentencing judge who varies the statutory non-parole period ratio for individual offences must also consider special circumstances when those sentences are accumulated; failing to do so can constitute error even where the individual sentences are otherwise unimpeachable.
  • The absence of any express reference to special circumstances, combined with subjective factors clearly capable of supporting a finding of special circumstances, was sufficient to ground appellate intervention in this case.
  • Assessing objective seriousness is a factual determination; the Court of Criminal Appeal confirmed it will not intervene unless the applicant identifies a recognised error under House v The King, such as reliance on irrelevant considerations, failure to consider relevant matters, or an outcome that was not open on the evidence.
  • Where multiple offences arise from a single incident and the offender and victims were known to each other, the Court of Criminal Appeal noted that general deterrence carries less weight than in cases involving assaults on strangers in or near licensed premises.
  • First-time custody, continuous employment history, strong rehabilitation prospects, family support, and victim support are all factors capable of establishing special circumstances warranting a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 35, 59 (referred to in the judgment)

Cases:
- House v The King (1936) 55 CLR 499
- Brindley v R (1993) 66 A Crim R 204
- Jackson v R [2010] NSWCCA 162
- R v Henry [2004] NSWCCA 306
- R v Johnson [2004] NSWCCA 140
- R v LWP [2003] NSWCCA 215
- Regina v Novakovic [2004] NSWCCA 437