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Court of Criminal Appeal 16 August 2011

Dyer v R

[2011] NSWCCA 185

Assault & violence
CRIMINAL LAW SENTENCE APPEAL ARGUMENT NOT ADVANCED IN DISTRICT COURT ERROR NOT ESTABLISHED APPEAL DISMISSED

Citation: Dyer v R [2011] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 16 August 2011
Judges: McClellan CJ at CL, Hidden J, Johnson J

Background

The applicant pleaded guilty in the Parramatta District Court to entering a building with intent to commit assault occasioning actual bodily harm, in company, contrary to s 111(2) of the Crimes Act 1900. The offence arose from a premeditated, late-night attack on a known victim at his home: the applicant entered with two masked accomplices, produced a golf club concealed in his sleeve, and repeatedly struck the victim before punching and kicking him in a separate room. The attack followed an earlier assault on the same victim, during whose sentencing the applicant had mouthed a death threat.

The sentencing judge imposed a non-parole period of three years and four months, with a balance of term of one year and two months. A 10% discount for the utilitarian value of the late guilty plea was applied, and a Form 1 offence of assault occasioning actual bodily harm while in company was taken into account.

The applicant sought leave to appeal on the sole ground that the sentencing judge erred by failing to find "special circumstances" under the Crimes (Sentencing Procedure) Act 1999, specifically by not accounting for the applicant's risk of institutionalisation arising from his cumulative custodial history.

  • Whether the sentencing judge erred by declining to find "special circumstances" that would justify extending the parole period (and correspondingly reducing the non-parole period relative to the total sentence)
  • Whether the applicant's risk of institutionalisation, as a product of his lengthy custodial history, constituted a material consideration that the sentencing judge was required to weigh
  • Whether, even if error were established, a lesser sentence was warranted in law

Decision

The Court granted leave to appeal but dismissed the appeal. Johnson J, with whom McClellan CJ at CL and Hidden J agreed, found that the institutionalisation argument had not been raised before the sentencing judge in the District Court. Because the submission was not advanced at first instance, no error could be established in the sentencing judge's failure to address it.

Johnson J acknowledged that a risk of institutionalisation can, in appropriate cases, support a finding of special circumstances. However, he held that even if such a finding had been open, it would not necessarily have followed given the other competing factors: the sentencing judge's unchallenged finding of dangerousness, the applicant's poor history of compliance with conditional liberty (the offence was committed while on parole), and the need for the non-parole period to reflect the minimum time the applicant should spend in custody for this serious offending.

On the question of whether any lesser sentence was warranted, the Court was unpersuaded. The 14-month parole period already built into the sentence represented a significant period of conditional liberty. Even assuming error had been demonstrated (which the Court found it had not), s 6(3) of the Criminal Appeal Act 1912 would not have been satisfied.

Hidden J added a brief observation that it was regrettable the issue had not been ventilated below, noting that it would have called for careful consideration had it been raised. He confirmed, however, that a shorter non-parole period would not have reflected the applicant's criminality in the circumstances.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A risk of institutionalisation arising from cumulative custodial history is a recognised factor that may, in a given case, support a finding of "special circumstances," but no such finding is mandated: it must be weighed alongside other sentencing considerations.
  • No error was established where a sentencing argument had not been advanced at first instance; the Court of Criminal Appeal is a court of error and cannot be called upon to correct a matter the sentencing judge was never invited to address.
  • In dismissing the appeal, the Court confirmed that even where an argument might have had some merit if properly raised, an appellate court retains the separate question of whether any lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.
  • Factors such as a finding of dangerousness, offending while on parole, and a poor record of compliance with conditional liberty can outweigh any claim that special circumstances should be found to extend the supervisory parole period.
  • Hidden J's remarks signal that sentencing courts may have an independent obligation to consider the significance of evidence before them, even where parties fail to draw attention to it, though this did not alter the outcome on the facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 111(2), 112(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Dyer v R [2006] NSWCCA 274
- R v Hemsley [2004] NSWCCA 228
- R v Gower (1991) 56 A Crim R 115
- R v Binnie [2000] NSWCCA 483
- R v Visconti [1982] 2 NSWLR 104
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Quayle v R [2010] NSWCCA 16
- Edwards v R [2009] NSWCCA 199
- Jackson v R [2010] NSWCCA 162