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Court of Criminal Appeal 8 September 2011

Lewis v R

[2011] NSWCCA 206

Sexual offencesAssault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE WHERE SENTENCE WAS MANIFESTLY EXCESSIVE

Citation: Lewis v R [2011] NSWCCA 206
Court: NSW Court of Criminal Appeal
Date: 8 September 2011
Judge(s): Whealy JA, Latham J, Harrison J

Background

The applicant pleaded guilty in the Armidale District Court to a series of serious offences committed in late 2008 and early 2009, including break and enter with a serious indictable offence, intimidation, steal from dwelling, and sexual assault. The offending involved intrusions into the residences of female staff at a school where the applicant worked as a lawn mower. The most serious offence involved the applicant entering a 17-year-old victim's bedroom while she slept and digitally penetrating her.

Freeman DCJ sentenced the applicant to a total term of 8 years and 10 months imprisonment, commencing 4 February 2009, with a non-parole period of 5 years and 6 months. The sentencing judge found that the applicant had an intellectual disability, alcohol-related brain damage, and chronic alcoholism, and that his intoxication contributed to the offending. He was found to have the functional level of a six-year-old in terms of interpersonal skills and coping abilities.

The applicant sought leave to appeal against the severity of his sentences on four grounds, including that the sentencing judge failed to give proper weight to his mental illness, failed to apply the totality principle correctly, failed to consider that one offence could have been dealt with in the Local Court, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge failed to give proper weight to the applicant's mental illness and intellectual disability in determining sentence
  • Whether the sentencing judge failed to apply the totality principle when accumulating sentences
  • Whether the sentencing judge failed to consider that the steal from dwelling offence was one that could have been dealt with in the Local Court, attracting a lower maximum penalty
  • Whether the overall sentence was manifestly excessive

Decision

Ground 1: Mental illness
The Court of Criminal Appeal found no error in the way the sentencing judge took into account the applicant's mental condition. The sentencing judge had acknowledged that the applicant's intellectual disability and brain damage were relevant, including their effect on moral culpability and the weight to be given to general deterrence. The Court confirmed the principles from R v Hemsley that mental illness may reduce moral culpability, may render general deterrence less relevant, and may make imprisonment bear more heavily on an offender. However, a countervailing consideration is the danger the offender presents to the community. The sentencing judge had appropriately balanced those considerations, and no error was established on this ground.

Grounds 2 and 3: Totality and the steal from dwelling offence
The Court found that the sentencing judge had erred in failing to consider that the steal from dwelling offence could have been prosecuted in the Local Court, where the maximum sentence would have been two years rather than the ten-year maximum available in the District Court. The Court confirmed the principle that where an offence is capable of being dealt with in the Local Court, this is a relevant sentencing consideration. The sentencing judge's failure to address this, combined with a broader failure to apply the totality principle properly when accumulating sentences, amounted to a miscarriage of the sentencing discretion.

Ground 4: Manifest excess
Because errors were established on grounds 2 and 3, the Court approached the question of manifest excess by resentencing the applicant. The primary sentence for the most serious count (the sexual assault) remained at 5 years. However, the sentence for the steal from dwelling offence was reduced to a fixed term of 12 months, and the extent of accumulation across the sentences was reduced. The overall effective sentence was reduced from 8 years and 10 months to 6 years and 11 months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Freeman DCJ on 19 August 2010 quashed
  • In lieu thereof, the applicant was sentenced as follows:
  • Count 1 (break and enter): 2 years and 6 months, commencing 4 February 2009, non-parole period of 22 months
  • Count 2 (intimidation, including Form 1 items): 1 year and 8 months, commencing 4 August 2010, non-parole period of 1 year and 3 months
  • Count 3 (steal from dwelling, including Form 1 item): fixed term of 12 months, commencing 4 April 2012
  • Count 4 (sexual assault): 5 years, commencing 4 January 2011, non-parole period of 1 year and 8 months
  • Section 166 matters: 6 months fixed term each, commencing 4 February 2009
  • Overall effective sentence: 6 years and 11 months, commencing 4 February 2009, with an effective non-parole period of 4 years and 2 months expiring 3 April 2013

Key Takeaways

  • The Court of Criminal Appeal confirmed the four-part framework from R v Hemsley for mental illness in sentencing: it may reduce moral culpability, moderate general deterrence, cause custody to weigh more heavily, but may also engage countervailing community protection considerations.
  • No error arises merely from a sentencing judge tempering leniency where an offender with a longstanding disability has only recently demonstrated dangerous sexual behaviour, provided the judge has engaged with the relevant principles.
  • Where an offence could have been dealt with summarily in the Local Court, a sentencing judge in the District Court must take this into account as a relevant factor; failure to do so can constitute an error warranting resentencing on appeal.
  • A failure to properly apply the totality principle when accumulating multiple sentences constitutes a miscarriage of the sentencing discretion, even where individual sentences are not themselves shown to be excessive.
  • In resentencing, the Court of Criminal Appeal reduced the steal from dwelling sentence substantially, from 2 years and 6 months to a fixed term of 12 months, and restructured the accumulation so that the overall term fell from 8 years and 10 months to 6 years and 11 months.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), including s 166

Cases
- R v Hemsley [2004] NSWCCA 228
- R v Engert (1995) 84 A Crim R 67
- Bonwick v R [2010] NSWCCA 177
- Courtney v R [2007] NSWCCA 195; (2007) 172 A Crim R 371
- Dagdanasar v R [2010] NSWCCA 310
- McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
- R v Bus (NSWCCA, 8 March 1996, unreported)
- R v Champion (1992) 64 A Crim R 244
- R v Clements (1993) 68 A Crim R 167
- R v Depoma [2003] NSWCCA 382
- R v El Masri [2005] NSWCCA 167
- R v Palmer [2005] NSWCCA 349
- R v Rossi (CCA (SA), 20 April 1988, unreported)
- R v Wheeler [2000] NSWCCA 34
- R v XX [2009] NSWCCA 115
- Strickland v R; O'Connor v R [2011] NSWCCA 166
- Zaharos v R [2008] NSWCCA 336