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Court of Criminal Appeal 9 September 2011

Dwayne William SMITH v R

[2011] NSWCCA 209

Assault & violenceTheft & property
CRIMINAL LAW COMMON ASSAULT ON FORM 1 ADEQUACY OF DISCOUNT FOR PLEA OF GUILTY SENTENCE REDUCED

Citation: [2011] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 9 September 2011
Judges: Basten JA, RS Hulme J, Hidden J (all agreeing)

Background

The applicant pleaded guilty in the District Court to break and enter a dwelling house with intent to commit a serious indictable offence in circumstances of special aggravation, an offence under s 113(3) of the Crimes Act 1900 carrying a maximum of 20 years imprisonment. A common assault charge was taken into account on a Form 1. The offence arose after the applicant learned that a co-worker of his mother had made a series of grossly offensive late-night phone calls to her, including a reference to her deceased husband.

Armed with a length of timber, the applicant went to the caller's home, kicked in the front door, and beat a person he found sleeping in a bedroom, not realising it was the caller's brother, who had cerebral palsy. He then seized the intended target by the throat and threatened him. The applicant made full admissions when interviewed by police later that day.

In the District Court, the sentencing judge assessed the offence as falling at the mid-range of objective seriousness, adopted a starting point of 8 years, applied a 15% discount for the guilty plea, and imposed a head sentence of approximately 6 years and 9 months with a non-parole period of approximately 5 years. The applicant sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether the sentencing judge erred in placing the offence at the mid-range of objective seriousness
  • Whether the starting point of 8 years was excessive in light of the applicant's circumstances, including his motive and prospects of rehabilitation
  • Whether the 15% discount for the plea of guilty was adequate
  • Whether the sentencing judge should have found special circumstances justifying a departure from the standard ratio between the non-parole period and the head sentence

Decision

The Court of Criminal Appeal, through Hidden J (with Basten JA and RS Hulme J agreeing), concluded that a starting point of 8 years was unduly harsh given the totality of the circumstances. The applicant had no history of violence and demonstrated reasonable prospects of rehabilitation. Although the motive was entirely misguided and the offence was planned rather than spontaneous, those considerations did not justify such a high starting point for an offence at the lower end of the spectrum of conduct covered by the specially aggravated provision.

The Court noted that s 113(3) covers a wide range of conduct, from offending involving mere possession of a dangerous weapon through to cases of serious wounding or grievous bodily harm. Placing this offending within the mid-range of that broad category, and then selecting a starting point of 8 years, produced a result the Crown prosecutor at the appeal acknowledged was "stern." The Court assessed the appropriate starting point as 5 years imprisonment.

Applying the same 15% discount for the guilty plea, the Court arrived at a head sentence of 4 years and 3 months. The Court declined to find special circumstances and applied the statutory ratio, rounding the resulting non-parole period to 3 years.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant sentenced to a non-parole period of 3 years commencing 17 December 2009 and expiring 16 December 2012, with a balance of term of 1 year and 3 months commencing 17 December 2012 and expiring 16 March 2014

Key Takeaways

  • The Court of Criminal Appeal confirmed that s 113(3) of the Crimes Act 1900 encompasses a very wide range of conduct, and a sentencing court must calibrate its starting point carefully within that range rather than defaulting to a mid-range figure without close analysis.
  • A misguided but understandable motive, such as retaliation for offensive treatment of a family member, does not excuse offending but is a relevant consideration in assessing the overall gravity of the conduct and the appropriate sentence.
  • Where an offender has no history of violence and demonstrates reasonable rehabilitation prospects, a starting point that does not adequately reflect those matters may be found manifestly excessive on appeal.
  • The District Court's failure to round off the head sentence after applying the guilty plea discount produced an unusual figure; the Court of Criminal Appeal observed there was no obligation to approach sentencing in a precisely mathematical manner, citing Bou-Antoun v Regina [2008] NSWCCA 1.
  • No special circumstances were found on the facts, and the standard statutory ratio between the non-parole period and head sentence was applied without adjustment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 105A, 113(1), 113(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A

Cases:
- Bou-Antoun v Regina [2008] NSWCCA 1
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Newman and Simpson [2004] NSWCCA 102; 145 A Crim R 361
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Swan [2006] NSWCCA 47
- R v Craddock [2004] VSC 397