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Court of Criminal Appeal 8 April 2011

R v Darren MUMBERSON

[2011] NSWCCA 54

Assault & violence
CRIMINAL LAW SENTENCING CROWN APPEAL PAROLE PERIOD WHETHER SENTENCE MANIFESTLY INADEQUATE CROWN APPEAL ALLOWED.

Citation: R v Mumberson [2011] NSWCCA 54
Court: NSW Court of Criminal Appeal
Date: 8 April 2011
Judges: Hodgson JA; Adams J; Hall J

Background

The respondent pleaded guilty in the District Court to recklessly inflicting grievous bodily harm on his then-partner, contrary to s 35(2) of the Crimes Act 1900. The offence carries a maximum penalty of 10 years' imprisonment and a standard non-parole period of four years.

The facts were serious. Late at night, while the victim was driving the respondent home after collecting him from a hotel where he had been drinking heavily, the respondent twice grabbed the steering wheel and wrenched it, causing the vehicle to swerve violently and ultimately crash into a telegraph pole and a parked semi-trailer. The victim suffered two spinal fractures and underwent major surgical fusion of her cervical spine. She sustained lasting physical and psychological injuries.

The sentencing judge in the District Court imposed a sentence of one year and eight months' imprisonment but immediately suspended it under s 12 of the Crimes (Sentencing Procedure) Act 1999, requiring the respondent to enter a good behaviour bond. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending the sentence was manifestly inadequate.

  • Whether the sentencing judge gave insufficient regard to the standard non-parole period of four years for the offence
  • Whether the sentencing judge gave excessive weight to the respondent's subjective mitigating features
  • Whether the resulting sentence was manifestly inadequate
  • Whether the Court of Criminal Appeal should, in the exercise of its discretion, intervene despite the respondent having already served time on the good behaviour bond

Decision

The Court of Criminal Appeal, in reasons delivered by Hodgson JA (with Adams J and Hall J agreeing), found that the sentence was manifestly inadequate. The sentencing judge had not given sufficient weight to the seriousness of the offending. Although the respondent's favourable subjective circumstances were genuine, they did not justify a sentence as low as one year and eight months, and certainly did not justify suspension of the sentence entirely.

The Court confirmed that the standard non-parole period of four years operates as a legislative benchmark. A sentencing judge must engage with that benchmark and provide clear reasons for any substantial departure from it. While mitigating factors can justify some departure, the sentence imposed in this case fell so far below the benchmark that it could not be sustained.

Hodgson JA also noted that the 15 per cent discount applied for the guilty plea was over-generous, though that error alone would not have warranted appellate intervention. The more fundamental problem was the suspension of the sentence, which placed the outcome entirely outside the range of sentencing options reasonably open on these facts.

In re-exercising the sentencing discretion, the Court recognised that, because the respondent had already been subject to a good behaviour bond since October 2010, it was appropriate to impose a penalty substantially less than would have been appropriate at first instance. The mitigating factors collectively justified a finding of special circumstances, permitting the non-parole period to be reduced below the statutory ratio.

Orders Made

  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • The respondent sentenced to a non-parole period of 15 months' imprisonment commencing 8 October 2010 and expiring 7 January 2012, with a balance of term of one year expiring 7 January 2013.
  • The respondent to be released on parole on 7 January 2012.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a standard non-parole period functions as a legislative benchmark that a sentencing court must engage with meaningfully, particularly when imposing a sentence that departs substantially from it.
  • A sentence of one year and eight months, suspended entirely, fell outside the range of sentencing options reasonably available for an offence of recklessly inflicting grievous bodily harm involving a deliberate act causing serious spinal injuries to the victim.
  • Favourable subjective features, including good character, remorse, absence of prior relevant convictions, and prospects of rehabilitation, can justify some departure from the standard non-parole period benchmark but do not, without more, support suspension of a sentence for a serious offence of this kind.
  • Where the Crown succeeds on a sentence appeal and the respondent has already served time under the original order, the Court of Criminal Appeal may exercise its discretion to impose a substantially lesser sentence than would have been appropriate at first instance.
  • Upholding the Crown appeal, the Court backdated the sentence to the date of the original order so that time served on the good behaviour bond counted toward satisfaction of the new sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A, 47
- Criminal Appeal Act 1912 (NSW), ss 5D, 14A

Cases:
- R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528
- Carroll v The Queen [2009] HCA 13
- R v Cheh [2009] NSWCCA 134
- R v Chisari [2006] NSWCCA 19
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- R v Farrawell-Smith [2010] NSWCCA 144
- R v Foster [2001] NSWCCA 215; (2001) 33 MVR 565
- Hamilton v R (1993) 66 A Crim R 575
- House v The King (1936) 55 CLR 499
- R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18
- R v JW [2010] NSWCCA 49
- R v McEvoy [2010] NSWCCA 110
- Mulato v R [2006] NSWCCA 282
- R v Tory [2006] NSWCCA 18
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Zamagias [2002] NSWCCA 17