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Court of Criminal Appeal 4 July 2012

ROSS v R

[2012] NSWCCA 161

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE PAROLE PERIOD

Citation: Ross v R [2012] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 4 July 2012
Judges: McClellan CJ at CL, Price J, Button J

Background

The appellant pleaded guilty in the District Court to recklessly inflicting grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900, following an altercation with a neighbour over a kitten and a dog. During the dispute, the appellant struck the victim on the back with a metre-long piece of wood. The victim suffered serious internal injuries, spent approximately a month in hospital, and had his spleen removed, resulting in permanent health consequences.

After applying a 10 per cent discount for the guilty plea, the sentencing judge imposed a total term of 4 years 6 months, comprising a non-parole period of 3 years 4 months and a balance of term of 1 year 2 months. The offence carries a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years.

The appellant sought leave to appeal on the basis that the sentencing judge had erred in her approach to the standard non-parole period, arguing that this produced a sentence that was not warranted in law.

  • Whether the sentencing judge erred by following the approach to standard non-parole periods set out in R v Way [2004] NSWCCA 131, which the High Court subsequently disapproved in Muldrock v The Queen [2011] HCA 39
  • Whether the sentencing judge placed excessive weight on the standard non-parole period, resulting in a sentence that was not warranted in law
  • Whether, if error was established, a different sentence should have been imposed under s 6(3) of the Criminal Appeal Act 1912

Decision

The Court found that the sentencing judge's remarks on sentence reflected the Way approach, which required the sentencing court to assess whether there were reasons to depart from the standard non-parole period and to determine whether the offence fell within the mid-range of objective seriousness. The High Court in Muldrock had rejected that approach, holding that the court is not required to commence sentencing by asking whether reasons exist for not imposing the standard non-parole period. The Crown conceded that the sentencing judge's remarks did not comply with Muldrock.

Price J, with whom McClellan CJ at CL and Button J agreed, acknowledged that an error of this kind does not automatically warrant appellate intervention. The Court must consider whether some other sentence was warranted in law and should have been passed, consistent with s 6(3) of the Criminal Appeal Act 1912. The Court found that the seriousness of the injuries and the manner in which they were inflicted did not justify an undiscounted starting point of 5 years imprisonment.

Critically, the sentencing judge had neither referred to the standard non-parole period as a guideline or yardstick, nor acknowledged that it did not directly apply given the guilty plea. Price J concluded that the sentencing judge had placed too much significance on the standard non-parole period, producing a sentence that was not warranted in law. Leave to appeal was granted and the appellant was re-sentenced to a total term of 3 years 8 months, consisting of a non-parole period of 2 years 9 months and a balance of term of 11 months, with no special circumstances found.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed in the District Court quashed
  • Appellant re-sentenced to a non-parole period of 2 years 9 months commencing 26 September 2010 and expiring 25 June 2013, with a balance of term of 11 months commencing 26 June 2013 and expiring 25 May 2014
  • Earliest eligible parole date: 25 June 2013

Key Takeaways

  • Following Muldrock v The Queen, a sentencing court is not required to commence by asking whether reasons exist for departing from the standard non-parole period, nor to assess whether an offence falls within the mid-range of objective seriousness as a threshold question.
  • An error in applying the pre-Muldrock framework from R v Way does not automatically justify appellate intervention. The Court of Criminal Appeal must still determine whether a different sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.
  • Where a sentencing judge fails to treat the standard non-parole period as merely a guideline or yardstick, and does not acknowledge that the period does not directly apply because the offender pleaded guilty, that omission may indicate the standard non-parole period was given excessive weight.
  • Judicial Commission sentencing statistics were placed before the Court and noted as useful contextual material, though the Court confirmed that each case must ultimately be determined on its own facts and that no single correct sentence exists: Pearce v R [1998] HCA 57.
  • The non-parole period imposed on re-sentencing (2 years 9 months) was substantially shorter than the original (3 years 4 months), reflecting the Court's view that the objective seriousness and subjective features of the case did not support the original starting point.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Butler v R [2012] NSWCCA 23
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
- R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94
- R v Lao [2003] NSWCCA 315
- R v Thawer [2009] NSWCCA 158