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41
Court of Criminal Appeal 21 December 2012

Devaney v R

[2012] NSWCCA 285

Assault & violenceFirearms & weaponsDomestic & family violence
CRIMINAL LAW SENTENCING SHOOTING WITH INTENT TO MURDER MENTAL ILLNESS EFFECT OF STANDARD NON PAROLE PERIOD ON SENTENCING

Citation: Devaney v R [2012] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 21 December 2012
Judges: Allsop P at [1]; Price J at [101]; Campbell J at [102]

Background

The appellant pleaded guilty in the District Court to four counts arising from events on 8 May 2008. He entered a casino gym where his ex-girlfriend was working and shot her twice in the abdomen with a loaded .45 calibre pistol. The victim's injuries were life-threatening, though she ultimately recovered. When apprehended nearby, the appellant was carrying three loaded firearms, a knife, and police identity paraphernalia. His backpack contained additional ammunition, disguises, and access cards for the gym.

The offending was extensively premeditated. The appellant had worn a fake moustache and beard, arranged a waiting taxi, and gathered multiple weapons and significant quantities of ammunition before attending the casino. He had a history of stalking, assaulting, and intimidating his ex-girlfriend, and an apprehended violence order (AVO) had been granted in her favour.

The District Court sentenced the appellant to a total non-parole period of 11 years and 7 months, with the principal sentence on the shooting count being 14 years imprisonment with a 10-year-and-one-month non-parole period. The appellant sought leave to appeal, arguing primarily that the sentence was manifestly excessive and that the sentencing judge had misapplied the standard non-parole period provisions and inadequately weighed his mental illness.

  • Whether the sentencing judge erred in her treatment of the standard non-parole period (10 years) for shooting with intent to murder under s 29 of the Crimes Act 1900 (NSW), following the High Court's clarification of the standard non-parole period regime in Muldrock v The Queen [2011] HCA 39
  • Whether the sentencing judge gave adequate weight to the appellant's mental illness, including the effect of that illness on his moral culpability and on considerations of general and specific deterrence
  • Whether the sentence imposed on Count 1 (shooting with intent to murder) was manifestly excessive when measured against the overall circumstances of the offending and the offender

Decision

Allsop P (with Price J and Campbell J agreeing) granted leave to appeal but dismissed the appeal, finding no error in the overall sentence.

On the standard non-parole period, the Court acknowledged that Muldrock had clarified that the standard non-parole period is a legislative guideline and one of two fixed points (alongside the maximum penalty) to be considered in sentencing, rather than a starting point or arithmetical formula. The Court examined whether any departure from the sentencing judge's approach, even if nominally inconsistent with Muldrock, produced a result that was unjust or warranted appellate intervention. The President ultimately found that even applying the correct Muldrock approach, the resulting sentence fell within the range appropriate to the objective seriousness of the offending and the full circumstances of the offender.

On mental illness, the sentencing judge had carefully canvassed extensive psychiatric evidence. She accepted that the appellant suffered from a recognised mental illness, which reduced his moral culpability to some degree and diminished the relevance of general deterrence. However, she also found that the appellant had committed serious violent and firearm offences prior to any diagnosed mental illness, that he retained a continuing danger to the community, and that specific deterrence remained a legitimate sentencing consideration. The Court of Criminal Appeal found this balancing exercise was conducted without error.

The Court was not persuaded that the sentence was manifestly excessive. The offending was extremely grave: it involved a premeditated, near-fatal shooting in a public place, with multiple loaded firearms, extensive planning, and a backdrop of obsessive and violent conduct toward the victim over years. Those factors, together with the appellant's prior record, justified a substantial sentence notwithstanding the mitigating effect of mental illness and the utilitarian value of the guilty pleas (to which a 15 per cent discount had been applied).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Following Muldrock v The Queen, the standard non-parole period for an offence operates as a legislative guideline and one of two fixed reference points, not a starting point for arithmetical calculation; the Court of Criminal Appeal confirmed this approach applies to sentences for shooting with intent to murder under s 29 of the Crimes Act 1900 (NSW).
  • Mental illness may reduce an offender's moral culpability and diminish the weight given to general deterrence in sentencing, but it does not automatically produce a lenient outcome where the offender remains a continuing danger to the community or where serious violent offending preceded the illness.
  • A sentencing court is entitled to look beyond periods of diagnosed mental illness when assessing an offender's dangerousness, including offending conducted when the offender was not shown to be mentally unwell.
  • Extensive premeditation, the use of multiple loaded firearms, the commission of the offence in a public place creating risk to bystanders, and a history of violent and intimidatory conduct toward the victim were treated as significant factors weighing toward a substantial sentence.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that appellate courts will not intervene unless error in the sentencing exercise is established or the sentence is shown to be manifestly excessive, consistent with the principles in House v The King [1936] HCA 40 and Markarian v The Queen [2005] HCA 25.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23A, 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44
- Criminal Appeal Act 1912 (NSW), s 5
- Firearms Act 1996 (NSW), ss 7, 7A
- Judicial Officers Act 1986 (NSW), s 8

Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- House v The King [1936] HCA 40; 55 CLR 499
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Carlton v R [2008] NSWCCA 244; 189 A Crim R 332
- Leach v R [2008] NSWCCA 73; 183 A Crim R 1
- Channon v R (1978) 20 ALR 1
- HG v The Queen [1999] HCA 2; 197 CLR 414
- Beldon v R [2012] NSWCCA 194
- Bolt v R [2012] NSWCCA 50
- Butler v R [2012] NSWCCA 23
- Butters v R [2010] NSWCCA 1
- Courtney v R [2007] NSWCCA 195; 172 A Crim R 371
- Du Randt v R [2008] NSWCCA 121
- Pfizner v R [2010] NSWCCA 314
- Reberger v R [2011] NSWCCA 132
- Phelan v R (1993) 66 A Crim R 446