AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 14 July 2014

McDonald v R

[2014] NSWCCA 127

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: McDonald v R [2014] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 14 July 2014
Judge(s): Hoeben CJ at CL, Price J, Fullerton J (Hoeben CJ at CL and Price J agreeing with Fullerton J)

Background

The applicant pleaded guilty to one count of specially aggravated break and enter and commit a serious indictable offence under s 112(3) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. The offending arose from a violent home invasion in which the applicant and a co-offender forced entry into the home of a man she had briefly dated, after accusing him of infidelity. During the invasion, the applicant repeatedly urged her co-offender to stab the male victim, threatened both victims with weapons, and stabbed the female victim in the shoulder blade with scissors.

At the time of the offending, the applicant was on parole for armed robbery. The sentencing judge in the District Court imposed a sentence of 6 years and 9 months (after a 25 per cent discount for the early guilty plea), with a non-parole period of 3 years and 3 months reflecting special circumstances arising from partial accumulation on the earlier sentence.

The applicant sought leave to appeal out of time, having filed her notice of intention to appeal 16 days late. A further delay followed due to difficulties obtaining transcripts and legal aid funding for a psychologist's report. The Crown accepted there was an adequate explanation for the delay but submitted the application lacked merit.

  • Whether the sentencing judge made a material error of fact in recording the applicant's evidence about sexual assaults, and whether that error affected the sentencing outcome.
  • Whether a recently obtained psychologist's report constituted admissible fresh or new evidence on the sentence appeal.
  • Whether the psychologist who prepared the report was qualified to diagnose the psychiatric conditions identified in it.
  • Whether the application for leave to appeal out of time should be granted given the overall merits of the grounds.

Decision

On the first ground, the applicant argued that the sentencing judge incorrectly recorded her as having said she was sexually assaulted on only one occasion, when she had in fact given evidence of two incidents. The Court was not persuaded this error, even if established, affected the sentencing outcome in any material way.

On the second ground, the applicant sought to tender a psychologist's report dated 1 July 2014 purporting to diagnose her with a serious psychiatric disorder, including post-traumatic stress disorder, said to have existed at the time of offending and sentencing. The Court rejected the tender, finding that the application fundamentally misunderstood the principles governing fresh or new evidence on sentence appeals. The report was not admissible as fresh or new evidence; to the extent any part of it might have been admissible as opinion evidence, that would only be relevant on re-sentencing if error were otherwise established, which it was not.

The Court also raised significant doubts about the psychologist's qualifications to diagnose the conditions identified. No curriculum vitae was attached to the 2014 report, and the curriculum vitae attached to the earlier draft report actually belonged to a different practitioner. The Court noted that neither report should have purported to arrive at DSM-IV-TR diagnoses in those circumstances.

Because neither ground was made out, the Court declined to exercise its discretion to grant the extension of time, accepting the Crown's submission that the appeal was without merit.

Orders Made

  • Application for leave to appeal out of time refused.

Key Takeaways

  • A psychologist's report obtained after sentencing will not satisfy the requirements for fresh or new evidence on a sentence appeal unless it properly meets the established test; a report commissioned to challenge findings already made by the sentencing judge will not meet that threshold.
  • Where opinion evidence from a psychologist or psychiatrist is tendered, the expert's qualifications to make specific clinical diagnoses (such as those under DSM-IV-TR criteria) must be clearly established, and attaching another practitioner's curriculum vitae does not satisfy that requirement.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that even an accepted explanation for delay in filing will not lead to an extension of time being granted if the underlying appeal grounds lack merit.
  • No error was established in the sentencing judge's finding that the applicant's motivation was revenge for perceived infidelity rather than retribution arising from an alleged sexual assault, particularly where the applicant's claim about the assault was not led in evidence on appeal.
  • The sentencing court's assessment of objective seriousness was upheld across multiple aggravating features, including the applicant's role as instigator, her continued offending after the co-offender withdrew, and the deliberate infliction of physical violence on both victims during a home invasion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 35A
- Criminal Appeal Act 1912 (NSW), s 10(1)(a)

Cases:
- Miles v R [2014] NSWCCA 72
- R v Speechley [2012] NSWCCA 130