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Court of Criminal Appeal 31 October 2014

Craig v R

[2014] NSWCCA 243

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE GUILTY PLEAS

Citation: Craig v R [2014] NSWCCA 243
Court: Court of Criminal Appeal, NSW
Date: 31 October 2014
Judge(s): Leeming JA; Fullerton J; Bellew J

Background

The appellant pleaded guilty in the District Court to two counts of threatening injury to a person with the intention of preventing his own lawful apprehension, contrary to s 33B(1)(b) of the Crimes Act 1900 (NSW). The persons threatened were his own children, aged three years and seventeen months respectively, who were in the lawful custody of their maternal grandmother under a Family Court order.

Police located the appellant in bushland after he had taken the children from their grandmother's home at night. He held bladed scissors to the children's throats over a sustained period, demanding police keep their distance and stating he would harm the children if officers approached. The standoff ended when he agreed to surrender the children and submit to arrest.

The District Court imposed an aggregate sentence of 6 years and 9 months imprisonment, with a non-parole period of 4 years and 3 months. The appellant sought leave to appeal on the ground that the aggregate sentence was manifestly excessive.

  • Whether the aggregate sentence of 6 years and 9 months was manifestly excessive for two counts of threatening injury with intent to prevent lawful apprehension, where the victims were young children
  • Whether the sentencing judge erroneously inflated the objective seriousness of the principal offences by treating the inclosed lands trespass as sufficiently serious to warrant a separate term of imprisonment
  • Whether the sentencing judge failed to maintain the statutory distinction between the actual use of harm under s 33B(1)(a) and the threatened use of harm under s 33B(1)(b)

Decision

The Court rejected the argument that the sentencing judge had double-counted the trespass element by imposing a separate (if erroneous) term for the Inclosed Lands Protection Act offence and then also weighing the unlawful entry against the appellant when assessing the s 33B offences. Fullerton J reasoned that, if anything, the imposition of a discrete penalty for the trespass indicated the judge had excluded that fact from her assessment of the more serious offending, not incorporated it twice.

The submission that the children were not at any real risk of harm was rejected as contrary to the evidence and legally unsound. Although the charges were brought under the threatened-injury limb of s 33B rather than the actual-use limb, the sentencing judge was entitled to take the risk of actual harm into account when assessing objective seriousness. The sustained application of bladed scissors to the children's throats, combined with verbal and physical aggression, properly supported a finding of grave offending.

The Court noted that the sentencing judge had carefully addressed the appellant's significant mental health history, his prior criminal record (including a juvenile conviction for murder and kidnapping in circumstances bearing disturbing similarities to the present offending), and his guarded but not hopeless prospects of rehabilitation. The judge moderated the weight given to general deterrence because of the appellant's mental health, while still reflecting personal deterrence, community protection, and rehabilitation in the sentence. No challenge was mounted to any of those findings on appeal.

The Court of Criminal Appeal was not persuaded that the sentencing discretion had miscarried or that the aggregate sentence fell outside the legitimate range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge who imposes a discrete penalty for a lesser offence arising from the same factual occasion may, on one reasonable view, thereby exclude that circumstance from the assessment of the more serious related offence, rather than engage in impermissible double-counting.
  • Under s 33B(1)(b) of the Crimes Act 1900 (NSW), a charge of threatening injury to prevent lawful apprehension does not require proof of actual harm; however, the sentencing court may still consider the real risk of harm to the victims when determining the objective gravity of the offending.
  • Prior criminal history may legitimately inform the assessment of future dangerousness and the degree of leniency available to a defendant, consistent with Veen v R (No 2) [1988] HCA 14, provided it does not inflate the sentence beyond what the current offending warrants.
  • Where an offender's mental health diminishes moral culpability, a reduction in the weight given to general deterrence is appropriate; this does not preclude the court from also reflecting personal deterrence and community protection in the sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence representing approximately 56 per cent of the maximum penalty for two counts of s 33B(1)(b) offending, where young children were threatened with scissors at their throats over a sustained period, was within the legitimate sentencing range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A(2)(g), 43, 44(2)
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)(b)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 55(1)

Cases:
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465