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Court of Criminal Appeal 7 April 2014

LEUNG, Simon Yuk v R

[2014] NSWCCA 44

Assault & violenceFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL APPLICATION FOR LEAVE LEAVE GRANTED APPEAL ALLOWED SENTENCE QUASHED AND SET ASIDE

Citation: LEUNG, Simon Yuk v R [2014] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 7 April 2014
Judge(s): Hoeben CJ at CL, Adams J, Hall J (judgment delivered by Hall J)

Background

The applicant pleaded guilty in the District Court to two offences arising from a street altercation in Sydney in November 2012. The incident began when the victim, a tourist bus driver, asked the applicant to move his car from a no-stopping zone so the bus could depart. The applicant responded by exiting his vehicle armed with a metal extendible baton, then kicked, punched, and struck the victim repeatedly with the baton, causing a four-centimetre scalp laceration requiring stitches and facial bruising.

The two offences were reckless wounding under s 35(4) of the Crimes Act 1900 and possession of a prohibited weapon under s 7(1) of the Weapons Prohibition Act 1998. A further common assault offence was taken into account on a Form 1 (a procedural mechanism that allows a court to note additional related offences when sentencing for a principal charge). At sentencing, the District Court also received evidence that the applicant had been diagnosed with moderate Asperger's Syndrome, an autism spectrum disorder.

The District Court imposed a fixed term of nine months' imprisonment for the weapons offence and a further sentence of 15 months' non-parole period plus a ten-month balance of term for the reckless wounding, resulting in a total effective non-parole period of 18 months. The applicant sought leave to appeal, arguing that the sentences were excessive and that the sentencing judge had made several errors.

  • Whether the sentencing judge failed to comply with the accumulation provisions under ss 45(1) and (2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentence for the prohibited weapons offence was manifestly excessive
  • Whether the sentencing judge failed to apply the principles from Pearce v R (1998) 194 CLR 610 by not recognising the overlap in criminality between the two offences
  • Whether the sentencing judge erred in his treatment of the applicant's psychiatric condition (Asperger's Syndrome) when assessing objective seriousness and the impact of custody
  • Whether the sentencing judge failed to apply the stated 25% plea discount
  • Whether the sentencing judge erred in concluding that full-time custody was the only appropriate sentencing option for the weapons offence

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding error in the sentencing of the prohibited weapons offence in particular. Hall J (with whom Hoeben CJ at CL and Adams J agreed) concluded that the sentencing judge erred in failing adequately to account for the applicant's Asperger's Syndrome when assessing both the objective seriousness of the offending and the particular hardship that imprisonment would impose on someone with that condition.

The Court also found error in the sentencing judge's treatment of the relationship between the two offences. The baton was the very instrument used to commit the reckless wounding, and the criminality of possessing it was substantially encompassed by the facts of the wounding offence. The sentencing judge was required, under the principles in Pearce v R, to take that overlap into account when imposing cumulative sentences, and the Court found this had not been done adequately.

A further error was the conclusion that full-time imprisonment was the only available sentencing option for the weapons offence. Having regard to the applicant's psychiatric condition, the degree of overlap in criminality, and the overall sentencing exercise, the Court of Criminal Appeal concluded that a non-custodial disposition for the weapons count was appropriate.

On re-sentencing, the Court found special circumstances existed in relation to the reckless wounding offence, given the applicant's need for appropriate psychiatric support in the community upon release, justifying a departure from the standard non-parole period ratio.

Orders Made

  • Leave to appeal against the sentences imposed by the District Court on 26 July 2013 granted
  • Appeal allowed
  • The applicant re-sentenced as follows:
  • Reckless wounding (s 35(4) Crimes Act 1900): term of imprisonment of 12 months, comprising a non-parole period of 8 months and 13 days (commencing 26 July 2013, expiring 7 April 2014) with a balance of term of 3 months and 18 days (commencing 8 April 2014, expiring 25 July 2014)
  • Possess prohibited weapon (s 7(1) Weapons Prohibition Act 1998): directed to enter into a good behaviour bond for 1 year from 7 April 2014
  • The applicant became eligible for parole on 7 April 2014

Key Takeaways

  • A sentencing court must treat a defendant's psychiatric condition as a relevant factor in two distinct ways: when assessing the objective seriousness of the offending and when considering the additional hardship that custody imposes on someone with that condition. Failure to do so on either count constitutes sentencing error.

  • Under the Pearce v R principles, where the facts of one offence substantially encompass the criminality of a second offence, a court imposing cumulative sentences must give meaningful effect to that overlap. In this case, the prohibited weapon was the instrument of the wounding, making the criminality of the possession charge largely subsumed by the principal offence.

  • The Court of Criminal Appeal confirmed that a finding of special circumstances (justifying a longer parole period relative to the non-parole period) can properly be grounded in a defendant's need for psychiatric treatment and supervision in the community after release.

  • Concluding that full-time imprisonment is the only appropriate option for an offence requires proper engagement with all relevant sentencing factors, including the defendant's mental health. Where that engagement is absent, the conclusion may itself constitute error.

  • Where a standard non-parole period applies to an offence under a relevant statutory scheme, a court must fix both a non-parole period and a parole period rather than a fixed term, consistent with the approach confirmed in SGJ v R; KU v R [2008] NSWCCA 258.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Weapons Prohibition Act 1998 (NSW), s 7(1) (possession of prohibited weapon)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 45(1), 45(2)

Cases
- Pearce v R (1998) 194 CLR 610
- SGJ v R; KU v R [2009] NSWCCA 258
- R v George (2004) 149 A Crim R 38
- R v Hemsley [2004] NSWCCA 228
- R v Israil [2002] NSWCCA 255
- R v Zamagias [2002] NSWCCA 17