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Court of Criminal Appeal 5 May 2014

Grant v R

[2014] NSWCCA 67

HomicideDrugs
CRIMINAL LAW MANSLAUGHTER APPEAL AGAINST SENTENCE

Citation: Grant v R [2014] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 5 May 2014
Judges: Leeming JA; Adams J; Hall J

Background

The appellant had shot and killed a man who, along with a companion, had entered his rural property in northern New South Wales apparently intending to steal cannabis. The appellant was cultivating a large commercial quantity of cannabis plants on the property at the time. He pleaded guilty to manslaughter, unlawfully disposing of the body, cultivation of cannabis, and supply of a prohibited drug.

On 15 September 2010, the sentencing judge imposed 12 years imprisonment with a non-parole period of 8 years and 6 months for the manslaughter offence. The appellant subsequently obtained new legal representation and sought leave to appeal against that sentence.

The appeal raised four proposed grounds, centring on alleged factual errors by the sentencing judge, alleged failure by the former solicitor to obtain psychological and psychiatric reports, alleged wrongful admission of intent, and delay in bringing the application.

  • Whether the sentencing judge contravened the rule in R v De Simoni by making factual findings that effectively punished the appellant for a more serious offence than that to which he pleaded guilty
  • Whether the former solicitor's failure to obtain psychological and psychiatric reports constituted a miscarriage of justice
  • Whether the former solicitor's admission, on the appellant's behalf, that he had intended to kill the deceased (rather than merely cause grievous bodily harm) was an admission that should not have been made, and whether it constituted a miscarriage of justice
  • Whether the substantial delay in filing the application for leave to appeal precluded relief

Decision

The Court refused leave on three of the four proposed grounds. It was not satisfied that the sentencing judge had impermissibly used findings of fact to punish the appellant for a more serious offence, nor that the absence of psychological or psychiatric reports caused a miscarriage of justice. The delay in filing, while noted as relevant, did not alone defeat the application where a genuine ground of appeal had been established.

The Court allowed the appeal on the second proposed ground. The former solicitor had expressly agreed, at the sentencing hearing, to the Crown Case Statement and had further admitted that the appellant intended to kill the deceased. The appellant's own account, by contrast, described firing in self-defence because he feared for his life, which was consistent only with an intent to cause grievous bodily harm at most, not a specific intent to kill. The Court found that the admission of intent to kill was not one that should have been made, and that it materially affected the sentencing outcome.

The Court applied the principle, drawn from cases including Nudd v The Queen and Lawless v The Queen, that a miscarriage of justice can result from legal representatives making admissions of fact that are unsupported by or contrary to the client's instructions. The unauthorised admission here had exposed the appellant to a more serious factual finding at sentencing, and that error warranted intervention.

On resentencing, the Court took into account the seriousness of the manslaughter, the appellant's background as a large-scale cannabis cultivator, the denunciatory and general deterrent purposes of sentencing, and his offer to plead guilty to manslaughter at an early stage. It reduced the sentence to 10 years imprisonment, with a non-parole period of 7 years and 6 months.

Orders Made

  • Leave to appeal granted on Ground 2 (the wrongful admission of intent to kill)
  • Appeal allowed; manslaughter sentence of 12 years imprisonment imposed on 15 September 2010 set aside
  • Appellant resentenced to 10 years imprisonment for manslaughter, commencing 13 February 2011
  • Non-parole period fixed at 7 years and 6 months, commencing 13 February 2011 and expiring 12 August 2018
  • Balance of term: 2 years and 6 months, expiring 12 February 2021
  • Earliest eligible release date: 12 August 2018

Key Takeaways

  • A solicitor's admission at a sentencing hearing that the offender intended to kill the deceased, where that admission was unsupported by the client's instructions and contradicted by the client's own account, can constitute a miscarriage of justice sufficient to warrant resentencing on appeal.
  • The Court of Criminal Appeal confirmed that the principle in R v De Simoni prohibits a sentencing court from making factual findings that effectively punish an offender for a more serious offence than that to which they pleaded guilty, though no such error was found on the facts here.
  • Where a legal representative makes a factual concession that goes beyond what the client's instructions support, the court will examine whether that concession materially affected the sentence imposed and, if so, whether justice requires intervention.
  • Significant delay in filing an application for leave to appeal does not automatically bar relief, but remains a relevant consideration, particularly where the delay is unexplained or prolonged.
  • In resentencing, the Court weighed aggravating factors (serious commercial cannabis cultivation, disposal of the body, acquisition of a firearm) against mitigating factors (early offer to plead guilty to manslaughter, age, low likelihood of reoffending, and medical circumstances).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 421
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- R v De Simoni (implicit throughout; central to Ground 1)
- Nudd v The Queen [2006] HCA 9; 162 A Crim R 301
- Lawless v The Queen (1979) 142 CLR 659
- Ali v The Queen [2005] HCA 8; 214 ALR 1
- Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
- Magaming v The Queen [2013] HCA 40; 87 ALJR 1060
- Dinsdale v R (2000) 202 CLR 321
- Douar v R [2005] NSWCCA 154; 159 A Crim R 154
- Apps v R [2006] NSWCCA 290
- Crawford v R [2013] NSWCCA 269
- Fisher v R [2008] NSWCCA 129
- Khoury v R [2011] NSWCCA 118
- Matthews v R [2013] NSWCCA 187
- Mortada v R [2014] NSWCCA 36
- Lane v R [2013] NSWCCA 317