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Court of Criminal Appeal 27 May 2014

Convery v R

[2014] NSWCCA 93

Assault & violence
CRIMINAL APPEAL SENTENCE APPEAL

Citation: Convery v R [2014] NSWCCA 93
Court: Court of Criminal Appeal
Date: 27 May 2014
Judge(s): Simpson J, Adams J, McCallum J

Background

The appellant was a 22-year-old Aboriginal woman who pleaded guilty at the earliest opportunity to two offences arising from a violent incident near Redfern Police Station in the early hours of 1 April 2012. While heavily affected by alcohol and drugs and without her anti-psychotic medication, she stabbed a police officer with a syringe near the eye and punched her repeatedly, causing actual bodily harm. She also used an offensive weapon to commit an indictable offence.

The appellant had a severe personal history, including childhood exposure to petrol sniffing, cannabis, sexual abuse, family violence and neglect. She had been diagnosed with paranoid schizophrenia and her intellectual functioning placed her below the first percentile of her peers. She had been in custody continuously since her arrest on 1 April 2012.

In the District Court, the sentencing judge imposed a fixed term of two years for the weapons offence and a separate sentence for the assault on a police officer occasioning actual bodily harm under s 60(2) of the Crimes Act 1900. The appellant challenged the s 60(2) sentence on the ground that the judge had failed to apply a discount for the early guilty plea, and on the ground that both that sentence and the aggregate were manifestly excessive.

  • Whether the sentencing judge erred by failing to allow any discount for the guilty plea entered at the earliest opportunity, contrary to the principles established in R v Thomson; R v Houlton
  • Whether the s 60(2) sentence and the aggregate sentence were manifestly excessive

Decision

The Crown conceded that the first ground of appeal was made out. The sentencing judge's remarks on sentence made no reference to the guilty plea or to any discount. McCallum J found that the length of the head sentence, viewed against the starting point that could reasonably be inferred, revealed that the discount had either been miscalculated, not allowed at all, or overlooked entirely.

McCallum J considered that the proper course was to impose approximately the sentence that would have resulted had the sentencing judge applied a discount for the early plea from the appropriate starting point of five years and six months. That calculation produced a total individual term of four years and two months for the s 60(2) offence.

In structuring the re-sentence, the Court declined to simply preserve the ratio between the non-parole period and the balance of term in the original individual sentence. To do so would have eliminated any accumulation between the two sentences, which the original sentencing judge had clearly intended to preserve. The Court fixed a non-parole period of twenty months and a balance of term of thirty months, producing an aggregate non-parole period of two years and two months against a total aggregate term of four years and eight months.

Adams J added remarks on the difficulty of sentencing offenders with serious mental illness. His Honour observed that the appellant's longstanding schizophrenia, damaged intellect and childhood addiction made it unreasonable to treat her drug use as an entirely free choice, and noted that moral culpability, properly assessed, must drive the level of punishment. Adams J expressed the view that the appropriate outcome was one permitting release on parole as soon as practicable, subject to supervision.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed for the offence of assaulting a police officer occasioning actual bodily harm quashed.
  • In lieu: a term of imprisonment with a non-parole period of twenty months commencing 1 October 2012 and expiring 31 May 2014, and a balance of term of thirty months expiring 30 November 2016.

Key Takeaways

  • A sentencing judge's failure to refer to a guilty plea or any associated discount in remarks on sentence can, by itself, establish error where the resulting sentence is inconsistent with such a discount having been applied.
  • The Court of Criminal Appeal confirmed the principle from R v Thomson; R v Houlton that an offender who pleads guilty at the earliest opportunity is entitled to a meaningful discount, and silence on the issue in sentencing remarks will be scrutinised closely.
  • In re-sentencing, the Court of Criminal Appeal will consider the overall sentencing structure intended by the original judge, including any intended accumulation between sentences, rather than mechanically preserving the ratio of individual components.
  • Under s 54A of the Crimes (Sentencing Procedure) Act 1999, the offence of assaulting a police officer occasioning actual bodily harm carries a standard non-parole period of three years, which forms part of the sentencing calculus even where significant subjective matters bear on the exercise of the discretion.
  • Severe mental illness, intellectual impairment, and a history of childhood deprivation and addiction are capable of substantially reducing moral culpability, though they do not displace the need for punishment and public protection.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 60(2) (assault police officer occasioning actual bodily harm), s 33B(1)(a) (use offensive weapon to commit indictable offence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A and Table (standard non-parole period)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 (guilty plea discounts)
- Collier v R [2012] NSWCCA 213