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Court of Criminal Appeal 18 February 2015

Taylor v R

[2015] NSWCCA 12

Assault & violence
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE SENTENCING APPEAL AGAINST SENTENCE

Citation: Taylor v R [2015] NSWCCA 12
Court: Court of Criminal Appeal, New South Wales
Date: 18 February 2015
Judges: Basten JA; Simpson J; Davies J

Background

The appellant was convicted by a jury in the District Court on four counts of assault against a child, Louise O'Brien, who had lived with the appellant and her family for approximately three years and eight months. Two counts were common assault and two were assault occasioning actual bodily harm. The sentencing judge imposed an aggregate sentence of two years and five months with a non-parole period of 15 months.

The offending came to light only after Ms O'Brien's death and the subsequent discovery of her decomposed remains in February 2011. The appellant had maintained the pretence that Ms O'Brien was still alive from the time of her death in October 2008 until police made that discovery. The appellant had also been separately convicted of being an accessory after the fact to manslaughter, for which she received four years' imprisonment with a non-parole period of three years.

The appellant sought leave to appeal the assault sentences on the ground that they were manifestly excessive, and raised several additional grounds at the hearing, including misapplication of accumulation and totality principles, failure to consider a non-custodial sentence, inadequate weight given to her mental health, and improper treatment of delay.

  • Whether the aggregate sentence of two years and five months was manifestly excessive
  • Whether the sentencing judge correctly applied the principles of accumulation and totality, including by reference to the earlier accessory to manslaughter sentence
  • Whether the delay between the offending and the prosecution entitled the appellant to leniency
  • Whether the sentencing judge should have given greater weight to the appellant's claimed major depressive disorder
  • Whether the maximum two-year sentencing limit in the Local Court capped the District Court's sentencing discretion for offences that could have been dealt with summarily
  • Whether an earlier conviction for conduct that post-dated the offences being sentenced could legitimately reduce the leniency otherwise available to an offender

Decision

The Court of Criminal Appeal dismissed the appeal on all grounds. Basten JA (with Simpson J and Davies J agreeing) found no basis to interfere with the sentences imposed by the District Court.

On delay, the Court rejected the submission that the lapse of time between the offending and prosecution warranted leniency. The principles in R v Todd, which recognise that delay can ground a measure of fairness to an offender, did not apply here. The delay was entirely attributable to the appellant's own deceptive conduct in concealing the victim's death for more than two years. There was no period of rehabilitation to protect, and the trial judge had found an absence of remorse or acceptance of responsibility.

On totality and the accessory conviction, the Court declined to accept that the assault sentences needed to be further reduced to account for the accessory to manslaughter sentence. The practical effect of the assault sentences was to extend the appellant's mandatory custody by only 12 months beyond what she was already serving. On the separate question of whether the accessory conviction could be used to reduce leniency for the assault charges, the Court accepted as a general principle that a sentencing judge should ordinarily confine consideration of criminal history to offences that pre-date the offences being sentenced. However, on the facts, this point did not affect the outcome.

On the remaining grounds, the Court found no error in the sentencing judge's treatment of the appellant's mental health. The claimed depression had never been formally diagnosed or treated, and the psychologist's report was prepared for different proceedings. The Court also confirmed that the Local Court's two-year sentencing ceiling does not operate as a limit on the District Court's sentencing discretion for offences that could have been dealt with summarily.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The delay between an offence and its prosecution does not automatically attract leniency under R v Todd where the delay was caused or prolonged by the offender's own deceptive conduct.
  • A conviction for conduct that post-dates the offences being sentenced should generally not be used to diminish the leniency otherwise available to an offender at sentence, though this principle did not alter the outcome on the facts of this case.
  • The Local Court's two-year maximum sentencing jurisdiction does not cap the sentence a District Court may impose for offences that could theoretically have been dealt with summarily. The prescribed statutory maximum for the offence governs in the higher court.
  • In assessing totality, the Court considered the practical effect of the new sentences on the period of mandatory custody actually being served, rather than treating all sentences in isolation.
  • No error was established in the sentencing judge's decision to discount the weight of a psychological report that was prepared for separate proceedings, relied on a brief video-link consultation, and described a condition that had never been formally diagnosed or treated.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 15B

Cases:
- R v Todd [1982] 2 NSWLR 517
- TT v R [2014] NSWCCA 206
- R v Doan [2000] NSWCCA 317; 50 NSWLR 115
- Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465