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Court of Criminal Appeal 11 March 2015

Hazell v R

[2015] NSWCCA 26

Assault & violenceDomestic & family violence
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE MENTAL HEALTH AND INTELLECTUAL ISSUES SUBSTANCE AND ALCOHOL ABUSE APPEAL DISMISSED

Citation: Hazell v R [2015] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 11 March 2015
Judges: Hoeben CJ at CL; Harrison J; R A Hulme J

Background

The applicant was sentenced in the District Court in December 2013 following guilty pleas to three offences arising from a single sustained domestic violence incident on 5 January 2013. The offences were assault occasioning actual bodily harm, aggravated detain for advantage, and reckless wounding, all committed against his partner. The attack involved prolonged beating, use of a kitchen knife, and threats to kill, resulting in serious injuries to the victim.

The applicant had a prior criminal history that included a District Court conviction for maliciously inflicting grievous bodily harm, for which he had been released on parole. He was still on parole at the time of these offences. He received a 25 percent discount on sentence for his guilty pleas.

The District Court imposed a total sentence of six years imprisonment, with a non-parole period of four years, all sentences running concurrently from the date of arrest. The applicant sought leave to appeal, arguing the sentences were manifestly excessive and that the sentencing judge had failed to properly account for his mental health, intellectual issues, and the conditions he would face in custody.

  • Whether the sentencing judge failed to take into account the causal link between the applicant's mental health issues and the commission of the offences
  • Whether the sentencing judge failed to give sufficient weight to the more onerous conditions of custody that the applicant would face due to his mental health and intellectual issues
  • Whether the overall sentences were manifestly excessive
  • Whether the sentencing judge erred in declining to set a non-parole period for the reckless wounding count, which carried a standard non-parole period

Decision

On the first ground, Harrison J found no error in the sentencing judge's treatment of the applicant's mental health and intellectual issues. His Honour had expressly considered those circumstances, including their potential relevance to the offending and the conditions of custody. The Court of Criminal Appeal was not persuaded that the sentencing judge misapprehended or misapplied the weight to be given to those factors in light of the seriousness of the offending and the applicant's significant criminal history.

On the second ground, the court rejected the submission that the overall sentence was manifestly excessive. Harrison J noted that the applicant benefited from substantial concurrency, with all sentences commencing on the same date. The head sentence was effectively coextensive with the individual sentence for the most serious offence, aggravated detain for advantage, which carries a maximum of 20 years imprisonment. The court observed that, on one view, the sentences could be considered lenient given the use of a knife and the fact that the applicant was on parole for earlier violent offending at the time.

The third ground, concerning the absence of a non-parole period for the reckless wounding count, was not independently addressed. Harrison J noted that the ground had no practical utility unless the court decided to resentence the applicant, which it did not. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's treatment of mental health and intellectual issues will not constitute error merely because the weight given to those factors is outweighed by the gravity of the offending and the offender's criminal history.
  • Where an applicant received significant concurrency in sentencing, the practical benefit of that concurrency is a relevant consideration in assessing a claim of manifest excess.
  • A standard non-parole period ground of appeal has no independent utility unless the appellate court decides to resentence the offender; if the appeal against the overall sentence fails, such a ground falls away.
  • The Court of Criminal Appeal noted that being on parole at the time of serious violent offending is a meaningful aggravating factor in the sentencing calculus.
  • No error was established in the sentencing judge's exercise of discretion, and the court declined to intervene despite the applicant's personal circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning actual bodily harm, maximum 5 years)
- Crimes Act 1900 (NSW), s 86(2)(b) (aggravated detain for advantage, maximum 20 years)
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding, maximum 7 years, standard non-parole period 3 years)

Cases:
- Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1