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Court of Criminal Appeal 10 April 2015

Porter v R

[2015] NSWCCA 59

Assault & violence
CRIMINAL LAW S 33(1)(A) CRIMES ACT 1900 (NSW) DEPENDS ON FACTS AND CIRCUMSTANCES

Citation: Porter v R [2015] NSWCCA 59
Court: Court of Criminal Appeal, NSW
Date: 10 April 2015
Judges: Simpson J, Harrison J, Adamson J

Background

The applicant pleaded guilty in the District Court at Nowra to wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW). The offence arose from an incident in the early hours of 24 March 2013, when the applicant attended a residential property armed with a machete, connected to an ongoing dispute with the occupants' son. During the confrontation, the applicant struck the victim (the householder) on the left arm with the machete, causing an 8cm laceration requiring surgical treatment.

The applicant was sentenced to five years' imprisonment commencing 23 June 2013, with a non-parole period of three years. Two additional matters were taken into account on a Form 1: driving an uninsured vehicle and using an unregistered vehicle.

The applicant sought leave to appeal against the sentence, raising four grounds: erroneous factual findings, impermissible reliance on precedent, failure to properly account for mental illness, and manifest excess.

  • Whether the sentencing judge erred by failing to make critical factual findings on unchallenged evidence, specifically the applicant's claim that the victim's son fired an air rifle at him
  • Whether the sentencing judge erroneously treated himself as bound to impose the same sentence as in Chen v R [2011] NSWCCA 85
  • Whether the sentencing judge failed to apply the correct principles when sentencing an offender with an established mental illness, particularly regarding general deterrence
  • Whether the sentence was manifestly excessive in the circumstances

Decision

Ground 1 (Factual findings): The Court of Criminal Appeal held that the sentencing judge was not obliged to accept the applicant's evidence that he had been shot at with an air rifle. The claim was disputed by the Crown, which pointed to the absence of any gunshots on the Triple-0 recording. The Court also noted a broader procedural concern: the sentencing process was hampered by a failure to clearly identify which facts were agreed and which remained genuinely in dispute. On the agreed facts, the applicant carried a machete to the property in the middle of the night, escalated the confrontation, and injured the householder when he attempted to intervene.

Ground 2 (Precedent): An observation by the sentencing judge that he was "bound" to follow Chen v R was described by Simpson J as "infelicitous and gratuitous." However, a fair reading of the remarks on sentence, including reference to Judicial Commission statistics showing a sentencing range of two to sixteen years and a most common sentence of six years, demonstrated that the judge had not in fact mechanically imposed the Chen sentence. No error in approach was established.

Ground 3 (Mental illness and general deterrence): The Court confirmed that a finding of mental illness does not automatically displace general deterrence as a sentencing consideration. Whether general deterrence remains relevant depends on the nature and degree of the mental illness and the particular facts and circumstances. The applicant's mild intellectual disability and other diagnosed conditions did not, on the evidence before the sentencing court, require general deterrence to be set aside entirely. The court was still required to have regard to the full range of purposes in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), as well as the standard non-parole period of seven years and the maximum penalty of 25 years.

Ground 4 (Manifest excess): Notwithstanding the applicant's difficult personal circumstances and mitigating factors, including remorse and prospects of rehabilitation, the objective seriousness of the offence was significant. The applicant attended a family home at 1 am, carrying a machete, and wounded a householder who attempted to protect his family. The Court found no manifest excess in the sentence imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's isolated remark suggesting adherence to a prior sentence will not necessarily reveal error if the remarks on sentence, read as a whole, demonstrate that the judge in fact exercised an independent discretion informed by relevant sentencing statistics and principles.
  • Under the established principles confirmed in R v Engert (1995), mental illness does not automatically remove general deterrence from the sentencing calculus; its relevance depends on the specific nature of the illness and the surrounding facts.
  • No error was established in declining to accept an applicant's unchallenged account of provocation where the Crown disputed that account and there was a factual basis for the dispute, such as the absence of corroborating evidence.
  • The Court of Criminal Appeal flagged the importance of clearly distinguishing agreed facts from facts in dispute before the sentence hearing begins, so that contested matters can be properly resolved by evidence.
  • Manifest excess is a conclusion that does not require identification of a specific error, but the Court declined to find it here given the objective seriousness of an armed, late-night attack on a householder.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 32, 44(2)

Cases:
- Chen v R [2011] NSWCCA 85
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Engert (1995) 84 A Crim R 67
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Rudd [2010] NSWCCA 71