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Court of Criminal Appeal 14 April 2015

Simpson v R

[2015] NSWCCA 60

Assault & violence
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE MENTAL ILLNESS SPECIAL CIRCUMSTANCES MANIFEST EXCESS APPEAL DISMISSED

Citation: Simpson v R [2015] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 14 April 2015
Judge(s): Macfarlan JA, Simpson J, Schmidt J (all agreeing in the reasons of Schmidt J)

Background

The appellant was convicted at trial of assault occasioning actual bodily harm in company and reckless wounding, both committed against the same victim on 5 August 2011. The offences arose from two separate attacks: the first near a house in Dapto, during which the appellant struck the victim with a knife; and the second shortly after, when the appellant pursued the victim by car and wounded him again after he attempted to flee.

The sentencing judge in the District Court imposed a total effective sentence of four years imprisonment, with a non-parole period of two years and nine months (approximately 69% of the total term). The sentences were made wholly concurrent, reflecting a finding of special circumstances under the relevant sentencing legislation.

Following the trial, the appellant was diagnosed with chronic paranoid schizophrenia and suffered a significant deterioration in his mental health while in custody. He sought leave to appeal against the sentence on three grounds.

  • Whether the sentencing judge gave inadequate regard to the principles applicable when sentencing a person with a mental illness
  • Whether the variation to the ratio between the head sentence and the non-parole period failed to give proper practical effect to the finding of special circumstances
  • Whether the sentence for reckless wounding was manifestly excessive

Decision

The Court granted leave to appeal on all grounds but dismissed the appeal.

On the first two grounds, Schmidt J noted that the degree to which mental illness is taken into account in sentencing involves a discretion not lightly disturbed on appeal. The sentencing judge had accepted the evidence of the appellant's mental illness and expressly found that it warranted leniency. Contrary to the appellant's submissions, his Honour had considered the illness in context: he took it into account both as a mitigating factor and as a basis for reducing the non-parole period below the statutory ratio. The Court found no failure to engage with the relevant principles.

The Court also rejected the argument that the departure from the statutory non-parole period ratio was insufficient to give practical effect to the special circumstances finding. The concurrent structure of the sentences and the reduction in the non-parole period were identified as concrete benefits flowing from the findings made. A more substantial reduction in the ratio, as the appellant sought, was not required on the facts.

On the ground of manifest excess, Schmidt J found no error. The offending was serious: two unprovoked attacks on the same victim, involving a knife, and a deliberate pursuit after the victim attempted to flee. The sentencing judge was required to give weight to specific deterrence and community protection, and properly balanced those considerations against all mitigating factors, including the appellant's mental illness, drug use, and the impact of custody. The resulting sentence of four years with a non-parole period of two years and nine months was not shown to be unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's treatment of mental illness in sentencing involves a discretionary exercise that an appellate court will not readily disturb, provided the relevant principles are reflected in the outcome, even if not expressly articulated step by step.
  • Where a finding of special circumstances is made, the degree of departure from the statutory non-parole period ratio is itself a discretionary matter; no particular percentage reduction is mandated, and the Court of Criminal Appeal will be slow to intervene.
  • Concurrent sentences and a reduced non-parole period together constituted a sufficient practical expression of the special circumstances finding in this case, where the mental illness had already deteriorated before sentencing but arose largely after the offending.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that the instinctive synthesis required by Markarian v The Queen obliges a sentencing judge to balance all relevant factors, including those that point toward more serious sentences, against mitigating circumstances.
  • No error was established merely because the appellant's mental illness could theoretically have warranted a greater reduction; the sentencing judge had addressed the illness as both a mitigating factor and a basis for special circumstances, and the overall sentence remained within the available range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(4), 59(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes (Administration of Sentences) Regulation 2008 (NSW) (repealed)
- Crimes (Administration of Sentences) Regulation 2014 (NSW)

Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Spaliviero v R [2012] NSWCCA 189
- R v Cramp [2004] NSWCCA 264
- Cranshaw v R [2009] NSWCCA 80
- R v SJD [2004] NSWCCA 18
- Jackson v R [2010] NSWCCA 162
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- Vuni v The Queen [2006] NSWCCA 171