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7
Court of Criminal Appeal 14 April 2015

Muggleton v R

[2015] NSWCCA 62

Also reported as (2015) 250 A Crim R 180
Assault & violence
CRIMINAL LAW S 33(1)(A) CRIMES ACT 1900 (NSW)

Citation: Muggleton v R [2015] NSWCCA 62
Court: NSW Court of Criminal Appeal
Date: 14 April 2015
Judges: Simpson J, Harrison J, Adamson J (with Adamson J delivering the leading judgment)

Background

The applicant was sentenced in the District Court to 6 years and 6 months imprisonment with a non-parole period of 4 years for 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 April 2012 at a hotel beer garden in Penrith, where the applicant smashed a beer glass into the victim's face after a brief, apparently friendly exchange. The applicant then grabbed the victim by the neck and kneed and punched him. The victim required surgery including a skin graft, and later developed severe depression and post-traumatic stress disorder.

The applicant had pleaded guilty when arraigned. At the sentence hearing, the Crown tendered the victim's impact statement, together with reports from a clinical psychologist and a trauma counsellor detailing the victim's ongoing psychological and financial harm. The sentencing judge applied a 15% discount for the guilty plea and found the objective seriousness of the offence to be below mid-range.

The applicant sought leave to appeal on three grounds: that the sentence was manifestly excessive, that the sentencing judge wrongly treated emotional harm in the victim impact statement as an aggravating factor, and that the judge placed disproportionate weight on general deterrence given a causal nexus between the applicant's mental illness and his offending.

  • Whether emotional harm described in a victim impact statement could properly be used as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and whether the evidence supported that finding
  • Whether the sentencing judge gave disproportionate weight to general deterrence in circumstances where the applicant's mental illness was causally connected to the offending
  • Whether the overall sentence was manifestly excessive

Decision

Ground 2: Victim impact statement and emotional harm

Adamson J held that victim impact statements under s 28(1) of the Crimes (Sentencing Procedure) Act 1999 are admissible to show the harm actually caused, and that emotional harm can constitute an aggravating factor under s 21A(2)(g) where it is established by admissible evidence. However, the Court noted that the psychologist's report annexed to the victim impact statement was prepared for a different purpose, namely to support a disability support pension application, and that reliance on it as evidence of the victim's psychiatric diagnosis raised concerns. Adamson J was prepared to assume, without finally deciding, that the judge erred in treating the emotional harm as an aggravating factor under s 21A(2)(g), but held that any such error did not materially affect the sentence because the substantial harm to the victim was in any event a weighty consideration in the overall sentencing exercise.

Ground 3: General deterrence and mental illness

The Court rejected the proposition that a finding of causal nexus between mental illness and offending automatically reduces the weight to be given to general deterrence. Citing R v Engert (1995) 84 A Crim R 67, Adamson J confirmed that a mental condition is neither automatically mitigating nor aggravating: its relevance depends on the circumstances of the case. The Court reasoned that while the applicant's pre-existing PTSD, exacerbated by intoxication, may have caused him to misconstrue the victim's approach as threatening, a person who cannot reliably assess risk and who reacts with violence when intoxicated poses a real danger to the community. The causal connection between mental illness and offending is the beginning, not the end, of the relevant sentencing inquiry.

Ground 1: Manifest excess

Having regard to the maximum penalty of 25 years, the standard non-parole period of 7 years, the objective seriousness of the offence, the substantial harm to the victim, the need for general deterrence, and the applicant's intoxication, the Court was not persuaded the sentence was manifestly excessive. The sentencing process is one of instinctive synthesis of multiple factors, and no error warranting intervention was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A victim impact statement is admissible to demonstrate the harm caused by an offence, but treating emotional harm as a formal aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 requires that the harm be established by admissible evidence directed to that purpose.
  • The existence of a causal nexus between an offender's mental illness and their offending does not automatically reduce the weight given to general deterrence in sentencing. The nature, circumstances, and implications of the mental condition all remain relevant.
  • Under the principle in R v Engert, a mental condition may simultaneously reduce moral culpability and increase the need to protect the community, meaning its net effect on sentence depends on the particular facts.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that sentencing is a process of instinctive synthesis across multiple factors, some of which may point in different directions, and that appellate intervention requires more than disagreement with the weight given to any single factor.
  • Where an error in treating a specific aggravating factor is assumed but the same harm remains properly relevant to the overall sentencing exercise, that error will not necessarily produce a different sentencing outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 28(1), 30, 30A

Cases
- Aguirre v R [2010] NSWCCA 115
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Engert (1995) 84 A Crim R 67
- R v Previtera (1997) 94 A Crim R 76
- R v Tuala [2015] NSWCCA 8
- R v Wilson [2005] NSWCCA 219
- The Queen v De Simoni [1981] HCA 31; 147 CLR 383
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- Wong v The Queen [2001] HCA 64; 207 CLR 584