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Court of Criminal Appeal 13 May 2015

McVittie v R

[2015] NSWCCA 92

Assault & violence
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE AGGRAVATED KIDNAPPING NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

Citation: McVittie v R [2015] NSWCCA 92
Court: Court of Criminal Appeal (NSW)
Date: 13 May 2015
Judges: Hoeben CJ at CL; R A Hulme J (principal judgment); Wilson J

Background

The applicant was sentenced in the Sydney District Court in December 2013 for wounding with intent to cause grievous bodily harm, with an aggravated kidnapping offence taken into account. The offending arose from a sustained and violent attack on a man the applicant had lured to his home, during which the applicant stabbed the victim three times and struck him with a dumbbell bar and hammer. The attack was driven by the applicant's delusional belief that the victim had conspired with others to have him killed.

The sentencing judge imposed a sentence of five years and six months, with a non-parole period of three years and four months, after allowing a 25 per cent discount for the utilitarian value of the guilty plea. Psychiatric evidence before the sentencing court indicated the applicant suffered from probable paranoid schizophrenia and that his mental illness had diminished his moral culpability.

The applicant, unrepresented on appeal, sought leave to appeal against sentence. A central argument concerned whether fresh evidence should be admitted on appeal, and whether the sentencing judge had erred in finding limited prospects of rehabilitation.

  • Whether fresh evidence should be admitted on appeal to address the sentencing judge's findings about rehabilitation prospects
  • Whether the sentencing judge erred in assessing the applicant's remorse
  • Whether the sentence was manifestly excessive

Decision

Fresh evidence and rehabilitation. The Court of Criminal Appeal considered whether fresh evidence tendered on appeal could be received to address the sentencing judge's finding that the applicant had limited prospects of rehabilitation. The Court found no error in the sentencing judge's original assessment, which was open on the evidence available at the sentence hearing. Because no appellable error was established in the first instance, there was no gateway through which the fresh evidence could be admitted, and no substantial miscarriage of justice was shown.

Remorse. The sentencing judge had been entitled to discount the applicant's claimed remorse. The letter the applicant wrote to the victim purported to express sorrow and regret, but also accused the victim of lying in his police statement and described the savage attack as merely "the incident that happened between us." The sentencing judge also had the benefit of seeing the applicant give evidence, and was not obliged to accept the father's evidence that the applicant was "extremely remorseful."

Manifest excess. The Court considered whether the sentence was manifestly excessive, doing so of its own motion given the applicant was unrepresented. While acknowledging that the sentencing judge made findings in the applicant's favour on moral culpability and general deterrence (on account of his mental illness), the Court concluded the sentence was neither unreasonable nor plainly unjust. The offences were serious, involving a premeditated and sustained violent attack on an innocent victim, and the sentence appropriately reflected the need for punishment, specific deterrence, and community protection.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's finding that the applicant had limited prospects of rehabilitation, meaning no basis existed for the Court of Criminal Appeal to admit fresh evidence on that question.
  • A sentencing judge is entitled to approach claims of remorse with scrutiny where a letter purportedly expressing remorse simultaneously accuses the victim of dishonesty and minimises the gravity of the offending.
  • Where a sentencing judge has had the benefit of seeing and hearing a witness give evidence, an appellate court will not readily disturb findings on credibility, particularly when defence counsel made no submission at first instance urging acceptance of that evidence.
  • The Court of Criminal Appeal confirmed it retains a discretion to consider manifest excess independently, even where an unrepresented applicant has not framed a specific ground to that effect.
  • In dismissing the appeal, the Court affirmed that a sentence of five and a half years for wounding with intent (with an aggravated kidnapping taken into account) was not unreasonable, where the offending involved a premeditated luring of the victim and a prolonged, one-sided violent attack.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33 (wounding with intent to cause grievous bodily harm, maximum 25 years), 86(2) (aggravated kidnapping, maximum 20 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3) (standard non-parole period provisions)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- Lacey v Attorney General (Qld) [2011] HCA 10; 242 CLR 573
- Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Butters v R [2010] NSWCCA 1
- AB v R [2014] NSWCCA 339
- R v Fordham (1997) 98 A Crim R 359
- R v Goodwin (1990) 51 A Crim R 328
- R v Kyriakou (1987) 29 A Crim R 50
- R v O'Donoghue (1988) 34 A Crim R 397