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Court of Criminal Appeal 17 August 2016

Campbell v R

[2016] NSWCCA 170

Assault & violence
CRIMINAL LAW APPEALS SENTENCING WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Campbell v R [2016] NSWCCA 170
Court: Court of Criminal Appeal, NSW
Date: 17 August 2016
Judges: Payne JA, McCallum J, Wilson J

Background

The appellant, a trained Muay Thai fighter, pleaded guilty in the District Court to causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years. The offence arose from an unprovoked elbow strike delivered with great force to the victim's face during a late-night encounter at a hotel in 2013. The two men had previously competed against each other in a professional Muay Thai bout, and the altercation followed a brief exchange about the outcome of that fight.

The victim suffered bilateral fractures of the jaw, underwent surgery, and was unable to eat solid food or perform physical work for six weeks. The attack was captured on CCTV and showed no strike or push from the victim. In a recorded police interview, the appellant acknowledged knowing what was happening at the time and expressed indifference to the victim's injuries.

The sentencing judge in the District Court assessed the offence as mid-range in objective seriousness, allowed a 10% discount for the guilty plea from a starting point of eight years, found special circumstances, and imposed a total sentence of seven years and two months with a non-parole period of five years. The appellant sought leave to appeal that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge failed to give sufficient effect to a finding of special circumstances when structuring the sentence
  • Whether the sentence imposed was manifestly excessive

Decision

Special circumstances ground: Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard ratio requires a non-parole period equal to at least three-quarters of the total sentence. A finding of special circumstances permits departure from that ratio to allow a longer parole period, typically to facilitate rehabilitation. McCallum J held that the sentencing judge did in fact give effect to the special circumstances finding. The non-parole period of five years represented approximately 70% of the total term of seven years and two months, a modest but real departure from the standard three-quarters ratio. The ground was not established.

Manifest excess ground: The appellant pointed to two comparable cases. The Court noted that one of those decisions, Deng v R, had itself been found to involve sentencing error and was therefore not available as a valid comparator. The second case, Pearson v R, was distinguished on several bases, including that it predated the introduction of standard non-parole periods under s 54A of the Crimes (Sentencing Procedure) Act. McCallum J observed that the sentence imposed might be regarded as stern, but that observation alone is no basis for appellate intervention. To succeed on this ground, an applicant must demonstrate the sentence was "unreasonable or plainly unjust," and that threshold was not met here.

The Court unanimously refused leave to appeal.

Orders Made

• Leave to appeal refused

Key Takeaways

  • A finding of special circumstances does not demand a dramatic departure from the standard non-parole period ratio; even a modest reduction from the three-quarters baseline can be sufficient to give effect to such a finding, provided the sentencing judge's reasoning reflects the finding.
  • To establish manifest excess, an applicant must demonstrate that the sentence was "unreasonable or plainly unjust," not merely that it was stern or at the upper end of an available range.
  • Comparable sentences drawn from earlier decisions must themselves be free from identified error; a sentence later found by an appellate court to involve error cannot be used as a valid comparator for manifest excess purposes.
  • Under s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW), sentences imposed before the introduction of standard non-parole periods are of limited comparative value and require careful scrutiny before use as analogues.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that the sentencing judge's exercise of discretion in weighing mitigating factors, including remorse, alcohol dependency, psychiatric history, and limited access to rehabilitation programmes while on remand, attracted the usual appellate deference.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 33(1)(b), 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44(1), 44(2), 54A

Cases
- Barbaro v R; Zirilli v R [2014] HCA 2; 253 CLR 58
- Caristo v R [2011] NSWCCA 7
- Deng v R [2007] NSWCCA 216
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- El-Almad v R [2015] NSWCCA 65
- Makarian v The Queen [2005] HCA 25; 228 CLR 357
- Pearson v R [2002] NSWCCA 428