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Court of Criminal Appeal 30 September 2016

Medcalf v R

[2016] NSWCCA 209

Assault & violence
CRIMINAL LAW SENTENCE APPEAL EARLY PLEA OF GUILTY TWO VICTIMS SUFFERING SERIOUS INJURIES OFFENDER UNABLE TO EXPLAIN ACTIONS ERROR IN SENTENCING PROCESS IDENTIFIED

Citation: Medcalf v R [2016] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 30 September 2016
Judge(s): Hoeben CJ at CL; Campbell J; Button J

Background

The appellant pleaded guilty in the Newcastle District Court to two serious offences: aggravated entry of a dwelling with intent to commit a serious indictable offence (maximum penalty 14 years), and causing grievous bodily harm with intent (maximum penalty 25 years, carrying a standard non-parole period of 7 years). Both offences arose from a single attack on two women who were cleaning a property in Medowie, NSW.

The appellant approached the premises twice before entering through the front door carrying electrical tape and a hand wrap. He attacked both victims without warning, rendering each unconscious. He taped one victim's mouth with over three metres of black electrical tape, positioned the two unconscious women side by side, and left. The victims sustained serious injuries, including a severely broken jaw requiring surgical repair, and both developed significant psychological harm including PTSD.

The District Court sentenced the appellant to an effective term of 13 years' imprisonment with a non-parole period of 9 years and 9 months. The appellant had no prior convictions, entered an early guilty plea, and received a 25% discount. He sought leave to appeal on the basis that the sentencing judge had taken into account an irrelevant consideration, failed to give proper weight to several mitigating factors, and imposed sentences that were manifestly excessive.

  • Whether the sentencing judge erred by taking into account the victims' fear of sexual assault, which the judge had already found was not a feature of the offending
  • Whether the judge gave adequate weight to the appellant's lack of prior convictions and good character as mitigating factors under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the judge gave adequate weight to the appellant's low likelihood of reoffending and genuine prospects of rehabilitation
  • Whether the judge gave adequate weight to the appellant's remorse
  • Whether the sentences imposed were manifestly excessive in all the circumstances

Decision

On Ground 1, the Court of Criminal Appeal found that the sentencing judge had erred by referring to the victims' reasonable fear of sexual assault as a relevant consideration, despite having already rejected the Crown's submission that there was a sexual element to the offending. This amounted to taking into account an irrelevant matter.

On Grounds 2 through 4, the Court found that the sentencing judge had not given sufficient weight to the appellant's genuine mitigating circumstances. The appellant was a person of completely good character with no prior offences and no explanation for his conduct, who demonstrated genuine remorse and had strong prospects of rehabilitation. The Court noted that the imposed sentences sat at the very top of the statistical range, and that this positioning was not justified given the weight properly due to those mitigating factors.

Hoeben CJ at CL concluded that the combination of errors in the sentencing process, together with the placement of the sentences at the statistical ceiling, rendered the sentences manifestly excessive. The Court therefore allowed the appeal and re-sentenced the appellant. Campbell J and Button J agreed.

On re-sentence, the Court reduced the effective total to 10 years and 9 months' imprisonment with a non-parole period of 8 years and 3 months. The Court acknowledged the objective seriousness of the offending, including the planning evident on the day, the significant injuries caused, and the lasting harm to the victims, but balanced those factors properly against the established mitigating circumstances.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentences imposed in the District Court at Newcastle on 21 August 2015 quashed
  • Count 1 (aggravated enter dwelling with intent, s 111(2)): non-parole period of 4 years and 6 months commencing 7 February 2014 and expiring 6 August 2018, balance of term of 1 year and 6 months expiring 6 February 2020
  • Count 2 (cause grievous bodily harm with intent, s 33(1)(b)): non-parole period of 7 years and 3 months commencing 7 February 2015 and expiring 6 May 2022, balance of term of 2 years and 6 months expiring 6 November 2024
  • Earliest parole date set at 6 May 2022

Key Takeaways

  • A sentencing court commits an error of principle by treating a matter it has already excluded from the facts as an aggravating circumstance; finding that victims reasonably feared sexual assault was irrelevant once the judge had rejected any sexual element to the offending.
  • Inadequate weight given to a combination of established mitigating factors, including genuine good character, absence of prior convictions, remorse, and strong rehabilitation prospects, can ground a finding that a sentence is manifestly excessive.
  • Positioning a sentence at the very top of the statistical range requires justification; where mitigating factors were underweighted, that positioning contributed to the finding of manifest excess.
  • In re-sentencing, the Court of Criminal Appeal confirmed that objective seriousness, including evidence of same-day planning and severe victim injuries, must still be given substantial weight, even where mitigating factors are significant.
  • The standard non-parole period for causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900 (NSW) is 7 years; the re-sentence reflected modest uplift from that benchmark in light of the overall circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e)

Cases:
- Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- House v R [1936] HCA 40; 55 CLR 499
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Makarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Jione [2007] NSWCCA 170
- Regina v Darrell Terry McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- Ryan v R [2001] HCA 21; 206 CLR 267
- Sproates v R [2009] NSWCCA 29
- Vragovic v R [2007] NSWCCA 46