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Court of Criminal Appeal 17 October 2016

Hitchcock v R

[2016] NSWCCA 226

Assault & violence
CRIMINAL LAW SENTENCE APPEAL GROUND OF APPEAL CONCEDED BY CROWN NEED TO RE SENTENCE ON RE

Citation: Hitchcock v R [2016] NSWCCA 226
Court: Court of Criminal Appeal, NSW
Date: 17 October 2016
Judges: Hoeben CJ at CL, Harrison J, Campbell J

Background

The appellant pleaded guilty to one count of wounding with intent to murder, contrary to s 27 of the Crimes Act 1900, carrying a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years. The offence involved a premeditated stabbing attack on the victim at a park in Western Sydney, carried out at the instigation of the co-accused. The appellant stabbed the victim at least six times with a fruit knife, inflicting multiple penetrating wounds that required emergency surgery.

The appellant was sentenced in the District Court by Judge Hanley SC on 24 September 2015 to imprisonment with a non-parole period of 8 years and a balance of term of 4 years. He sought leave to appeal that sentence on a single ground.

Relevant to the appeal, the appellant had made early disclosures to police upon arrest and later provided a statement indicating willingness to give evidence at the co-accused's trial. The sentencing judge acknowledged that these matters attracted "some limited discount" but did not specify the actual percentage or quantum of that discount in the judgment.

  • Whether the sentencing judge erred by failing to quantify the discount afforded to the appellant for his assistance to authorities, as required under s 23 of the Crimes (Sentencing Procedure) Act 1999
  • Whether, if error was established, resentencing was warranted and a lesser sentence was justified in law

Decision

The Crown conceded the single ground of appeal. The sentencing judge had acknowledged that assistance to authorities attracted some discount but failed to state the actual discount in quantified terms. This omission constituted legal error, consistent with the requirement under s 23 of the Crimes (Sentencing Procedure) Act 1999 and the principles confirmed in cases such as Kentwell v The Queen and R v Robinson.

Hoeben CJ at CL found that resentencing was necessary. In assessing the appropriate sentence afresh, his Honour considered the objective seriousness of the offence, the appellant's significant cognitive impairments arising from a severe traumatic brain injury sustained in 2008, and his diagnosed mental health conditions. A forensic psychologist's report confirmed a causal connection between the appellant's brain injury, his impaired behavioural and emotional control, and the offending. These matters substantially reduced the appellant's moral culpability, notwithstanding the serious nature of the crime.

On resentencing, the Court was satisfied that a lesser sentence was warranted in law. The reduced sentence reflected the quantified discount for assistance to authorities, together with the mitigating weight properly attributable to the appellant's cognitive and psychiatric conditions.

Harrison J and Campbell J agreed with the orders proposed by Hoeben CJ at CL. Harrison J specifically noted that the causal relationship between the appellant's traumatic brain injury and his offending significantly reduced his moral culpability for what remained a serious offence.

Orders Made

• The appellant should be resentenced in the way proposed by the Chief Judge.

Key Takeaways

  • A sentencing judge who acknowledges that an offender's assistance to authorities warrants a discount must quantify that discount in the judgment. Failure to do so constitutes identifiable legal error, warranting appellate intervention.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, the obligation to specify the discount for assistance is not satisfied by a general acknowledgment that "some limited discount" applies.
  • Where a severe traumatic brain injury causally contributed to impaired behavioural control and substance use, and those impairments were relevantly connected to the offending, the sentencing court is required to treat this as a significant mitigating factor reducing moral culpability.
  • In conceding the appeal, the Crown accepted that the failure to quantify the assistance discount was an error of principle, reinforcing that the quantification requirement is not a formality.
  • Resentencing by the Court of Criminal Appeal following a successful sentence appeal may produce a lesser sentence where the identified error was material to the sentence originally imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 27 (wounding with intent to murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 101A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Motor Accident Compensation Act 1999 (NSW)

Cases:
- Avery v R [2015] NSWCCA 50
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Panetta v R [2016] NSWCCA 85
- R v Robinson [2014] NSWCCA 12