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Court of Criminal Appeal 7 November 2016

Kelly v R

[2016] NSWCCA 246

Assault & violence
CRIMINAL LAW SENTENCE APPEAL MISCARRIAGE OF JUSTICE EVIDENCE ALLOWED ON APPEAL APPEAL GRANTED SENTENCE REDUCED.

Citation: Kelly v R [2016] NSWCCA 246
Court: Court of Criminal Appeal, New South Wales
Date: 7 November 2016
Judge(s): Hoeben CJ at CL; Rothman J; R A Hulme J

Background

The applicant pleaded guilty to six offences arising from a violent incident in Pitt Street, Sydney, on 3 October 2013. He had been released from prison only months earlier. Using pieces of broken glass wrapped in a sock, he stabbed or cut five people, causing serious injuries including wounds to one victim's neck that came dangerously close to the carotid artery, and permanent facial scarring to another.

At the sentencing hearing in the District Court, the applicant chose to represent himself, despite repeated and emphatic encouragement from the sentencing judge to obtain legal representation through Legal Aid. The applicant explained his reluctance by reference to negative past experiences with Legal Aid lawyers. He also minimised his mental health history, telling the court that the only diagnoses he had received were anxiety and depression.

The sentencing judge imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 9 years. The applicant subsequently obtained legal representation and sought to appeal on the basis that his self-representation had caused a miscarriage of justice, because the court had been deprived of significant psychiatric and cognitive evidence relevant to the sentencing exercise.

  • Whether the applicant's self-representation, combined with his failure to place his psychiatric and cognitive history before the sentencing court, resulted in a miscarriage of justice.
  • Whether fresh psychiatric and cognitive evidence should be admitted on appeal to support that ground.
  • If a miscarriage of justice was established, what sentence should be substituted.

Decision

The Court of Criminal Appeal allowed the appeal on the ground that the applicant's incompetent presentation of his subjective case had resulted in a miscarriage of justice. Critically, it was established on appeal that the applicant suffered from significant psychiatric conditions and a cognitive disorder. That material was directly relevant to several established sentencing principles, including those concerning the reduced moral culpability of offenders with cognitive impairments, the weight given to general deterrence in such cases, and the particular hardship that imprisonment may impose on a mentally unwell person.

The Court admitted fresh psychiatric and neuropsychological evidence on appeal. That evidence painted a materially different picture of the applicant's background and condition than the one available to the sentencing judge. The Court noted that the sentencing judge could not be criticised: given the applicant's responses, little more could reasonably have been done to encourage him to obtain legal assistance or to place relevant material before the court. The miscarriage arose not from any error by the judge but from the applicant's own incompetent and uninformed handling of his case.

Applying the principles in cases such as Bugmy v The Queen and R v Fernando, the Court found that the psychiatric and cognitive evidence warranted a meaningful reduction in the sentence. The Court also found that special circumstances existed, justifying a non-parole period below the statutory ratio of two-thirds, given the applicant's need for extended supervision and support in the community upon release.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed and the following substituted:
  • Sequence 6 (destroy or damage property): fixed term of 18 months, commencing 3 October 2013.
  • Sequence 4 (assault occasioning actual bodily harm): fixed term of 2 years and 9 months, commencing 3 April 2014.
  • Sequence 5 (assault occasioning actual bodily harm): fixed term of 2 years and 9 months, commencing 3 October 2014.
  • Sequence 7 (assault occasioning actual bodily harm): fixed term of 2 years and 9 months, commencing 3 April 2015.
  • Sequence 2 (wound with intent to cause grievous bodily harm): non-parole period of 4 years commencing 3 October 2015, balance of term of 2 years and 9 months concluding 2 July 2022.
  • Sequence 3 (wound with intent to cause grievous bodily harm): non-parole period of 4 years commencing 3 October 2016, balance of term of 4 years and 3 months concluding 2 January 2025.
  • Overall: head sentence of 11 years and 3 months, non-parole period of 7 years, with eligibility for parole from 3 October 2020.

Key Takeaways

  • A self-represented offender's failure to place material psychiatric and cognitive evidence before a sentencing court can constitute a miscarriage of justice on appeal, even where the sentencing judge encouraged legal representation and cannot be faulted.
  • Fresh evidence of psychiatric and cognitive impairment is capable of being admitted on a sentence appeal where it demonstrates that the sentencing court was deprived of information that would likely have affected the outcome.
  • Under the principles in Bugmy v The Queen and R v Fernando, evidence of cognitive impairment and mental illness is relevant to an offender's moral culpability, the weight given to general deterrence, and the burden that imprisonment may place on that individual.
  • Special circumstances justifying a reduced non-parole period ratio can be established where an offender's mental health conditions create a heightened need for supervised support in the community following release.
  • In dismissing criticism of the sentencing judge, the Court of Criminal Appeal confirmed that a miscarriage of justice in this context focuses on the effect of the self-represented accused's incompetent case presentation, rather than on any error or omission by the judge below.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 59(1), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
- Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509