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Court of Criminal Appeal 9 March 2016

Daniels v R

[2016] NSWCCA 35

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE RECKLESSLY CAUSE GRIEVOUS BODILY HARM TIME REHABILITATION

Citation: Daniels v R [2016] NSWCCA 35
Court: Court of Criminal Appeal, New South Wales
Date: 9 March 2016
Judge(s): Hoeben CJ at CL, Fullerton J, RS Hulme AJ

Background

The applicant pleaded guilty in the Local Court to one count of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years imprisonment and a standard non-parole period of four years. The offence arose from a single unprovoked punch delivered to an innocent bystander outside a Dubbo hotel in the early hours of 22 December 2013. The applicant, heavily intoxicated after hours of drinking, mistakenly believed the victim had earlier assaulted a friend inside the hotel. The victim had not been inside the hotel at all.

The punch caused a fractured jaw requiring surgery at Westmead Hospital, with bone plates and screws permanently fixed to realign the jaw. The victim also suffered residual numbness to the lower lip, required specialist dental treatment, and reported significant lifestyle impacts in a victim impact statement.

At sentencing in the District Court, the applicant was already on parole for an aggravated break and enter involving assault, an offence that shared notable similarities with the index offence: on both occasions, the applicant was heavily intoxicated and attacked someone he incorrectly believed deserved retaliatory violence. The sentencing judge imposed a non-parole period of three years with a balance of term of 18 months, and added a parole condition requiring the applicant to enter and remain in full-time residential rehabilitation until his treatment for alcohol abuse was completed.

  • Whether the sentence of three years' non-parole period (with a total term of four years and six months) was manifestly excessive
  • Whether the sentencing judge failed to have adequate regard to the applicant's background of alcohol exposure from a young age, as required by Bugmy v R [2013] HCA 37
  • Whether the sentencing judge had the power to impose, as a parole condition, a requirement that the applicant enter into full-time residential rehabilitation

Decision

The Court of Criminal Appeal dismissed the appeal against the length of the sentence, finding it was not manifestly excessive. Fullerton J (with Hoeben CJ at CL and RS Hulme AJ agreeing) accepted that the sentencing judge had properly considered the applicant's history of alcohol abuse from the age of 14, and that this background was taken into account in the assessment of the objective seriousness of the offending. The court found no error in the sentencing judge's approach to the Bugmy principles requiring consideration of how a deprived background can affect moral culpability.

RS Hulme AJ separately noted that the starting point of six years (before a plea discount) was heavy given the unpremeditated nature of the offence and the fact that the injuries, while serious, were substantially less severe than much conduct captured by the same offence provision. However, his Honour was satisfied that the applicant's parole status at the time and his prior record of similar violence justified greater weight being placed on specific deterrence and community protection. On balance, no error warranting intervention was established.

On the parole condition, the Court found that the sentencing judge had no authority under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to impose a condition requiring full-time residential rehabilitation as part of the sentencing order itself. That power rests with the State Parole Authority, not the sentencing court. The imposition of the condition was therefore beyond the sentencing judge's jurisdiction and was set aside.

The Court also accepted, consistently with Kentwell v R [2014] HCA 37, that setting aside the unlawful parole condition did not adversely affect any other aspect of the sentence, which was otherwise permitted to stand.

Orders Made

  • The order of Lerve DCJ made on 20 November 2014 requiring the applicant, upon release to parole, to enter into and remain within a full-time residential rehabilitation facility until treatment and counselling for alcohol abuse was completed is set aside.
  • The appeal against the sentence imposed is otherwise dismissed.

Key Takeaways

  • A sentencing court in New South Wales does not have power under s 50(1) of the Crimes (Sentencing Procedure) Act 1999 to impose a parole condition requiring an offender to enter full-time residential rehabilitation; that function belongs to the State Parole Authority.
  • Consistent with Bugmy v R, the sentencing court is required to consider how a background of deprivation and early alcohol exposure may reduce an offender's moral culpability, but the Court of Criminal Appeal confirmed here that the sentencing judge had in fact done so adequately.
  • Where a sentencing court imposes an unlawful parole condition, the Court of Criminal Appeal may set aside that condition without disturbing the remainder of the sentence, provided no other aspect of the sentence was adversely affected by the error.
  • In dismissing the substantive sentence appeal, the Court of Criminal Appeal accepted that a prior record of similar violence committed while intoxicated, together with the applicant's parole status at the time of the index offence, justified increased weight being given to specific deterrence and community protection, even where the offence itself was unpremeditated.
  • A starting point that may appear heavy relative to the maximum penalty and standard non-parole period can nonetheless survive appellate review where significant aggravating circumstances are properly established to the criminal standard.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 21A, 44(2), 50(1), Division 1 Part 4
- Criminal Appeal Act 1912 (NSW)

Cases
- Bugmy v R [2013] HCA 37; 249 CLR 571
- Kentwell v R [2014] HCA 37; 252 CLR 601
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Pham [2015] HCA 39
- Dinsdale v R [2000] HCA 54; 202 CLR 321
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Lowndes v R [1999] HCA 29; 195 CLR 665
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31
- Ingrey v R [2016] NSWCCA 31
- Kiernan v R [2016] NSWCCA 12