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Court of Criminal Appeal 31 May 2017

Troy Douglas Pleace v R

[2017] NSWCCA 112

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE ASSAULT OCCASIONING ACTUAL BODILY HARM ASSAULT WITH CROW BAR IN VICTIM’S HOME WHETHER SENTENCE MANIFESTLY EXCESSIVE SCHIZOPHRENIA

Citation: Troy Douglas Pleace v R [2017] NSWCCA 112
Court: Court of Criminal Appeal, New South Wales
Date: 31 May 2017
Judge(s): Hoeben CJ at CL, Fullerton J, Hamill J

Background

The applicant pleaded guilty in the District Court to two offences arising from a single criminal episode in November 2013. He entered a Coogee dwelling at approximately 7 am, armed with a crowbar, and confronted a man whom he believed had mistreated his girlfriend. During the confrontation, he threatened both occupants and struck the male victim on the forearm with the crowbar, causing swelling but no fracture.

The sentencing judge imposed an aggregate sentence of five years with a non-parole period of three years. Indicative sentences were four and a half years for entering a dwelling with intent to commit intimidation and 18 months for assault occasioning actual bodily harm. The aggregate sentence was partially accumulated on a separate sentence of three and a half years the applicant was already serving for a related offence committed around the same time, producing a total effective non-parole period of four years.

The applicant had a significant criminal history stretching back to 1994, including violence, weapons, and break and enter offences. The sentencing judge found that the applicant suffered from a severe psychiatric condition (schizophrenia), that his prospects of rehabilitation were bleak, and that there was a high chance of reoffending. The applicant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the aggregate sentence of five years, with a non-parole period of three years, was manifestly excessive given the applicant's severe psychiatric condition.
  • Whether the indicative sentences for the individual offences were themselves excessive.
  • Whether the extent of accumulation on the earlier sentence (one year) produced a total sentence that was manifestly excessive.
  • The proper relevance of sentencing statistics and outcomes in comparable cases to a claim of manifest excess.

Decision

The Court of Criminal Appeal granted leave to appeal, acknowledging that the sentence was a severe one given the applicant's longstanding and serious psychiatric illness. However, the Court unanimously dismissed the appeal, finding that the sentence was not manifestly excessive in the legal sense established by the High Court in Lowndes v The Queen.

Hamill J, with whom the other judges agreed, observed that the applicant's subjective case was forceful. A different sentencing judge might reasonably have weighted the psychiatric condition more heavily and imposed a shorter sentence. That possibility, however, does not establish manifest excess. The relevant standard is whether the sentence was plainly wrong or unjust, not merely whether it was towards the upper end of the available range.

On the use of sentencing statistics, the Court applied the principle from Lowndes and affirmed in Dinsdale v The Queen: statistical comparisons with other cases may indicate that a sentence is out of the ordinary, but they cannot, on their own, establish that a sentence is manifestly excessive. Each case must be assessed on its own facts.

As to the accumulation question, the Court held that the degree of concurrence and accumulation between sentences is a matter of discretionary judgment for the sentencing court. The sentencing judge had the advantage of knowing the full facts of both matters, recognised that the offences occurred within a short timeframe, and also recognised that they involved distinct criminality. No error in the exercise of that discretion was identified.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence being severe, or at the higher end of the range a judge might impose, does not establish manifest excess. The applicable test remains whether the sentence was plainly wrong or unjust.
  • A severe and longstanding psychiatric condition such as schizophrenia is a significant mitigating factor in sentencing, but does not automatically reduce a sentence to a particular level or render a higher sentence manifestly excessive.
  • Sentencing statistics and comparable case outcomes may reveal that a sentence is unusual, but cannot alone demonstrate manifest excess. Each offender must be sentenced by reference to their own individual circumstances.
  • Decisions about the extent to which sentences are accumulated or made concurrent are exercises of judicial discretion. An appellate court will not interfere unless an error in that exercise is demonstrated.
  • No error was established in the sentencing judge's totality assessment, even where three serious offences committed within about one month resulted in a continuous period of incarceration. The sentencing judge was well aware of the factual overlap and addressed it expressly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1), 59(2), 111(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases
- Betts v The Queen [2016] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Dyer v R [2011] NSWCCA 185
- Kennedy v R [2013] NSWCCA 19
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Mitropoulos [2004] NSWCCA 402
- R v Togher [2012] NSWDC 276
- Sabongi v R [2015] NSWCCA 25