Citation: Longworth v R [2017] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 2 June 2017
Judges: Macfarlan JA (with Harrison J and Schmidt J agreeing)
Background
The applicant was tried in the District Court on a charge of causing grievous bodily harm with intent and an alternative charge of recklessly causing grievous bodily harm. He was acquitted of the primary charge and convicted of the alternative. He had previously offered to plead guilty to the alternative charge.
The offence arose in September 2013 after the applicant received distressing news about his recently deceased father's ashes and spent the evening drinking heavily with friends. When the group arrived at a second bar, the victim, a security guard, refused the applicant entry on account of his intoxication. A short time later, while the victim was facing away and speaking with other patrons, the applicant struck him with a single heavy blow to the head. The victim suffered severe brain injury.
The District Court sentenced the applicant to 4 years and 10 months imprisonment with a non-parole period of 3 years, allowing a 25% discount for the early offer to plead guilty. The sentencing judge found the victim's vulnerability as a security guard to be an aggravating factor and made a finding of special circumstances given the applicant's mental health needs.
Legal Issues
- Whether the sentencing judge erred in finding that the victim, as a security guard, was "vulnerable" within the meaning of s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether the sentencing judge erred in failing to treat procedural delay as a mitigating factor
- Whether the sentencing judge failed to give proper weight to the applicant's mental condition (depression)
- Whether the sentence was manifestly excessive
Decision
Vulnerability of the victim. The Court confirmed that a security guard performing duties at a licensed venue can be considered a "vulnerable" victim for the purposes of s 21A(2)(l). The section lists occupation as an example of a vulnerability, and the Court found that the victim's role placed him in a position where he was obliged to confront intoxicated persons and deny them entry, without the ability to protect himself. Provisions of the Liquor Act 2007 (NSW) reinforced this conclusion, as they imposed duties on security staff to refuse entry to intoxicated patrons and to take steps to prevent alcohol-related harm. This statutory context meant the victim was required to place himself in an inherently exposed position.
Delay. The applicant argued that the period between charge and sentence constituted a mitigating factor. The Court rejected this ground, finding that the delay was attributable to the normal processes of a contested criminal proceeding, including committal, and not to any systemic or unexplained failure. No error was established on this point.
Mental condition. The sentencing judge had expressly acknowledged the applicant's depression, accepted that it contributed to the offence, and applied it in mitigation. The Court found no failure to take the mental condition into account. The judge's conclusion that the condition did not significantly diminish the weight to be given to general deterrence, given the nature of the alcohol-fuelled violence involved, was consistent with established principle.
Manifest excess. Comparing the sentence to others imposed for the same offence, and taking into account the severity of the victim's injuries, the 25% discount, the applicant's good character, the finding of special circumstances, and the maximum penalty of 10 years, the Court found the sentence was within the permissible range and not manifestly excessive.
Orders Made
- The application for leave to appeal was dismissed.
Key Takeaways
- Under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a security guard's occupation can constitute a source of vulnerability for sentencing purposes, particularly where statutory duties require the guard to confront and refuse entry to intoxicated persons.
- The Liquor Act 2007 (NSW) obligations placed on licensed venue security staff were relevant to assessing that vulnerability, since those obligations compel exposure to exactly the kind of risk that materialised in this offence.
- Procedural delay attributable to the ordinary conduct of contested criminal proceedings, including committal, does not automatically constitute a mitigating factor at sentencing.
- Where a sentencing judge expressly acknowledges a mental health condition, accepts it as a contributing factor, and reflects it in the sentence, no error arises merely because the condition did not further reduce the weight given to general deterrence in a case of serious alcohol-fuelled violence.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that comparison sentences do not mark the outer bounds of permissible sentencing discretion, citing Barbaro v The Queen (2014) 253 CLR 58 and R v Kilic (2016) 91 ALJR 131.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 21A(2)(n)
- Liquor Act 2007 (NSW), ss 73, 74, 77
Cases
- Aloniu v R [2017] NSWCCA 74
- Arnold v R [2011] NSWCCA 150
- Barbaro v The Queen (2014) 253 CLR 58
- Blackwell v R [2012] NSWCCA 227
- Bugmy v The Queen (2013) 249 CLR 571
- Campbell-Stephen v Regina [2010] NSWCCA 204
- Daniels v R [2016] NSWCCA 35
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Dosen v R [2010] NSWCCA 283
- Fahda v R [1999] NSWCCA 267
- Hili v The Queen (2010) 242 CLR 520
- Hona v R [2016] NSWCCA 119
- Markarian v The Queen (2005) 228 CLR 357
- R v Dungay [2012] NSWCCA 197
- R v Kilic (2016) 91 ALJR 131
- R v Loveridge (2014) 243 A Crim R 31
- R v Tadrosse (2005) 65 NSWLR 740
- Reberger v R [2011] NSWCCA 132
- Sabra v R [2015] NSWCCA 38
- Stokes v The Queen (2008) 185 A Crim R 74