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Court of Criminal Appeal 24 July 2017

Smith v R

[2017] NSWCCA 175

Assault & violence
CRIMINAL LAW HELD NONE OF GROUNDS MADE OUT

Citation: Smith v R [2017] NSWCCA 175
Court: Court of Criminal Appeal, NSW
Date: 24 July 2017
Judges: Hoeben CJ at CL, Price J, Adamson J (all agreeing)

Background

The appellant pleaded guilty on the day of her scheduled jury trial to causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence arose from an incident at a Queanbeyan hotel in August 2014, during which she repeatedly kicked her ex-husband in the head while he was lying on the ground. The victim sustained a fractured jaw, lost a tooth, suffered a stroke, and was left legally blind in one eye.

The District Court sentenced the appellant to four years and three months imprisonment with a non-parole period of two years and one month. The sentencing judge applied a 15 per cent discount for the guilty plea, noting the plea's utilitarian value despite its lateness.

The appellant sought leave to appeal the sentence in the Court of Criminal Appeal, raising several grounds including the weight given to a psychologist's report, the sentencing judge's assessment of her motivation for the attack, and the size of the guilty plea discount.

  • Whether the sentencing judge erred in treating the contents of a psychologist's report with caution, given the appellant did not give sworn evidence
  • Whether the sentencing judge erred in his findings about the appellant's motivation for the attack
  • Whether a discount of only 15 per cent for the guilty plea was inadequate, with the appellant contending she should have received 25 per cent

Decision

On the psychologist's report, the Court confirmed that a sentencing judge is entitled to approach expert reports with caution where the underlying facts come from an unsworn account by the offender. Because the appellant did not give evidence, there was no sworn basis for the factual premises in the psychologist's report. The sentencing judge was not obliged to accept those premises as established facts.

On the motivation finding, the Court found no error. The sentencing judge's conclusion that the appellant attacked the victim out of animosity, rather than in response to any threat to herself or her children, was consistent with the CCTV footage. The appellant's alternative version of events was unsupported by sworn evidence and was contradicted by the footage.

On the guilty plea discount, the Court held that the 15 per cent discount was plainly within the sentencing judge's discretion. Under R v Thomson; R v Houlton, the appropriate discount generally falls between 10 and 25 per cent, with timing as the primary consideration. The Crown had submitted 10 per cent was appropriate given the lateness of the plea. The sentencing judge allowed 15 per cent, recognising the saving of court resources and the fact that a separate charge relating to another victim had been dropped. No error was demonstrated.

Leave to appeal was granted, but the appeal was dismissed on all grounds.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is entitled to treat the factual premises in expert reports with caution where the offender has not given sworn evidence to support those premises, consistent with The Queen v Olbrich (1999) 199 CLR 270.
  • Under R v Thomson; R v Houlton, the discount for a guilty plea is a matter of discretion for the sentencing judge, with timing of the plea being the primary consideration and the usual range being 10 to 25 per cent.
  • No error arises simply because a sentencing judge allows a lower discount than the appellant sought, provided the discount is within the recognised range and the judge's reasoning is sound.
  • Where an offender's version of events is inconsistent with objective evidence such as CCTV footage, and is not supported by sworn testimony, the sentencing judge is not required to act on that version.
  • Granting leave to appeal does not guarantee a favourable outcome: the Court of Criminal Appeal may grant leave and then dismiss the appeal on the merits, as occurred here.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35, 61
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 32

Cases
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54