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Court of Criminal Appeal 7 April 2017

Lewin v R

[2017] NSWCCA 65

Assault & violence
CRIMINAL LAW SENTENCE APPEAL APPEAL DISMISSED

Citation: Lewin v R [2017] NSWCCA 65
Court: Court of Criminal Appeal, NSW
Date: 7 April 2017
Judge(s): Simpson JA, Walton J, Button J (judgment by Button J, with Simpson and Walton JJ agreeing)

Background

The applicant was convicted by jury of one count of reckless wounding causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW), following an incident at a social gathering in western Sydney on 27 December 2012. Then aged 18 years and 9 months, the applicant smashed an empty bottle into the face of a 17-year-old guest after a comment was made about the applicant's father. The victim suffered serious facial fractures, a swollen-shut eye, broken teeth, and lasting vision impairment.

The applicant's conduct both before and during the proceedings was marked by significant inconsistency. He initially fled the scene, gave police a false account, personally apologised to the victim and promised to plead guilty, then entered a plea of not guilty at trial. His trial counsel put to the victim that he had mistakenly identified which twin had apologised to him at a hotel.

On sentence, the applicant's position shifted again. A psychological report was tendered which recorded, among other things, that he had in fact been drinking heavily on the night (contradicting his trial position), that he had feared his intoxicated father was about to be assaulted, and that he displayed symptoms of PTSD. The sentencing judge, Knox SC DCJ, imposed a head sentence of 3 years and 9 months with a non-parole period of 2 years and 3 months. The applicant then sought leave to appeal.

  • Whether the sentencing judge erred in his approach to the psychological evidence, including the PTSD diagnosis, given that significant parts of the history provided to the psychologist had been rejected at trial
  • Whether the sentencing judge placed undue weight on a previous sentence appeal decision (Reberger v R), particularly given that the sentence ultimately imposed was identical to that imposed in that case

Decision

Ground 1: The psychological evidence and PTSD diagnosis

The Court found no error in the sentencing judge's treatment of the psychological report. His Honour had recognised that the report was substantially based on a history given by the applicant, and that key parts of that history were either contradicted by or unsupported by the evidence at trial. The sentencing judge was entitled to give the report limited weight in those circumstances, and the Court found the approach taken was careful and well-reasoned rather than dismissive.

Button J identified several compounding difficulties with the PTSD diagnosis: it was partly grounded in a version of events rejected by the jury; the history given to the psychologist was internally inconsistent in places; the applicant had not given sworn evidence to support that history on sentence; and the assignment of causation between the alleged PTSD and the offending was itself tentative. The Court held the sentencing judge was perfectly entitled to approach the report with caution.

Ground 3: Reliance on Reberger v R

The applicant argued that the detailed treatment of Reberger v R in the remarks on sentence, combined with the coincidence that both sentences were identical, demonstrated that the sentencing judge had effectively used that case as a template rather than engaging in an independent assessment.

The Court rejected this squarely. Button J noted that the remarks on sentence were comprehensive, spanning 23 pages and addressing all relevant objective and subjective factors in detail. The Court observed that Reberger had involved a plea of guilty (with an accompanying discount), meaning the starting point for the head sentence was entirely different. Additionally, the sentencing judge had explicitly identified and considered both the similarities and differences between the two cases. Reviewing nine decisions in comparable matters and giving one more detailed analysis than the others was, the Court found, entirely appropriate.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge may give limited weight to a psychological report where the history underpinning the diagnosis was partly contradicted by the jury's verdict and was not supported by sworn evidence from the offender at the sentence proceedings.
  • Where the history provided to an expert witness is inconsistent with findings made at trial, the Court of Criminal Appeal confirmed it is open to a sentencing judge to treat the resulting diagnosis with considerable caution.
  • The mere fact that a sentence imposed matches a sentence imposed in an earlier comparable case does not, of itself, establish that the sentencing judge improperly deferred to that earlier decision rather than conducting an independent assessment.
  • In dismissing the appeal, the Court emphasised that detailed and reflective remarks on sentence, which expressly identify both similarities and differences with comparable cases, are inconsistent with a finding that the judge adopted a "capricious shorthand" based on the earlier decision.
  • Inconsistent conduct by an offender across the course of proceedings, including shifting accounts before police, at trial, and on sentence, forms part of the factual landscape a sentencing judge is entitled to weigh when assessing remorse and other subjective factors.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2) (reckless wounding causing grievous bodily harm; maximum penalty 10 years; standard non-parole period 4 years)

Cases:
- Aslan v R [2014] NSWCCA 114
- Engert v R (1995) 84 A Crim R 67
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- Reberger v R [2011] NSWCCA 132
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54