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7
Court of Criminal Appeal 20 April 2017

Jeffree v R

[2017] NSWCCA 72

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW ROLE OF GENERAL DETERRENCE

Citation: Jeffree v R [2017] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 20 April 2017
Judges: Beazley P (Walton J and R A Hulme J agreeing)

Background

The applicant pleaded guilty in the District Court to a series of firearm, assault, and property damage offences arising from a neighbourhood dispute in November 2014. During the dispute, the applicant retrieved a home-made pistol, fired it into a neighbour's car while the neighbour was inside, attempted to fire it again at the neighbour, struck the neighbour on the head with the pistol butt, pointed the weapon at the neighbour's father, and later smashed the car's windows with a sickle hook.

The sentencing judge imposed an aggregate sentence of 9 years and 9 months with a non-parole period of 5 years, after applying a 25 per cent discount for the guilty pleas. Indicative sentences for individual counts totalled 14 years and 3 months before the aggregate was struck.

The applicant sought leave to appeal against sentence on three grounds, arguing that the internal accumulation within the aggregate sentence revealed a totality error, and that the sentencing judge had failed to assess his moral culpability and personal vulnerabilities in light of significant mental health and physical disabilities.

  • Whether the identical three-month accumulation applied to each offence, regardless of differing seriousness, demonstrated a totality error in the aggregate sentence.
  • Whether the sentencing judge failed to properly assess the applicant's moral culpability in light of evidence of his mental condition.
  • Whether the sentencing judge failed to assess how the applicant's physical and mental vulnerabilities should affect the overall sentence, including the weight given to general deterrence.

Decision

On ground 1, the Court rejected the argument that identical accumulation periods for offences of different seriousness must, of themselves, constitute error. The applicant's complaint rested on two premises: first, that the relevant offences differed materially in objective seriousness; and second, that any difference in seriousness must produce a corresponding difference in the accumulation period. Beazley P found neither premise was sound as a free-standing proposition. In any event, because the sentencing judge imposed an aggregate sentence, the critical question was whether that aggregate properly reflected the totality of the criminality, not how internal accumulation was allocated between counts.

On grounds 2 and 3, the Court confirmed that the principles from Aslan v R concerning mental illness and intellectual impairment are not absolute rules. The question in each case is whether the particular condition actually had an impact on the sentencing process. The sentencing judge had considered the applicant's condition but concluded that general deterrence remained a very important factor, particularly given the serious nature of firearms offences and the relevance of deterrence where members of the community may have a reduced capacity to control their behaviour. The Court found no error of principle in that approach.

Leave to appeal was granted, but the appeal was dismissed. No error in the exercise of the sentencing discretion was established on any ground.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that there is no general rule requiring different accumulation periods for offences of differing seriousness; totality of criminality governs the aggregate sentence as a whole.
  • Where an aggregate sentence is imposed, the relevant inquiry is whether the total sentence properly reflects overall criminality, not how internal accumulation is distributed among individual counts.
  • The principles from Aslan v R regarding the sentencing effect of mental illness and intellectual impairment are not absolute. Each case requires the court to examine the specific facts to determine whether the condition actually affects the sentencing exercise.
  • General deterrence can remain a significant sentencing consideration even where an offender has mental health vulnerabilities, particularly in the context of serious firearms offences.
  • No error arises merely from a sentencing judge emphasising general deterrence in relation to offenders with reduced capacity for behavioural control, provided that approach is grounded in the circumstances of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A(1)(b), 59(1), 61, 93G(1)(b), 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166(1)(b), 167
- Firearms Act 1996 (NSW), ss 7A(1), 36(1), 65(3)

Cases
- Aslan v R [2014] NSWCCA 114
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Laspina v R [2016] NSWCCA 181
- Mill v The Queen (1988) 166 CLR 59
- R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130