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Court of Criminal Appeal 5 May 2017

Regina v AB

[2017] NSWCCA 88

Assault & violence
CRIMINAL LAW APPEAL SENTENCING WHETHER MANIFESTLY INADEQUATE WHETHER NON PAROLE PERIOD MANIFESTLY INADEQUATE

Citation: Regina v AB [2017] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 5 May 2017
Judge(s): Bathurst CJ (with R A Hulme J and Beech-Jones J agreeing)

Background

The respondent, a 20-year-old man, pleaded guilty to causing grievous bodily harm with intent (under s 33(1)(b) of the Crimes Act 1900 (NSW)), which carries a maximum of 25 years imprisonment and a standard non-parole period of 7 years. The offence arose from a premeditated attack on a man who had previously been in a relationship with the respondent's wife. Having learned the victim and his wife were meeting at a park, the respondent coordinated attendance with a co-accused via text messages expressing a clear intent to assault the victim.

At the park, the respondent struck the victim in the head with a baseball bat, causing him to lose consciousness. Both the respondent and the co-accused then kicked the victim. The victim suffered multiple skull fractures, bleeding to the brain, and permanent physical and cognitive deficits affecting his mobility, employment, and financial circumstances.

At sentencing in the District Court, the respondent received a total term of 6 years and 8 months with a non-parole period of only 3 years. The sentencing judge found the offence was well above the middle range of seriousness and took into account the respondent's mental health conditions (paranoid psychosis, ADHD, and residual PTSD symptoms), his guilty plea (attracting a 20% discount), and his undertaking to give evidence against his co-accused (attracting a 25% discount). Special circumstances were also found, reducing the non-parole period to 45% of the head sentence. The Crown appealed on the sole ground that the sentence was manifestly inadequate.

  • Whether the 20% discount for the guilty plea was excessive, particularly given that the sentencing judge may have factored in particular listing arrangements at Parramatta District Court.
  • Whether the 25% discount for assistance to authorities was excessive, where the respondent's statement was made after the co-accused had already been charged.
  • Whether the non-parole period was manifestly inadequate, given insufficient evidence of more onerous custodial conditions and an undue focus on rehabilitation over the objective seriousness of the offence.
  • Whether, even if error were established, the Court's residual discretion should be exercised to decline to interfere with the sentence.

Decision

Guilty plea discount: The Court found no error in the 20% discount. The plea was entered on or about arraignment, before any substantive steps had been taken in the District Court. The Court found nothing in the sentencing remarks to suggest the discount was improperly influenced by listing arrangements at Parramatta District Court.

Assistance to authorities discount: The Court also upheld the 25% discount for assistance. It noted that the value of the respondent's statement could only be properly assessed by reference to what other evidence the Crown already held implicating the co-accused. The Crown declined to indicate what that other evidence was, beyond refusing to concede it had none. In those circumstances, the sentencing judge was not shown to have erred.

Head sentence: Because no specific errors were established in relation to the plea or assistance discounts, the head sentence of 6 years and 8 months was not found to be manifestly inadequate. It was not unreasonably disproportionate to the nature and circumstances of the offence.

Non-parole period: The Court found the non-parole period of 3 years was manifestly inadequate. There was no evidence the respondent would serve his sentence in more onerous conditions than other prisoners, and the possibility he might need protective custody in the future was unsupported speculation. More fundamentally, the sentencing judge failed to ensure the non-parole period reflected the minimum time in custody required having regard to all sentencing purposes, including the objective seriousness of the offence and the need for general deterrence. The Court declined to exercise its residual discretion against intervening, partly to remind sentencing courts that varying the statutory ratio requires attention to objective criminality, not just rehabilitation and subjective circumstances. The non-parole period was increased to 4 years and 4 months.

Orders Made

  • Appeal allowed.
  • The original sentence was set aside.
  • The respondent was re-sentenced to a term of imprisonment commencing 30 September 2016, comprising a non-parole period of 4 years and 4 months and a balance of term of 2 years and 4 months, expiring 29 May 2023.
  • Earliest eligible release to parole: 29 January 2021.

Key Takeaways

  • A guilty plea discount of 20% for a plea entered at or around arraignment, before any other substantive steps in the District Court, is not excessive.
  • Where the Crown fails to disclose what other evidence it holds against a co-accused, a sentencing court cannot be shown to have erred in giving a meaningful discount for an offender's statement inculpating that co-accused.
  • Sentencing courts exercising the discretion to vary the statutory non-parole period ratio must balance rehabilitation and supervision needs against the objective gravity of the offence and the need for general deterrence. A failure to do so can render a non-parole period manifestly inadequate even where the head sentence is sound.
  • Any finding that custodial conditions will be more onerous for a particular offender must be supported by evidence. Speculation about possible future protective custody does not suffice.
  • In dismissing the residual discretion, the Court of Criminal Appeal reaffirmed that Crown appeals serve a principled function: laying down guidance for sentencing courts, not merely correcting individual outcomes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 33(1)(b)
- Criminal Appeal Act 1912 (NSW) s 5D
- Crimes (Administration of Sentence) Regulation 2014 (NSW) reg 218

Cases:
- CMB v The Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- R v GWM [2012] NSWCCA 240
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- R v Harris [2015] NSWCCA 81
- R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296
- R v Stunden [2011] NSWCCA 8