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Court of Criminal Appeal 10 May 2017

R v Nolan

[2017] NSWCCA 91

Assault & violence
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE NEED FOR GENERAL DETERRENCE SENTENCE MANIFESTLY INADEQUATE SENTENCE

Citation: R v Nolan [2017] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 10 May 2017
Judges: Hoeben CJ at CL, Price J, Fullerton J

Background

The respondent pleaded guilty in the District Court to one count of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period of seven years. The victim was a seven-month-old infant whom the respondent was babysitting on the night of 23 September 2014, having been entrusted with the child's care by his parents.

During that evening, the infant suffered catastrophic and multiple injuries including bilateral skull fractures, severe retinal damage consistent with violent shaking, extensive brain injury, posterior rib fractures, ankle fractures, and an adult bite mark. The child initially required life support and came close to death. He survived but was left with permanent and debilitating conditions including cerebral palsy, cortical blindness, epilepsy, and a movement disorder, all carrying a poor prognosis and ongoing risk to his life.

The sentencing judge in the District Court, after applying a ten per cent discount for the utilitarian value of the guilty plea, imposed a total sentence of 12 years and 6 months with a non-parole period of 8 years and 6 months. The Director of Public Prosecutions appealed on the grounds that the sentence was manifestly inadequate and that the sentencing judge had erred in characterising the offence's objective seriousness.

  • Whether the sentencing judge erred by finding the offence fell only in the "high range" of objective seriousness, rather than the worst category of offences.
  • Whether the sentence imposed was manifestly inadequate.
  • Whether, if error were established, the Court of Criminal Appeal should exercise its residual discretion to re-sentence rather than allow the original sentence to stand.

Decision

The Court of Criminal Appeal unanimously allowed the Crown appeal. Price J (with whom Hoeben CJ at CL and Fullerton J agreed) found that the sentencing judge had erred in his assessment of objective seriousness. The injuries inflicted were among the most serious the offence could produce: they were multiple, deliberate, sustained, and inflicted on a wholly defenceless and trusting infant, resulting in permanent and life-threatening disabilities. The Court found the offending fell at or near the worst category of such offences.

The Court held that the resulting sentence was manifestly inadequate. Price J identified that the sentencing judge had given insufficient weight to general deterrence and the protection of infants from those entrusted with their care. The need to deter others from committing serious acts of violence against vulnerable children in their care was a weighty sentencing consideration that the original sentence failed to reflect appropriately.

On the question of residual discretion, the Court declined to allow the inadequate sentence to stand. The Crown had neither contributed to the error nor delayed the appeal. The Court noted that public confidence in the justice system would not be served by allowing a manifestly inadequate sentence to remain, and that the decision would provide guidance to sentencing judges on the weight to be given to the protection of infants.

The Court re-sentenced the respondent with an undiscounted starting point of 17 years, reduced by ten per cent for the guilty plea. The respondent's time in protective custody was taken into account as a hardship factor, consistent with the approach taken below. No special circumstances were found, as the balance of term was sufficient for rehabilitation and reintegration purposes.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed in the District Court on 6 December 2016 quashed.
  • Respondent re-sentenced to imprisonment for 15 years and 3 months, comprising a non-parole period of 11 years and 6 months commencing 24 October 2014 and expiring 23 April 2026, with a balance of term of 3 years and 9 months commencing 24 April 2026 and expiring 23 January 2030.
  • Earliest eligible parole date: 23 April 2026.

Key Takeaways

  • The Court of Criminal Appeal held that offending involving multiple serious injuries deliberately inflicted on a seven-month-old infant in the offender's care fell at or near the worst category of causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900.
  • A sentencing judge's failure to give adequate weight to general deterrence and the protection of vulnerable infants can constitute an error warranting appellate intervention.
  • In determining whether to exercise the residual discretion against re-sentencing, the court will consider whether the Crown contributed to or delayed the appeal; where it did not, public confidence in the justice system weighs in favour of correcting a manifestly inadequate sentence.
  • Serving a sentence in protective custody remains a relevant factor going to the harshness of imprisonment and may be taken into account in assessing the appropriate sentence length.
  • Where an undiscounted starting point is identified on re-sentencing, the same discount for a guilty plea applied below will generally be applied consistently on appeal unless there is reason to depart.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 2(k), 2(l), 21A(2)(g), 21A(2)(ib), 21A(3)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Little v R [2010] NSWCCA 210
- Lowndes v The Queen (1999) 195 CLR 655; [1999] HCA 29
- R v Barker [2016] NSWCCA 193
- R v Kilic (2016) 339 ALR 229; [2016] HCA 48
- R v Mitchell, R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296
- R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unreported)