Citation: Lunn-Reid v R [2018] NSWCCA 110
Court: Court of Criminal Appeal, New South Wales
Date: 8 June 2018
Judge(s): Hoeben CJ at CL, Rothman J, Button J (judgment delivered by Button J)
Background
The applicant had accumulated a series of sentences across multiple convictions spanning 2011 to 2015, including two counts of recklessly causing grievous bodily harm in company, an affray, and, most recently, wounding with intent to cause grievous bodily harm and assault occasioning actual bodily harm. Each of these offences involved serious violence. The applicant had a documented history of schizophrenia, and psychiatric evidence at each sentencing indicated he was acutely psychotic during several of the offences. Multiple judges at first instance found special circumstances in light of his mental health and the nature of his custodial arrangements.
The applicant sought leave to appeal two sentences imposed by Judge McLoughlin in the District Court on 18 August 2016 in respect of the most recent offences. The sentences had been structured cumulatively, layered onto earlier sentences that were still running. This created a complex "cascading" sentence structure, which the Court of Criminal Appeal addressed by way of an annexure diagram.
The grounds of appeal challenged the adequacy of the discount applied for guilty pleas and the failure to give practical effect to a finding of special circumstances, given the accumulated sentence structure.
Legal Issues
- Whether the sentencing judge erred in applying discounts for pleas of guilty, including by failing to properly account for the applicant's contrition.
- Whether the sentencing judge erred by finding special circumstances but then failing to give that finding any practical effect, given that cumulation of the sentences produced a ratio between the total non-parole period and the total head sentence that exceeded the standard statutory ratio of 75%.
Decision
The Court of Criminal Appeal upheld the appeal on both grounds, though the practical remedy was confined. On the plea discount issue, the Court found the sentencing judge had not properly applied the relevant discount, including by failing to give adequate weight to the applicant's expression of contrition.
On the special circumstances ground, the Court found the sentencing judge had identified special circumstances but had not translated that finding into a meaningful reduction of the non-parole period relative to the head sentence. The cumulative effect of the sentences meant the ratio of non-parole period to head sentence exceeded the standard 75% statutory ratio. Where a judge finds special circumstances, that finding must produce a real adjustment to the non-parole period, not merely a nominal one.
The Court acknowledged, however, that the re-sentencing exercise involved significant countervailing considerations. The applicant remained a dangerous offender whose schizophrenia, combined with drug and alcohol use, presented an ongoing risk to the community. Multiple forensic psychiatrists had given evidence of this at the original sentencing proceedings. The Court declined to reduce either head sentence or the non-parole period for the assault occasioning actual bodily harm. It reduced only the non-parole period for the wounding offence, to bring the overall structure into conformity with the special circumstances finding.
The practical result of the reduction was modest: the applicant's earliest possible release date moved from 16 February 2023 to 25 May 2022, an improvement of less than eight months. The Court was careful to note that actual release on the earlier date remained entirely a matter for the State Parole Authority.
Orders Made
- Leave to appeal granted.
- Appeal allowed with respect to the sentence for wounding with intent to cause grievous bodily harm imposed by Judge McLoughlin on 18 August 2016.
- That sentence quashed.
- The applicant resentenced for that offence to a head sentence of 8 years and 4 months, with a non-parole period of 4 years, 11 months and 9 days, commencing 17 June 2017 and expiring 25 May 2022, followed by a parole period of 3 years, 4 months and 21 days, expiring 16 October 2025.
- Earliest eligible release date: 25 May 2022.
Key Takeaways
- A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) must produce a meaningful reduction in the non-parole period relative to the head sentence; a nominal finding that leaves the overall ratio above 75% does not give effect to the statutory purpose.
- Where sentences are cumulative, the sentencing court must assess the ratio of total non-parole period to total head sentence across the accumulated structure, not merely within each individual sentence in isolation.
- Guilty plea discounts must reflect all relevant utilitarian and subjective factors, including genuine contrition, and an error in that calculus can constitute a ground of appeal.
- In resentencing a violent offender with schizophrenia, the Court of Criminal Appeal treated the applicant's ongoing dangerousness and the need to protect the community as significant countervailing considerations that limited the extent of any reduction, even after sentencing error was established.
- Upholding an appeal does not automatically produce a substantial reduction in sentence: here, the practical benefit to the applicant was less than eight months' earlier eligibility for parole, with actual release remaining subject to the State Parole Authority's discretion.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Engert (1995) 84 A Crim R 67
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104
- Veen v The Queen (No.2) [1988] HCA 14; (1988) 164 CLR 465