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Court of Criminal Appeal 12 October 2018

Wanat v R

[2018] NSWCCA 219

Assault & violenceTheft & property
CRIME SENTENCE APPEAL SENTENCE NOT EXCESSIVE NO POINT OF PRINCIPLE

Citation: Wanat v R [2018] NSWCCA 219
Court: NSW Court of Criminal Appeal
Date: 12 October 2018
Judges: Simpson AJA, Johnson J, R A Hulme J

Background

The appellant pleaded guilty in the District Court at Campbelltown to two offences arising from a single incident in March 2017. Both offences concerned the same victim, a man who lived in a bed-sit apartment at Ashcroft, and occurred within a short period of each other on the evening of 28 March 2017.

The first offence was assault occasioning actual bodily harm in company, arising from a confrontation involving the appellant, a co-offender, and the victim over an alleged debt. The second, more serious offence was aggravated break, enter and commit a serious indictable offence (namely, assault occasioning actual bodily harm), after the appellant forced his way back into the victim's apartment holding a length of wood and threw it at the victim as he left.

Judge Pickering imposed an aggregate sentence of 2 years 8 months with a non-parole period of 1 year 6 months, commencing 31 May 2017. The appellant sought leave to appeal, arguing that the non-parole period of 18 months was excessive and seeking its reduction to 16 months.

  • Whether the overall aggregate sentence of 2 years 8 months was excessive in all the circumstances.
  • Whether the non-parole period of 18 months was excessive, having regard to the appellant's personal circumstances, including his mental illness and history of substance abuse.
  • Whether the sentencing judge erred in the exercise of his sentencing discretion.

Decision

The Court, in a judgment delivered by R A Hulme J (with Simpson AJA and Johnson J agreeing), found no error in the primary judge's exercise of sentencing discretion. The overall sentence of 2 years 8 months was plainly open on the facts, given the objective seriousness of the offences, the appellant's lengthy criminal history spanning assaults, reckless wounding, and stalk/intimidate offences, and the mitigating effect of his early guilty pleas, which attracted a 25 per cent discount.

On the non-parole period, the Court noted that the sentencing judge had already found "special circumstances" in the appellant's favour, reducing the non-parole period from the statutory default of 75 per cent of the overall term (which would have produced a non-parole period of 2 years) to 56.25 per cent, yielding 18 months. The Court found no basis for a more substantial reduction.

The appellant raised post-sentence matters in oral submissions, including completion of the EQUIPS Addiction program and continued medication compliance. The Court noted that it is generally confined to assessing error in the proceedings below, and that no recognised basis existed to take those subsequent events into account. The Court nonetheless commended the appellant for his rehabilitation efforts.

The Court described the sentence, including the non-parole period, as "quite unremarkable" having regard to all the circumstances, and refused leave to appeal.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • No error was established in the sentencing judge's exercise of discretion, and the aggregate sentence of 2 years 8 months was well within the range open on the facts.
  • A finding of "special circumstances" is not an automatic trigger for the maximum possible reduction of the non-parole period; the extent of any reduction remains a matter of judicial discretion.
  • Where an appellant seeks to rely on post-sentence events (such as program completion or continued medication compliance), the Court of Criminal Appeal has only limited bases on which to consider such material, and those bases did not arise here.
  • The mitigating weight of mental illness and substance dependence does not, of itself, produce a sentence below an otherwise appropriate range, particularly where the offender has a substantial prior history of similar offending.
  • In dismissing the appeal, the Court confirmed that the standard non-parole period of 5 years for the aggravated break and enter offence under s 112(2) of the Crimes Act 1900 formed part of the sentencing framework, against which the indicative sentence of 2 years 3 months (after the guilty plea discount) was assessed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 59(2) (assault occasioning actual bodily harm in company, maximum 7 years), 112(2) (aggravated break, enter and commit serious indictable offence, maximum 20 years, standard non-parole period 5 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2B) (special circumstances)

Cases:
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145