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Court of Criminal Appeal 7 June 2019

Stines v R

[2019] NSWCCA 115

Assault & violenceTheft & property
CRIME APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Stines v R [2019] NSWCCA 115
Court: Court of Criminal Appeal, NSW
Date: 7 June 2019
Judge(s): Leeming JA (leading judgment); Hamill J and N Adams J (agreeing)

Background

The applicant pleaded guilty to aggravated robbery with wounding under s 96 of the Crimes Act 1900 (NSW). In the early hours of 28 January 2018, he rode his bicycle to Chester Hill Train Station, approached an isolated 56-year-old man on the platform, and struck him at least six times over the head with a serrated metal pole before stealing his wallet and backpack. The victim was hospitalised and required multiple staples to seal six wounds to his scalp.

The applicant was sentenced in the District Court to 6 years and 9 months' imprisonment, with a non-parole period of 4 years and 6 months. That sentence already reflected a 25% utilitarian discount for the early guilty plea, giving a notional starting point of 9 years.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: that insufficient weight was given to his mild intellectual disability in reducing the objective seriousness of the offending, and that the sentence was manifestly excessive.

  • Whether the sentencing judge gave insufficient weight to the applicant's mild intellectual disability when assessing the objective gravity of the offence and the appropriate sentence.
  • Whether the resulting sentence of 6 years and 9 months (with a 4-year-and-6-month non-parole period) was manifestly excessive.

Decision

The Court of Criminal Appeal allowed the appeal and resentenced the applicant, though not on the basis that his intellectual disability had been treated incorrectly as a matter of principle. The primary judge had correctly identified the applicant's mild intellectual disability and its associated cognitive deficits, including poor problem-solving, poor consequential thinking, and impulsivity. The Court confirmed that the disability's impact on the sentence was "only slight," consistent with the sentencing judge's approach.

The appeal succeeded on the separate ground of manifest excess. The Court found that insufficient weight had been given to a serious injury the applicant suffered while in custody at the hands of corrective services officers, along with the ongoing consequences of that injury. His involvement in the prosecution and dismissal of some of the officers responsible was also identified as a matter warranting greater weight in his favour.

Applying a notional starting point of 7 years (reduced from the 9 years adopted below), and applying the 25% guilty plea discount, the Court arrived at a head sentence of 5 years and 3 months. The applicant's intellectual disability, criminal history, and drug exposure were held to justify a finding of special circumstances, warranting a non-parole period shorter than the statutory two-thirds ratio.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; sentence imposed on 24 August 2018 set aside.
  • Applicant resentenced to imprisonment for 5 years and 3 months, commencing 24 August 2018 and expiring 23 November 2023.
  • Non-parole period of 3 years and 6 months, commencing 24 August 2018 and expiring 23 February 2022.
  • Earliest eligible date for release on parole: 24 February 2022.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a mild intellectual disability, while a relevant mitigating factor in sentencing, may have only a slight impact on the outcome where the connection between the disability and the specific offending is limited.
  • A serious injury sustained in custody, and the consequences flowing from the offender's role in related disciplinary proceedings against correctional officers, can constitute significant mitigating circumstances deserving substantial weight in sentencing.
  • Where a sentencing court gives insufficient weight to significant mitigating factors, the resulting sentence may be set aside as manifestly excessive even if the assessment of objective seriousness was otherwise sound.
  • Special circumstances justifying a longer-than-standard parole period can be established by a combination of factors including intellectual disability, criminal history, and a history of serious drug use.
  • The applicable notional starting point, before any guilty plea discount, formed a central part of the appellate analysis, with the Court of Criminal Appeal substituting a starting point of 7 years for the 9 years adopted by the sentencing judge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 96, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Aslan v R [2014] NSWCCA 114
- Kandemir v R [2018] NSWCCA 154
- Ryan v Regina [2017] NSWCCA 209
- Yun v R [2017] NSWCCA 317
- Viausu v R [2017] NSWCCA 71
- Zhao v R [2016] NSWCCA 179
- R v Israil [2007] NSWCCA 255
- R v Matthews [2004] NSWCCA 112; 145 A Crim R 445
- R v Wright (1997) 93 A Crim R 48
- Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61