Citation: Sims v R [2019] NSWCCA 232
Court: NSW Court of Criminal Appeal
Date: 27 September 2019
Judges: Basten JA; Hamill J; Lonergan J (reasons delivered by Lonergan J)
Background
The applicant was convicted of serious offences committed in March 1996: maliciously inflicting grievous bodily harm with intent, and attempted sexual intercourse without consent in circumstances of aggravation (the aggravating circumstance being the infliction of actual bodily harm). A further act of indecency was taken into account on a Form 1. The victim, a 19-year-old woman, suffered catastrophic facial fractures, a closed head traumatic brain injury, and required 15 days of hospitalisation and multiple surgeries.
The offences were not attributed to the applicant until a DNA match in late 2015, nearly two decades after they occurred. He was arrested and extradited from South Australia in May 2016 and entered guilty pleas in April 2017. In February 2018, the District Court imposed an aggregate sentence of 15 years with a non-parole period of 10 years, incorporating a 12% discount for the utilitarian value of the guilty pleas.
The applicant sought leave to appeal the sentence on three grounds: that the sentencing judge wrongly found there was no evidence of rehabilitation, failed to take mental illness into account, and imposed a sentence that was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by finding no evidence of rehabilitation, in circumstances where the applicant had led an offence-free life and held stable employment for approximately two decades after the 1996 offending.
- Whether the sentencing judge failed to take into account evidence of the applicant's mental illness when determining the sentence.
- Whether the aggregate sentence of 15 years (non-parole period 10 years) was manifestly excessive having regard to all relevant circumstances.
Decision
Rehabilitation: The Court of Criminal Appeal found no error in the sentencing judge's treatment of rehabilitation. The applicant had lived without further offending since 1996, but the Court noted a distinction between an absence of further offending and genuine rehabilitation. The sentencing judge acknowledged the long intervening period but was not satisfied that it constituted rehabilitation of the kind that would significantly mitigate the sentence, particularly given the gravity of the original offending and the applicant's conduct when interviewed by police.
Mental illness: The Court rejected the submission that the sentencing judge had ignored evidence of mental illness. The sentencing judge had considered the relevant evidence, including a psychological report, and concluded that any mental health condition did not causally explain or substantially mitigate the offending. The Court found no error in that approach.
Manifest excess: The Court examined the indicative sentences for each count individually. For count 1, the indicative sentence represented approximately half the maximum penalty, and the Court found this was appropriate given the extreme violence inflicted. For count 2, the Court rejected the proposition that an attempted offence necessarily attracts a substantially lower sentence than a completed offence, particularly where all preparatory acts had been completed and non-completion was entirely attributable to the offender's own involuntary response. The aggregate sentence of 15 years was held not to be manifestly excessive in the circumstances.
The Court granted leave to appeal, acknowledging the length and the unusual circumstances of a sentence imposed more than 20 years after the offending, but dismissed the appeal on all three grounds.
Orders Made
- Leave to appeal against the sentence imposed in the District Court on 21 February 2018 was granted.
- The appeal was dismissed.
Key Takeaways
- An offence-free period following serious offending does not automatically constitute rehabilitation for sentencing purposes. A sentencing court may distinguish between the mere absence of further offending and genuine rehabilitative change.
- Where a psychological report identifies a mental health condition but the sentencing court is not satisfied that the condition causally connected to or substantially mitigated the offending, no error arises from declining to give it significant weight.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an attempted sexual assault does not necessarily attract a materially lower sentence than a completed offence, especially where the attempt fails only because of an involuntary act of the offender and all other elements of the offence have been carried out.
- A guilty plea entered approximately a year after arrest attracted only a 12% utilitarian discount, reflecting that the plea was not entered at the earliest available opportunity.
- The unusual circumstance of sentencing occurring more than two decades after the offending was a factor the Court acknowledged warranted a grant of leave, but it did not, of itself, render an otherwise appropriate sentence manifestly excessive.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33, 61J, 61P
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23
Cases:
- Aoun v R [2011] NSWCCA 284
- Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232
- Peters v R [2013] NSWCCA 324
- R v Moon (2000) 117 A Crim R 497; [2000] NSWCCA 534