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Court of Criminal Appeal 6 November 2019

Mansfield v R

[2019] NSWCCA 266

Assault & violence
CRIME SENTENCE APPEAL PAROLE PERIOD OF 2 YEARS AND 3 MONTHS WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL ALLOWED SENTENCE

Citation: Mansfield v R [2019] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 6 November 2019
Judges: Gleeson JA, Harrison J, Cavanagh J

Background

The appellant was employed as a smash repairer at a panel shop in North Manly. On 11 December 2015, his employer summoned him to the office to discuss his work performance and gave him four weeks to find another job. The appellant became upset and carried out what the sentencing judge described as a sustained and vicious attack, striking the employer repeatedly to the head. The victim lost consciousness, sustained lacerations requiring sutures, contusions to the brain, and continued to experience dizziness, numbness, and cognitive symptoms after the incident.

The appellant pleaded guilty in the Local Court to reckless wounding contrary to s 35(4) of the Crimes Act 1900, which carries a maximum penalty of 7 years' imprisonment and a standard non-parole period of 3 years. A further offence of stalking and intimidation (arising from threatening remarks made to the victim after the assault) was taken into account on a Form 1, meaning it was considered at sentencing without a separate conviction being recorded.

At sentencing in the District Court in September 2017, the judge imposed a total term of 4 years and 3 months with a non-parole period of 2 years and 6 months. The appellant sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether the sentence of 4 years and 3 months (with a 2 year and 6 month non-parole period) was manifestly excessive in all the circumstances
  • Whether the sentencing judge gave adequate weight to the appellant's subjective circumstances, including his mental health history, below-average intellectual functioning, and significant childhood trauma
  • Whether the finding that the offence was significantly above mid-range of objective seriousness was appropriate given the nature of the injuries sustained

Decision

The Court of Criminal Appeal found the sentence manifestly excessive and allowed the appeal. The Court held that a starting point of 5 years and 8 months (from which the sentencing judge had worked) was not warranted for an offence that resulted in what the Court characterised as a relatively minor wound, notwithstanding the sustained and aggressive nature of the attack.

The Court acknowledged the aggravating features: the appellant was on conditional liberty at the time (he was subject to a good behaviour bond for a prior common assault), and the stalking and intimidation offence appeared on the Form 1. However, the Court considered these factors did not justify the length of the sentence actually imposed.

The Court placed particular weight on the appellant's subjective circumstances. These included a diagnosis of bipolar disorder, below-average intellectual functioning (with 91 percent of the population scoring higher on composite testing), a history of childhood sexual abuse and a difficult family background, and engagement with psychological treatment and anger management since the offence. The Court found that consideration of his largely insignificant criminal history and mental illness further supported the conclusion that the sentence was unjust and plainly unreasonable.

At the conclusion of the hearing, the Court ordered the appellant's immediate release on unconditional bail, anticipating that the appeal would succeed and noting it would have been inappropriate for him to remain in custody given his non-parole period was due to expire within four months.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Frearson DCJ on 7 September 2017 quashed
  • In lieu thereof, the appellant sentenced to a non-parole period of 2 years commencing 7 September 2017 and expiring 6 September 2019, with a balance of term of 1 year expiring 6 September 2020

Key Takeaways

  • A starting point of 5 years and 8 months for a reckless wounding conviction producing relatively minor physical injuries was found to be unjust and plainly unreasonable, even where the attack was sustained and the offender was on conditional liberty at the time.
  • Aggravating factors such as conditional liberty and a Form 1 offence did not, in combination, justify the length of the original sentence when weighed against significant mitigating subjective circumstances.
  • Where a sentencing court finds an offence to be significantly above mid-range, the Court of Criminal Appeal will still scrutinise whether the ultimate sentence reflects an appropriate synthesis of all objective and subjective factors.
  • Mental illness, childhood trauma, and below-average intellectual functioning were treated as meaningful mitigating factors that the original sentence failed to give sufficient weight.
  • The Court of Criminal Appeal confirmed its power to release an appellant on bail pending publication of reasons where the non-parole period is imminent and the appeal is assessed as likely to succeed.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), s 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 21A(2)(j), 33
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)

Cases
- Berryman v R [2017] NSWCCA 297
- Ciaron McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Mun v R [2015] NSWCCA 234
- R v Hemsley [2004] NSWCCA 228
- R v Israil [2002] NSWCCA 255
- Tweeddale v R [2012] NSWCCA 99
- Xue v R [2017] NSWCCA 137