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Court of Criminal Appeal 8 November 2019

Crimmins v R

[2019] NSWCCA 268

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE RECKLESSLY CAUSING GRIEVOUS BODILY HARM WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Crimmins v R [2019] NSWCCA 268
Court: Court of Criminal Appeal
Date: 8 November 2019
Judge(s): Bathurst CJ, Johnson J, Fullerton J (judgment of Fullerton J)

Background

The applicant pleaded guilty in the Local Court to one count of recklessly causing grievous bodily harm under s 35(2) of the Crimes Act 1900 (NSW). He and the victim were long-standing friends who were sharing a unit at the time of the offence. Both men were 23 years old.

On the night of 28 May 2017, the applicant and victim attended a party together and became heavily intoxicated. The applicant was ejected from the party due to aggression. Following a lengthy argument with the victim, the applicant inflicted injuries that left the victim with a life-threatening subdural haemorrhage, intracerebral haemorrhage, and skull fracture requiring neurosurgery. The victim continues to suffer memory impairment and hearing and balance loss.

Wilson SC DCJ sentenced the applicant to 6 years' imprisonment with a non-parole period of 4 years, finding the objective seriousness of the offence to be in the mid to high range. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.

Legal Issues

  • Whether the sentencing judge erred in declining to find that the applicant was remorseful, and therefore failed to apply remorse as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentence of 6 years with a non-parole period of 4 years was manifestly excessive

Decision

Ground 1: Failure to find remorse

The sentencing judge declined to find remorse established because the applicant's evidence at sentencing included an account of the assault that sought to attribute part of the blame to the victim, undermining his claim to genuine acceptance of responsibility (at [24]-[25]). The Court of Criminal Appeal found no error in that reasoning. The applicant's written submissions did not identify any House v The King error in the exercise of the discretion, and no oral submissions were advanced in support of this ground (at [27]). To the extent the applicant argued on appeal that internalised remorse could still satisfy the statutory mitigating factor despite the delay and false accounts, Fullerton J found that the sentencing judge's comprehensive analysis had already accommodated that nuance (at [28]-[29]).

Ground 2: Manifest excess

The Court accepted that the sentencing judge's finding of mid to high objective seriousness was clearly open given the life-threatening and ongoing consequences of the injuries (at [31]). The applicant's account of the assault, given for the first time in his evidence, was characterised as implausible in light of objective evidence including cuts to his hands and blood on his clothing and body (at [32]). The emphasis on general deterrence and denunciation in the context of alcohol-fuelled violence was also confirmed as appropriate (at [33]). With remorse unavailable as a mitigating factor, the only favourable matters were prior good character and low likelihood of reoffending, both of which the Court found were adequately reflected in the sentence (at [35]). A sentence of 6 years with a non-parole period of 4 years, against a maximum of 10 years and a standard non-parole period of 4 years, was not manifestly excessive (at [36]).

Orders Made

  • Leave to appeal granted
  • The appeal is dismissed

Key Takeaways

  • A sentencing judge is entitled to decline a finding of remorse where the offender's evidence at sentence attributes part of the blame to the victim, even where the offender has pleaded guilty and expressed upset in court (at [24]-[25], [28]-[29]).
  • No error was established in refusing to treat remorse as a statutory mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) where the applicant failed to identify a House v The King error in the sentencing discretion and advanced no oral submissions on the ground (at [27]).
  • Judicial sentencing statistics showing a sentence at the top of the statistical range for an offence do not, of themselves, establish that a sentence is manifestly excessive; the question remains whether the sentence is unreasonable or plainly unjust in the particular circumstances (at [34]).
  • Under the framework applied in R v Loveridge, sentencing for offences involving alcohol-fuelled violence appropriately gives considerable weight to general deterrence and denunciation (at [33]).
  • Where the only mitigating factors are prior good character and low likelihood of reoffending, the Court of Criminal Appeal confirmed that a sentence of 6 years with a non-parole period of 4 years for recklessly causing grievous bodily harm causing life-threatening injuries was within the permissible range (at [35]-[36]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v R [2018] NSWCCA 2
- R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31