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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: NSW Court of Criminal Appeal
Date: 8 November 2019
Judges: Bathurst CJ, Johnson J, 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), arising from an incident on 28 May 2017. The victim was a close friend who had known the applicant since high school, and the two were flatmates at the time. Following a night of heavy drinking at a party, during which the applicant became aggressive and was ejected, an altercation occurred that left the victim with life-threatening brain injuries, a fractured skull, and ongoing cognitive, language, and hearing impairments.

The sentencing judge in the District Court imposed a sentence of 6 years' imprisonment with a non-parole period of 4 years, reduced from the standard non-parole period on account of special circumstances. The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds.

  • Whether the sentencing judge erred by declining to find that the applicant was remorseful, which would have operated as a mitigating factor under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the overall sentence of 6 years with a 4-year non-parole period was manifestly excessive

Decision

On the remorse ground, the Court of Criminal Appeal upheld the sentencing judge's decision to withhold a remorse finding. In the immediate aftermath of the assault, the applicant called triple-0 and admitted knocking out the victim, but then constructed a false account of a stranger assault. He maintained that false account in conversations with friends, in a formal statement to police, and again in a record of interview months later. Surveillance intercepts revealed he and his flatmate agreed to "stick to their story." The applicant did not enter his guilty plea until approximately 12 months after the offence.

Although the applicant gave evidence at the sentencing hearing expressing genuine upset and stating he had always intended to take responsibility, the Court found the sentencing judge was entitled to conclude that this did not constitute genuine remorse sufficient to attract the statutory mitigating factor. The Court noted that a statutory finding of remorse under s 21A(3)(i) requires acceptance of responsibility, and sustained deliberate deception over many months was directly inconsistent with that.

On manifest excess, the Court declined to interfere. The objective seriousness of the offending was properly assessed in the mid to high range, given the life-threatening nature of the injuries. The Court noted the statutory guidepost of a 10-year maximum and a 4-year standard non-parole period, and found that even if the sentence sat toward the top of the statistical range, that alone did not make it unreasonable or plainly unjust. With remorse excluded, the only remaining mitigating factors were prior good character (qualified, since none of the character referees had knowledge of the offending) and a finding of unlikely reoffending. The Court was satisfied those factors were adequately reflected in the sentence imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court is entitled to decline a remorse finding under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 where the offender engaged in sustained, deliberate deception following the offence, even if the offender later expresses genuine upset at sentencing.
  • Entering a guilty plea approximately 12 months after an offence, following a prolonged course of deception including false statements to police, does not automatically attract a finding of remorse as a mitigating factor.
  • Judicial sentencing statistics may illustrate a statistical range, but the Court of Criminal Appeal confirmed they do not establish a binding sentencing range and do not preclude a sentence at the top of that range where the circumstances warrant it.
  • Where remorse is not established, limited mitigating factors such as prior good character and low risk of reoffending may still be reflected in the sentence without requiring a reduction below what would otherwise be imposed.
  • In dismissing the appeal, the Court reinforced the weight to be given to general deterrence and denunciation in cases of serious alcohol-fuelled violence causing grievous bodily harm, consistent with the approach taken in R v Loveridge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)

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