Citation: Melvaine v R [2019] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 11 November 2019
Judges: Macfarlan JA, Johnson J, Cavanagh J (joint judgment delivered by Cavanagh J)
Background
The applicant pleaded guilty to one count of aggravated robbery with wounding under s 96 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment. The offence involved a violent, unprovoked attack on a 76-year-old man who was walking to a local shopping centre in the early morning to buy a newspaper. The applicant punched the victim repeatedly, causing significant facial fractures and lacerations, and stole $300 of the victim's fortnightly pension money. The victim spent nine days in hospital and suffered permanent loss of sensation in one finger.
The applicant was sentenced in the District Court to eight years and six months imprisonment, with a non-parole period of six years. A 15 per cent discount was applied for the utilitarian value of the guilty plea, which was entered on the second day of hearing and before a jury was empanelled.
On appeal, the applicant raised two grounds: first, that the sentencing judge erred in characterising the conduct as a "gratuitous act of cruelty"; and second, that the overall sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge's description of the applicant's conduct as a "gratuitous act of cruelty" constituted an erroneous or impermissible finding, specifically whether it amounted to a separate aggravating factor under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether, if the phrase did import the statutory aggravating factor, such a finding was open on the facts
- Whether the sentence of eight years and six months with a non-parole period of six years was manifestly excessive, having regard to the applicant's subjective circumstances including his mental health, disadvantaged background, and the need for an extended period of supervision
Decision
Ground 1: "Gratuitous act of cruelty"
The Court rejected the argument that the sentencing judge's use of the phrase "gratuitous act of cruelty" constituted a finding of the specific statutory aggravating factor in s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999. Reading the remarks on sentence as a whole, the Court concluded the phrase was part of a broader description of the nature of the attack, used to explain why the offence was of extremely high objective seriousness. The sentencing judge did not make a discrete, standalone finding of an aggravating factor.
The Court referred to the definition of gratuitous cruelty discussed in McCullough v R [2009] NSWCCA 94, which framed the concept as the infliction of pain as an end in itself, needless yet intentional suffering beyond what the offence requires. The Court noted it was open to the sentencing judge to have made such a formal aggravating finding, given that the repeated punches to the victim's face after the initial blow were unnecessary to achieve the robbery. However, no such specific finding was made, and no error was established from the use of descriptive language alone.
Ground 2: Manifest excess
The Court found no error in the sentencing judge's treatment of the applicant's subjective circumstances. The remarks addressed his family history of mental illness, a diagnosis of schizophrenia of paranoid type and substance use disorder (noting disagreement between psychiatric experts on the precise diagnosis), his disadvantaged upbringing, and the increased hardship of imprisonment given his mental health conditions. The sentencing judge also applied the principle from Bugmy v The Queen (2013) 249 CLR 571, finding that the applicant's difficult formative years mitigated his moral culpability. The Court was not persuaded that the sentence was markedly different from sentences imposed in comparable cases, or that it reflected any misapplication of principle.
Orders Made
- Leave to appeal against the sentence is granted.
- The appeal is dismissed.
Key Takeaways
- A sentencing judge's use of the phrase "gratuitous act of cruelty" in sentencing remarks does not automatically constitute a formal finding of the statutory aggravating factor under s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW); the remarks must be read as a whole to determine whether a discrete finding was made.
- Under McCullough v R, gratuitous cruelty in the statutory sense involves the infliction of pain as an end in itself, going beyond what the commission of the particular offence requires, such as violence against an already compliant victim.
- Where descriptive language in sentencing remarks goes to the objective seriousness of the offence rather than constituting a separate aggravating finding, no appellate error arises from its use.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a sentencing judge's obligation to consider subjective circumstances, including mental illness and a disadvantaged background under Bugmy, is satisfied where those matters are genuinely addressed in the reasons, even where significant weight is given to objective seriousness, denunciation, and deterrence.
- No error was established from the sentence of eight years and six months for an extremely serious aggravated robbery with wounding committed against a frail elderly victim, where discounts for the plea and special circumstances were applied.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 96 (aggravated robbery with wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(f) (gratuitous cruelty as aggravating factor)
Cases
- Aguirre v R [2010] NSWCCA 115
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Hughes v R [2018] NSWCCA 2
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
- Ryan Gurney v Regina; Aaron Willetts v Regina [2011] NSWCCA 48