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8
Court of Criminal Appeal 25 November 2019

Cross v R

[2019] NSWCCA 280

Assault & violence

Citation: Cross v R [2019] NSWCCA 280
Court: Court of Criminal Appeal, New South Wales
Date: 25 November 2019
Judge(s): Gleeson JA, Johnson J, Cavanagh J

Background

The appellant pleaded guilty on the first day of trial to two counts of aggravated kidnapping in company, contrary to s 86(2)(a) of the Crimes Act 1900 (NSW). Both offences involved the appellant threatening two teenage schoolgirls with pocket knives, forcing them into her car, detaining them while driving erratically, and making repeated threats of violence before releasing them. The victims were 14 years old and had no prior relationship with the appellant.

In February 2019, the District Court sentenced the appellant to 30 months' imprisonment (with a non-parole period of 15 months) on each count, to be served concurrently. The maximum penalty for each offence was 20 years' imprisonment.

The appellant did not challenge the length of the sentence. Instead, her appeal was directed at the sentencing judge's reasoning around whether the sentences should have been served by way of an Intensive Correction Order (an ICO, which is a community-based alternative to full-time imprisonment).

  • Whether the sentencing judge erred by failing to treat community safety as a paramount consideration under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when considering an ICO
  • Whether the sentencing judge misapplied the parity principle in a way that improperly restricted her sentencing discretion
  • Whether the sentencing judge failed to properly account for the appellant's mental health
  • Whether, in the alternative, the sentencing judge failed to give adequate reasons

Decision

Ground 1 (ICO and community safety): The Court identified a threshold problem with this ground at the outset. Under s 68 of the Crimes (Sentencing Procedure) Act 1999, an ICO cannot be made where the term of imprisonment for a single offence exceeds two years. Each sentence here was 30 months, meaning no ICO was legally available. Because the appellant also did not argue that the sentences should be treated as an aggregate sentence (which carries a different ICO threshold of three years), the entire premise of her submissions on this ground was undermined. The sentencing judge's conclusion that full-time imprisonment was necessary was therefore unimpeachable, and was consistent with recent Court of Criminal Appeal authority.

Ground 2 (parity): The appellant argued that the sentencing judge's approach to parity with her co-offender's sentence had improperly constrained the sentencing discretion. The Court rejected this ground, finding no error in the way parity was applied.

Ground 3 (mental health): The Court found that the sentencing judge had expressly addressed the appellant's psychiatric illness in her remarks on sentence, noting that persons suffering from psychiatric illness who commit offences of this gravity must still face the prospect of full-time imprisonment. That express reference was taken to be a direct engagement with the appellant's condition, and the ground was not established.

Ground 4 (inadequate reasons): Because all three substantive grounds failed, this alternative ground also fell away. The written submissions underpinning it proceeded from the flawed premise that an ICO was available and that the sentencing judge had a discretion to make one.

Orders Made

  • Leave to appeal granted
  • The appeal dismissed

Key Takeaways

  • Under s 68 of the Crimes (Sentencing Procedure) Act 1999, an ICO is not available where the term of imprisonment imposed for a single offence exceeds two years. This statutory bar is a threshold question that precedes any discretionary consideration of community safety under s 66.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed its earlier reasoning in R v Fangaloka [2019] NSWCCA 173 and Karout v R [2019] NSWCCA 253: the objective gravity of aggravated kidnapping offences of this kind makes full-time imprisonment necessary, regardless of an offender's psychiatric history.
  • A sentencing judge who expressly references the relevance of psychiatric illness in the context of objective criminality will generally be taken to have engaged sufficiently with that mitigating factor.
  • No error was established in the parity analysis, and the Court noted that the wholly concurrent sentences were, if anything, generous to the appellant given that two separate child victims were traumatised.
  • Where a ground of appeal challenging adequacy of reasons rests on earlier grounds that all fail, it will ordinarily fail with them.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66, 68, 69
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Karout v R [2019] NSWCCA 253
- R v Fangaloka [2019] NSWCCA 173
- R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534
- Lago v R [2015] NSWCCA 296
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Ng v R [2011] NSWCCA 227; 214 A Crim R 191
- R v Connell [2013] NSWCCA 155
- R v Montesinos [2002] NSWCCA 470; 135 A Crim R 417
- R v Nguyen [2010] NSWCCA 331
- R v Pullen [2018] NSWCCA 264