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Court of Criminal Appeal 29 November 2019

Horvath v R

[2019] NSWCCA 285

Assault & violence
CRIMINAL LAW APPEAL LEAVE TO APPEAL AGAINST SENTENCE INTENT TO CAUSE GRIEVOUS BODILY HARM GROUNDS OF APPEAL NOT MADE OUT LEAVE TO APPEAL GRANTED

Citation: Horvath v R [2019] NSWCCA 285
Court: NSW Court of Criminal Appeal
Date: 29 November 2019
Judges: Payne JA, Button J, Lonergan J

Background

The applicant pleaded guilty in the District Court to one count of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence occurred on 26 January 2016 in a residential street in Lalor Park, arising from a neighbourhood dispute between two families.

The applicant drove his vehicle deliberately at the victim, who was standing in the middle of the road. The vehicle struck the victim, drove over his legs, became temporarily stuck in a front yard, and then reversed back over the victim's foot, causing a degloving injury. The applicant's own vehicle was fitted with a dash cam that recorded both video and audio commentary throughout the incident, including statements by the applicant expressing his intention to run the victim over.

The sentencing judge imposed a total sentence of 7 years, comprising a non-parole period of 4 years and a balance term of 3 years. The applicant sought leave to appeal against that sentence on four grounds.

  • Whether the sentencing judge failed to give proper reasons for finding that the applicant deliberately reversed over the victim
  • Whether the sentencing judge erred in finding, as a fact, that the applicant deliberately reversed over the victim
  • Whether the sentencing judge erred in failing to find provocation by the victim as a mitigating factor
  • Whether the sentencing judge erred in failing to give proper consideration to the applicant's background as a mitigating factor

Decision

Grounds 1, 2, and 3: Factual findings and provocation

The Court rejected all three grounds relating to the sentencing judge's factual findings. The dash cam footage, which captured both video of the applicant driving over and reversing over the victim and the applicant's own spoken commentary announcing his intention to run the victim over, powerfully contradicted the applicant's complaints. All three judges noted that the footage spoke directly against the success of those grounds.

On the question of provocation, the Court found that the sentencing judge was entitled to decline to treat the victim's conduct as a mitigating factor. The agreed facts established that the victim's actions, including tailgating the applicant's vehicle and later punching its headlight, did not amount to provocation of the kind warranting mitigation, particularly given the deliberateness of the applicant's conduct as evidenced by the dash cam recording.

Ground 4: Background as a mitigating factor

The Court also rejected the ground that the sentencing judge had failed to give proper consideration to the applicant's personal background, including mental health evidence. The sentencing judge had engaged in a lengthy analysis of the applicant's circumstances and was entitled to find that they did not reach the threshold required under Bugmy v The Queen (2013) 249 CLR 571 for a finding of social deprivation warranting mitigation.

The sentencing judge's treatment of expert psychiatric evidence was also upheld. The judge's reservation about the weight of that evidence, given it was based on the applicant's untested self-reporting, was consistent with principle. The Court observed that the 57% ratio of non-parole period to head sentence itself reflected a degree of generosity in the applicant's favour. The Court left open, as unnecessary to decide in this case, whether the "constrained approach" to sentencing appeals articulated in R v O'Donoghue and recently questioned in Hordern v R [2019] NSWCCA 138 was correct.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's factual findings at sentence are not open to successful challenge on appeal where contemporaneous objective evidence, such as dash cam footage and the applicant's own recorded statements, directly supports those findings.
  • Where an applicant relies on provocation as a mitigating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the conduct relied upon must be assessed in light of all the circumstances, including any clear evidence of the offender's premeditated intent.
  • Expert psychiatric evidence based solely on an offender's untested self-reporting may be given reduced weight by a sentencing judge, particularly where the offender did not give evidence at the sentencing hearing.
  • Under Bugmy v The Queen, deprived background circumstances can constitute a mitigating factor in sentencing, but the circumstances must reach a requisite threshold; the Court of Criminal Appeal confirmed that the sentencing judge's conclusion that this threshold was not met was open on the evidence.
  • The Court of Criminal Appeal expressly declined to resolve whether the "constrained approach" to factual findings on sentencing appeals, derived from R v O'Donoghue, should continue to be applied following the majority's criticism of it in Hordern v R.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Carroll v The Queen (2009) 254 CLR 259; [2009] HCA 13
- Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232
- Currie v R [2013] NSWCCA 267
- Hordern v R [2019] NSWCCA 138
- Lee v R [2016] NSWCCA 146
- Mifsud v Campbell (1991) 21 NSWLR 725
- Miller v R [2015] NSWCCA 86
- Perkins v R [2018] NSWCCA 62
- R v Mendez [2002] NSWCCA 415
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Williams [2011] NSWSC 583
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44