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Court of Criminal Appeal 5 August 2020

Walsh v R

[2020] NSWCCA 183

Assault & violence
CRIME SENTENCE AFTER TRIAL APPLICATION FOR EXTENSION OF TIME LEAVE TO APPEAL AGAINST SENTENCE TRAUMATIC AND DYSFUNCTIONAL CHILDHOOD MENTAL ILLNESS

Citation: Walsh v R [2020] NSWCCA 183
Court: Court of Criminal Appeal, New South Wales
Date: 5 August 2020
Judge(s): Johnson J, Wright J, Wilson J (Wilson J delivered the principal judgment; Johnson J and Wright J agreed)

Background

The appellant was convicted after a jury trial of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years imprisonment and a standard non-parole period (SNPP) of 7 years. The conviction arose from a New Year's Day 2018 attack in which the appellant entered a Hunters Hill unit and stabbed the sleeping victim at least three times with a knife, inflicting wounds to the chest, neck, and temple, the last of which was consistent with a traumatic brain injury. Without prompt surgical intervention, there was a real risk to the victim's life and a risk of significant impairment.

The sentencing judge in the District Court imposed a total sentence of 9 years and 4 months imprisonment, with a non-parole period of 7 years. The sentence commenced on 5 June 2018. The sentencing exercise involved a substantial body of material concerning the appellant's deeply troubled personal history, including a childhood marked by serious family trauma, chronic mental illness (schizophrenia), and long-term drug addiction. The appellant also carried a significant prior record, including multiple convictions for offences of violence and robbery whilst armed.

The appellant sought leave to appeal against sentence in the Court of Criminal Appeal. Because no formal Notice of Appeal had been filed within the time allowed after the Notice of Intention to Apply was lodged, the appellant also required an extension of time.

  • Whether the sentencing judge erred in failing to find special circumstances that would justify departing from the statutory ratio between the non-parole period and the balance of sentence
  • Whether, having identified factors capable of supporting special circumstances, the sentencing judge should have reduced the non-parole period below the standard ratio
  • Whether the overall sentence of 9 years and 4 months imprisonment was manifestly excessive
  • Whether an extension of time for filing the Notice of Appeal should be granted

Decision

The Court of Criminal Appeal granted the extension of time and granted leave to appeal, acknowledging the particular circumstances including the appellant's mental illness. However, all three grounds of appeal were dismissed.

On the special circumstances ground, Wilson J found that the sentencing judge had not erred. Her Honour had taken into account the very factors that might have justified a formal finding of special circumstances when determining the overall length of the sentence, thereby ameliorating the sentence to the extent that principle and evidence permitted. That approach was open to her. The sentencing judge also concluded that a parole period in line with the usual ratio would be sufficient to support the appellant's reintegration into the community, particularly given that effective treatment for his schizophrenia was available in custody and would remain available on release, even though the appellant had at times declined to accept medication. That conclusion was also open to her, consistent with Goodbun v R [2020] NSWCCA 77 at [74].

On manifest excess, Wilson J concluded that the sentence fell within the available range and was not outside what was legitimately open on the facts. The sentencing exercise was described as very difficult, with a range of outcomes legitimately available. The sentence properly reflected the gravity of the offence while also accounting, where possible, for the appellant's sad and dysfunctional personal circumstances. No error of the kind described in House v The King (1936) 55 CLR 499 was established.

Orders Made

  • Extension of time in which to file a Notice of Appeal granted, to 14 April 2020
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge does not err by declining to make a formal finding of special circumstances where the relevant mitigating factors have instead been taken into account in moderating the overall length of the sentence.
  • Where a sentencing judge determines that the standard ratio between the non-parole period and the balance of sentence is sufficient to support an offender's rehabilitation and reintegration, that conclusion will generally be open, even where the offender has significant mental health needs, provided adequate treatment is available during both the custodial and parole phases.
  • In dismissing the appeal, the Court confirmed that an offender's decision to refuse available medication in custody does not, of itself, require the sentencing judge to extend the parole period beyond the standard ratio.
  • Factors such as a traumatic and dysfunctional childhood, chronic mental illness, and long-term drug addiction remain relevant mitigating considerations in sentencing, consistent with the principles in Bugmy v The Queen (2013) 249 CLR 571, but they do not automatically compel a departure from the standard non-parole period.
  • Procedural delays in securing legal aid and filing a Notice of Appeal may support an extension of time, and the Court of Criminal Appeal may grant leave to appeal even where all grounds ultimately fail, where the particular circumstances of an offender (such as mental illness) make it appropriate to scrutinise the sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a) (wounding with intent to cause grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- AM v R [2012] NSWCCA 203
- Aslan v R [2014] NSWCCA 114
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DJM v R [2013] NSWCCA 101
- Goodbun v R [2020] NSWCCA 77
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kandemir v R [2018] NSWCCA 154
- Magro v R [2020] NSWCCA 25
- R v Bobak [2005] NSWCCA 320
- R v Carter [2003] NSWCCA 243
- R v Fidow [2004] NSWCCA 172
- R v Kirkland [2005] NSWCCA 130
- R v Lulham [2016] NSWCCA 287
- R v Mitchell [2007] NSWCCA 296
- R v Simpson (2001) NSWLR 704; [2001] NSWCCA 534
- R v Zoef [2005] NSWCCA 268
- RLS v R [2012] NSWCCA 236
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14