AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 30 September 2020

Harkin v R

[2020] NSWCCA 242

Assault & violence
CRIMINAL LAW SENTENCE APPEAL WHETHER THE TOTALITY PRINCIPLE APPLIED WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED.

Citation: Harkin v R [2020] NSWCCA 242
Court: NSW Court of Criminal Appeal
Date: 30 September 2020
Judge(s): Hoeben CJ at CL; Button J; N Adams J

Background

The appellant was sentenced following two offences committed in the early hours of 21 October 2018 in Potts Point: reckless wounding causing grievous bodily harm in company, and affray. The incident arose from a confrontation with an acquaintance outside a backpackers hostel. After an initial altercation in which the appellant was himself struck by a thrown bottle and injured, he returned to a nearby hostel, retrieved a box-cutter knife, and came back to the scene. A group assault followed, during which the appellant slashed the victim repeatedly with the knife, leaving the victim with extensive lacerations requiring sutures across his face, scalp, neck, chest and back, permanent scarring, and ongoing pain.

At the time of the offences, the appellant was on conditional liberty under two section 9 bonds for prior common assault offences and a section 10(1)(b) bond for drug possession. The sentencing judge revoked those bonds and imposed short fixed terms for the prior assaults. For the principal offences, his Honour imposed an aggregate sentence of 6 years imprisonment with a non-parole period of 4 years, resulting in an effective head sentence of 6 years and 6 months with a non-parole period of 4 years and 6 months across all matters.

The appellant sought leave to appeal on four grounds: that the sentencing judge failed to adequately account for his mental health condition, his disadvantaged early life, mitigating factors of remorse and provocation, and failed to apply the totality principle sufficiently in his favour.

  • Whether the sentencing judge gave adequate weight to the appellant's mental health condition (PTSD and alcohol abuse) as reducing his moral culpability
  • Whether the sentencing judge adequately took into account the appellant's disadvantaged and traumatic early life, including under the principles in Bugmy v The Queen
  • Whether sufficient weight was given to remorse and provocation as mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the totality principle should have operated more favourably to reduce the overall sentence
  • Whether the sentence was, in all the circumstances, manifestly excessive

Decision

The Court of Criminal Appeal, with all three judges agreeing, granted leave but dismissed the appeal on all grounds.

On the mental health ground, the Court found that none of the psychiatric or psychological material placed before the sentencing judge established that the appellant was in a psychotic or paranoid state at the time of the offending. N Adams J observed that while the appellant's psychologist identified PTSD and alcohol abuse as "key" to understanding his behaviour, the expert evidence did not identify any causal connection between the mental illness and the offending. Critically, the deliberate act of returning home to arm himself with a knife before going back to the scene of the confrontation was difficult to reconcile with any claimed reduced mental capacity.

On the disadvantaged early life ground, no submission based on Bugmy v The Queen (the High Court authority requiring that the effects of childhood deprivation be given full weight in sentencing) had been made before the sentencing judge. N Adams J distinguished the earlier decision in Kliendienst v R, where a similar omission was overlooked on appeal, on the basis that the offending here was not a spontaneous act of violence. In any event, the sentencing judge had expressly acknowledged the appellant's childhood trauma and incorporated it into the sentencing exercise. The Court cited Dungay v R for the proposition that giving full weight to childhood deprivation does not automatically reduce moral culpability in every case.

On remorse and provocation, and the totality ground, the Court found no error in the sentencing judge's approach. The judge had acknowledged the provocation that preceded the second confrontation but was entitled to treat it as limited in mitigation given the appellant's deliberate decision to retrieve a weapon and return. No error was demonstrated in the application of the totality principle to the aggregate sentence.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A psychological assertion that PTSD is "key" to offending behaviour is insufficient to establish reduced moral culpability where the expert evidence does not identify the nature of any causal connection between the condition and the offending.
  • Where no Bugmy submission was made at first instance, the failure of a sentencing judge to explicitly address those principles will not ordinarily constitute error on appeal, particularly where the offending was not spontaneous.
  • Giving "full weight" to a disadvantaged and traumatic childhood in the sentencing process does not require, in every case, a reduction in moral culpability; that factor may be accommodated through the broader process of instinctive synthesis.
  • Provocation occurring before an offence may carry limited mitigatory force where the offender has had time and opportunity to disengage, as demonstrated here by the appellant leaving the scene, arming himself, and returning.
  • In dismissing the appeal, the Court confirmed that an effective sentence of 6 years and 6 months with a non-parole period of 4 years and 6 months for reckless wounding causing grievous bodily harm in company (assessed beyond the mid-range of objective seriousness) and affray was not manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(3), 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10(1)(b), 10A, 21A, 54B(4), 54B(7)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dungay v R [2020] NSWCCA 209
- Kliendienst v R [2020] NSWCCA 98
- House v R (1936) 55 CLR 499; [1936] HCA 40
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1; [2010] NSWCCA 194
- Cahyadi v Regina (2007) 168 A Crim R 41; [2007] NSWCCA 1
- AK v Regina [2020] NSWCCA 194
- JJ v R [2020] NSWCCA 165
- Aslan v R [2014] NSWCCA 114
- R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184
- Regina v Baker [2000] NSWCCA 85
- Regina v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115