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Court of Criminal Appeal 21 October 2020

Vincent v R

[2020] NSWCCA 271

Assault & violence
CRIME SENTENCE APPEAL ASSUMED OVERSIGHT SENTENCED.

Citation: Vincent v R [2020] NSWCCA 271
Court: Court of Criminal Appeal
Date: 21 October 2020
Judge(s): Gleeson JA at [1]; Rothman J at [2]; Price J at [92]

Background

The applicant, a 52-year-old man with a criminal history dating to 1985, pleaded guilty in the District Court at Campbelltown to two serious offences arising from a violent confrontation on 22 June 2016. The offences were wound with intent to cause grievous bodily harm and specially aggravated detain for advantage. The applicant had ambushed the victim at a private residence, attacking him with an axe and a knife before tying him up and placing him in a car boot, where the victim was detained for approximately 1.5 hours until he escaped at a service station.

The victim suffered serious injuries requiring two surgeries, including a 15 cm arm laceration with nerve damage, tendon division to a finger, a cheekbone laceration, and significant leg tendon damage. At the time of sentencing on 6 May 2019, the applicant was already serving sentences for unrelated offences of being armed with intent and assault occasioning actual bodily harm.

The sentencing judge imposed an aggregate sentence of 10 years' imprisonment with a non-parole period of 7 years, backdated to 30 May 2017 to run partly concurrently with the pre-existing sentences. The applicant sought leave to appeal on two grounds: manifest excess and failure to give effect to the finding of special circumstances.

Legal Issues

  • Whether the aggregate sentence of 10 years' imprisonment with a 7-year non-parole period was manifestly excessive given the sentencing judge's finding that both offences were in the mid-range of objective seriousness.
  • Whether the sentencing judge failed to give practical effect to her finding of special circumstances, where accumulation with pre-existing sentences caused the effective non-parole period ratio to rise from the intended 70% to 72.5%.

Decision

Ground 1: Manifest Excess

By majority, the Court dismissed the manifest excess ground. Rothman J acknowledged the sentence was "stern" and not within the typical pattern of past sentences disclosed by Judicial Commission statistics, but emphasised that the pattern of past sentencing is a yardstick or check rather than a determinative range (at [82]). The severity apparent in the indicative sentence for the wounding offence was significantly ameliorated by the notional concurrency built into the aggregate sentence, reflecting the court's view that both offences formed part of a single course of conduct (at [80]-[83]). Price J agreed that the aggregate sentence was not above the range of sentences justly available for these offences (at [92]). Gleeson JA considered it unnecessary to decide Ground 1 given the outcome on Ground 2 (at [1]).

Ground 2: Failure to Give Effect to Special Circumstances

The Court allowed the appeal on this ground unanimously. The sentencing judge had expressly found special circumstances and fixed a non-parole period at 70% of the head sentence. However, the partial accumulation with the pre-existing sentences, which themselves carried a 60% ratio reflecting an earlier special circumstances finding, caused the effective overall ratio to become 72.5%. The sentencing judge made no express comment acknowledging or intending this departure from the 70% ratio (at [54]-[55]).

Applying established authority, the Court held that where accumulation alters the effective ratio between non-parole period and head sentence and the sentencing judge has not explained or acknowledged that alteration, the change should be treated as an unintended consequence and corrected on appeal (at [66]). The Crown's submission that her Honour's statement that "no lesser non-parole period" would address the seriousness of the offending was sufficient to show intention did not overcome this inference, because that observation applied equally regardless of the accumulation structure adopted (at [63]). Error was established, and re-sentencing was required (at [67]).

Re-sentencing

On re-sentencing, Rothman J adopted all of the primary judge's findings, including the 10% discount for the late guilty plea and the finding of special circumstances. The aggregate head sentence remained at 10 years' imprisonment commencing 30 May 2017, but the non-parole period was reduced to give effect to the 70% ratio the primary judge had intended (at [86]-[90]).

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by the District Court on 6 May 2019 is quashed.
  • In lieu, the applicant is sentenced to an aggregate term of 10 years' imprisonment commencing 30 May 2017 and concluding 29 May 2027, with a non-parole period of 6 years and 8 months, concluding 29 January 2024.
  • The applicant is first eligible for release on parole on 29 January 2024.

Key Takeaways

  • Where accumulation of a new sentence with pre-existing sentences alters the effective ratio between the non-parole period and the head sentence, and the sentencing judge has not expressly acknowledged or explained that alteration, the Court of Criminal Appeal will treat the departure as an unintended consequence and correct it on appeal (at [66]).
  • A sentencing judge's general statement that "no lesser non-parole period" would address the seriousness of offending is insufficient, without more, to rebut the inference that an altered ratio caused by accumulation was inadvertent, because such a statement applies equally regardless of how the sentence was structured (at [63]).
  • The pattern of past sentencing disclosed by Judicial Commission statistics represents a useful yardstick against which proposed sentences may be checked, but it does not define the range of sentences available to a sentencing judge; consistency in sentencing is achieved through consistent application of sentencing principles, not numerical equivalence (at [71]-[72]).
  • In dismissing the manifest excess ground, the Court confirmed that significant notional concurrency within an aggregate sentence can materially ameliorate what might otherwise appear to be a stern indicative sentence for an individual offence, and those two elements must be considered together (at [80]-[83]).
  • Special circumstances findings carry practical consequences for the non-parole ratio: where a sentencing judge identifies a specific ratio as appropriate, that ratio must be given effect across the whole of the sentence as structured, including after any accumulation with sentences already being served (at [54]-[56]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 86(3)

Cases
- CM v R [2013] NSWCCA 341
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- GP v R [2017] NSWCCA 200
- Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Maglis v R [2010] NSWCCA 247
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25