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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: NSW Court of Criminal Appeal
Date: 21 October 2020
Judge(s): Gleeson JA; Rothman J; Price J

Background

The appellant pleaded guilty in the District Court at Campbelltown to two serious offences: wounding with intent to cause grievous bodily harm (s 33(1)(a), Crimes Act 1900 (NSW)) and specially aggravated detention for advantage (s 86(3), Crimes Act 1900 (NSW)). The offences arose from a premeditated attack on a victim in June 2016. The appellant, having taken offence at comments the victim made about him, lured the victim to a house where he attacked him with an axe and a knife, causing serious lacerations requiring multiple surgeries. The appellant then detained the victim in the boot of a car for approximately 90 minutes before the victim escaped.

The sentencing judge imposed an aggregate sentence of 10 years' imprisonment with a non-parole period of 7 years, reflecting a ratio of 70%. The sentence was backdated to 30 May 2017, making it partly concurrent with sentences the appellant had previously served for unrelated offending. The sentencing judge found special circumstances, citing the appellant's need for extended supervision, the risk of institutionalisation, and the fact of accumulation with the earlier sentences.

The appellant applied for leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had failed to give effect to the finding of special circumstances. The plea of guilty was entered on the day after the trial was listed to commence, attracting a 10% discount.

  • Whether the aggregate sentence and non-parole period were manifestly excessive (Ground 1)
  • Whether the sentencing judge erred by finding special circumstances but then failing to reflect that finding in the structure of the sentence (Ground 2)

Decision

The Court allowed the appeal on Ground 2 by majority. The sentencing judge had expressly found special circumstances, a finding which ordinarily requires a departure from the standard ratio of non-parole period to head sentence. Despite that finding, the resulting sentence maintained a non-parole period of 7 years out of 10, a ratio of 70%. This reproduced the standard non-parole period ratio rather than departing from it in favour of the appellant.

Rothman J, with whom Gleeson JA agreed, concluded that the sentencing judge's failure to give effect to the special circumstances finding was most likely an oversight arising from the mechanics of calculating an aggregate sentence accumulated on earlier sentences. Because the error was established on Ground 2, it was not necessary for the majority to decide whether the sentence was also manifestly excessive under Ground 1.

Price J dissented on Ground 2, taking the view that no error was established in the sentencing judge's approach, but his Honour did not need to consider Ground 1 given that conclusion.

The majority held that the error on Ground 2 enlivened the Court's re-sentencing jurisdiction. The applicant was accordingly re-sentenced, with the structure of the sentence adjusted to give genuine effect to the special circumstances finding.

Orders Made

• Ground 1 of the appeal be dismissed
• Ground 2 of the appeal has been established
• The orders proposed by Rothman J be made

Key Takeaways

  • A sentencing court that expressly finds special circumstances is required to give practical effect to that finding by reducing the ratio of non-parole period to head sentence below the standard proportion; a finding of special circumstances that produces no such reduction is an error.
  • Where accumulation of a new sentence on previously served sentences creates complexity in calculating the aggregate structure, the Court of Criminal Appeal may treat a failure to reflect special circumstances as an oversight rather than a deliberate choice, and that oversight constitutes a sentencing error.
  • In allowing the appeal on Ground 2, the majority found it unnecessary to resolve Ground 1 (manifest excess), illustrating that success on one ground of a sentence appeal can render other grounds unnecessary to determine.
  • The standard non-parole period for wounding with intent under s 33(1)(a) of the Crimes Act 1900 (NSW) is 7 years, against a maximum of 25 years, and this benchmark informed the Court's analysis of whether the sentence structure accurately reflected the special circumstances finding.
  • A late guilty plea entered the day after a trial was listed to commence attracted only a 10% discount, consistent with established principles governing the timing and weight of guilty pleas in NSW sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a) (wound with intent to cause grievous bodily harm)
- Crimes Act 1900 (NSW), s 86(3) (specially aggravated detention for advantage)

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