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Court of Criminal Appeal 20 May 2020

Kliendienst v R

[2020] NSWCCA 98

Assault & violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE USING OFFENSIVE INSTRUMENT WITH INTENT RECKLESS WOUNDING REFERENCE TO R V WAY

Citation: Kliendienst v R [2020] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 20 May 2020
Judges: Simpson AJA, Rothman J, N Adams J (judgment delivered by N Adams J)

Background

The applicant pleaded guilty in the Port Macquarie District Court to two offences arising from an incident on Anzac Day 2018 at a hotel in Wingham. After being asked to leave the premises, he encountered the victim, with whom he had a long-running grievance following an affair, and struck him in the face before hitting him over the head with a schooner glass. The victim sustained lacerations requiring 20 to 23 stitches and was left with a permanent scar.

The applicant was convicted of using an offensive instrument with intent to commit an indictable offence (under s 33B(1)(a) of the Crimes Act 1900 (NSW), maximum 12 years) and reckless wounding (maximum 7 years, with a standard non-parole period of 3 years). Judge Robison imposed an aggregate sentence of 4 years' imprisonment with a non-parole period of 2 years and 3 months.

The applicant sought leave to appeal on the basis that the sentencing judge had misapplied sentencing principles, failed to properly account for his traumatic upbringing when assessing moral culpability, and erred in the approach to notional accumulation.

  • Whether the sentencing judge incorrectly applied the principles from R v Way (concerning standard non-parole periods) rather than the framework established by the High Court in Muldrock v The Queen
  • Whether the sentencing judge failed to make a proper assessment of the applicant's reduced moral culpability in light of his severely disadvantaged and violent upbringing, in accordance with Bugmy v The Queen
  • Whether the sentencing judge erred in the approach to notional accumulation (that is, how the individual indicative sentences were structured to arrive at the aggregate), or alternatively failed to give adequate reasons on that question

Decision

Ground One: Standard non-parole period principles. The Court of Criminal Appeal found that the sentencing judge's reasons, read in context, did not demonstrate a Way-style error. Although Crown submissions at first instance had referred to guideposts in a manner consistent with the since-superseded Way approach, the Court was satisfied that the sentencing judge ultimately applied the correct Muldrock framework, treating the standard non-parole period as a legislative reference point rather than a mathematical starting point. This ground was not made out.

Ground Two: Moral culpability and the Bugmy principles. This ground succeeded. The sentencing judge accepted the psychologist's evidence about the applicant's traumatic upbringing, including chronic exposure to family violence, a father who suffered from schizophrenia and substance abuse, and the applicant's own resulting psychological difficulties. However, the sentencing judge did not expressly translate those findings into a reduction in the applicant's moral culpability. The Court of Criminal Appeal held that this was an error: the Bugmy principles require a sentencing court to affirmatively consider whether a deprived background bearing directly on the offending reduces an offender's moral culpability. The Court was satisfied that it did here.

Ground Three: Notional accumulation and reasons. The Court found it unnecessary to fully resolve this ground once it had determined that resentencing was warranted on Ground Two. On resentencing, the Court adopted the same ratio of non-parole period to head sentence as the original judge (approximately 56%), finding special circumstances given the applicant's rehabilitation needs. The Court also noted that the objective seriousness of the reckless wounding offence was correctly assessed as well within the mid-range, and that the use of the schooner glass warranted separate punishment under the first count without double-counting for the second. The resulting aggregate sentence was reduced slightly to 3 years and 9 months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • Aggregate sentence of 3 years and 9 months imposed, commencing 26 April 2018 and expiring 25 January 2022, with a non-parole period of 2 years and 1 month commencing 26 April 2018 and expiring 25 May 2020.
  • Indicative sentences:
  • Count 1 (using offensive instrument with intent): 18 months' imprisonment
  • Count 2 (reckless wounding): 3 years' imprisonment with a non-parole period of 2 years

Key Takeaways

  • The Bugmy principle requires a sentencing court to do more than simply receive evidence of a deprived or violent upbringing: the court must expressly assess whether that background reduces the offender's moral culpability in relation to the specific offending.
  • A sentencing judge's failure to translate accepted psychological and background evidence into a finding about reduced moral culpability constitutes a legal error sufficient to justify appellate intervention.
  • Under the Muldrock framework, a standard non-parole period functions as a legislative guidepost, not a numerical starting point; applying it as the latter is a distinct and identifiable error, though here the Court was satisfied the sentencing judge had avoided that error.
  • Where two offences share overlapping criminality, the Court confirmed that a sentencing court must take care to avoid double-counting: aggravation arising from the use of a weapon may be taken into account for one count but not both where the weapon is itself the subject of a separate charge.
  • In resentencing, the Court of Criminal Appeal maintained the same non-parole-to-head-sentence ratio as the original judge, demonstrating that a finding of special circumstances does not require that ratio to be varied on appeal, only that it be expressly justified.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 33(1)(a), 33B(1)(a), 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 53A(4)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Way (2004) 60 NSWLR 16; [2004] NSWCCA 131
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Cahyadi v R [2007] NSWCCA 1
- Berryman v R [2017] NSWCCA 297
- Burgess v R [2019] NSWCCA 13
- Taitoko v R [2020] NSWCCA 43
- Griffin v R [2018] NSWCCA 259
- Campbell v R [2018] NSWCCA 17
- Mifsud v Campbell (1991) 21 NSWLR 725
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 725