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Court of Criminal Appeal 3 March 2021

James v R

[2021] NSWCCA 23

Assault & violenceTheft & property
CRIME APPEALS APPEAL AGAINST SENTENCE A GGRAVATED BREAK AND ENTER AND STEAL

Citation: James v R [2021] NSWCCA 23
Court: Court of Criminal Appeal
Date: 3 March 2021
Judge(s): Brereton JA; Bellew J; Campbell J

Background

The applicant pleaded guilty in the Local Court to aggravated break and enter and steal, contrary to s 112(2) of the Crimes Act 1900 (NSW). The offending occurred in October 2017, when the applicant (then aged 19) entered a 16-year-old victim's bedroom with two co-offenders, demanded cannabis, punched the victim repeatedly, and stole a laptop, iPad, iPhone, and wallet. The victim suffered a cut to his lip during the attack.

The applicant carried significant psychological conditions: a borderline IQ placing him in the bottom 2 to 5 percent of the population, impaired executive functioning in the bottom 1 to 4 percent, and level one to two Autism Spectrum Disorder. In the District Court, the sentencing judge imposed a term of four years imprisonment with a non-parole period of two years.

The applicant sought leave to appeal on the basis that the District Court failed to properly account for the extent of his intellectual disability and failed to assess what effect that disability had on his moral culpability. He also contended the sentence was manifestly excessive.

  • Whether the sentencing judge failed to take into account the full extent and severity of the applicant's psychological and intellectual conditions.
  • Whether the sentencing judge failed to determine whether, and to what extent, those conditions reduced the applicant's moral culpability.
  • Whether the sentence was manifestly excessive.
  • Whether there were special circumstances justifying a substantial departure from the statutory proportion between the non-parole period and the head sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Decision

The Court (by majority, Brereton JA and Campbell J; Bellew J agreeing on error but dissenting on the re-sentencing) granted leave to appeal and allowed the appeal. Brereton JA, with whom Campbell J agreed, found that the sentencing judge had not appropriately recognised the full extent of the applicant's intellectual disability. The weight given to denunciation and retribution in the original sentence was inconsistent with the established principle that reduced mental and intellectual capacity substantially diminishes an offender's moral culpability, making those sentencing objectives inappropriate.

On special circumstances, Brereton JA identified an uncommonly strong combination of factors: the applicant's intellectual disability, his positive response to initial custody, good rehabilitation prospects, the harsh conditions of his incarceration, and the unavailability of necessary psychological and psychiatric support in gaol. These factors together supported a significantly longer period of post-release supervision. The majority found they justified reducing the non-parole period to 40 percent of the head sentence.

Bellew J agreed that error had been established and that re-sentencing was required. However, his Honour dissented from the majority's reduction of the non-parole period to 40 percent of the head sentence. Bellew J considered that rehabilitation could not be the sole or primary sentencing consideration, and that the objective seriousness of the offending and the applicant's criminal history remained substantial countervailing factors.

Campbell J, in agreeing with Brereton JA, emphasised that the applicant's intellectual disability substantially reduced his moral culpability, his utility as a vehicle for general deterrence, and the value of personal deterrence. The same disability had also demonstrably increased the burden of incarceration for the applicant beyond that experienced by inmates without such impairment.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence allowed.
  • Sentence imposed by the District Court quashed.
  • In substitution: a term of four years imprisonment with a non-parole period of nineteen months and five days.

Key Takeaways

  • A sentencing court must not only note the existence of an offender's intellectual disability but must also assess, with appropriate specificity, how that disability affects the offender's moral culpability and the appropriateness of particular sentencing objectives, including denunciation and retribution.
  • Where intellectual disability substantially reduces moral culpability, placing significant weight on deterrence and denunciation is inconsistent with established sentencing principle as applied in Muldrock v The Queen (2011) 244 CLR 120 and related authorities.
  • An uncommonly strong constellation of special circumstances, including the harsh practical impact of custody on a cognitively impaired offender and the unavailability of rehabilitation support in gaol, can justify a very substantial departure from the standard statutory proportion between the non-parole period and head sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The majority reduced the non-parole period to 40 percent of the head sentence, but Bellew J's dissent illustrates that there remains real tension in cases of this kind between giving weight to rehabilitation and subjective circumstances on the one hand, and the objective gravity of offending and criminal history on the other.
  • Increased hardship in custody resulting from an offender's intellectual or psychological impairment is a relevant consideration in assessing the true weight of a custodial sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 10A, 11, 44(2)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Aslan v R [2014] NSWCCA 114
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Clarke-Jeffries v R [2019] NSWCCA 56
- Hung v R [2019] NSWCCA 303
- Elturk v R (2014) 239 A Crim R 584; [2014] NSWCCA 61
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26