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Court of Criminal Appeal 11 October 2021

Perry v R

[2021] NSWCCA 244

Assault & violence

Citation: Perry v R [2021] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 11 October 2021
Judge(s): Bathurst CJ, Garling J, Wright J

Background

The applicant pleaded guilty in the Local Court to one charge of reckless wounding under s 35(4) of the Crimes Act 1900 (NSW), following an incident in September 2019 in which he struck the victim on the head with a broken chair leg approximately one metre long. The victim suffered serious injuries, including a large scalp laceration and a brain haematoma requiring emergency surgery at Nepean Hospital. The applicant was committed to the District Court for sentence.

In October 2020, the District Court imposed a sentence of four years' imprisonment with a non-parole period of two years, backdated to April 2020. The sentencing judge found the offending was at the upper end of the lower range of objective seriousness, noted the applicant was on an Intensive Correction Order at the time, and applied a 25% discount for an early guilty plea.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: that the sentencing judge had breached the De Simoni principle, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erroneously took into account conduct constituting a more serious offence than the one to which the applicant had pleaded guilty, in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383.
  • Whether the sentence of four years' imprisonment with a two-year non-parole period was manifestly excessive for reckless wounding in the circumstances.

Decision

Ground 1: De Simoni principle. The De Simoni principle provides that a sentencing court must not take into account, as an aggravating circumstance, conduct that would constitute a more serious offence than the one for which the offender is being sentenced. Documentation provided by both parties to the sentencing proceedings had incorrectly proceeded on the basis that the applicant had pleaded guilty to a more serious offence. However, Wright J found that the sentencing judge had himself identified and corrected this error during the hearing, and had ultimately sentenced the applicant for the correct offence. Ground 1 was accordingly rejected.

Ground 2: Manifest excess. Wright J upheld this ground, finding that the four-year sentence was outside the range available on the facts. In reaching this conclusion, the Court considered the sentencing judge's findings in their entirety, including the objective circumstances, the applicant's significant drug use at the time, the absence of premeditation, his difficult personal history (including an abusive upbringing and his Aboriginal heritage, consistent with the approach in Bugmy v The Queen), his early plea, and the aggravating factor of the Intensive Correction Order.

The Court of Criminal Appeal also took into account improved prospects of rehabilitation identified at the time of the appeal hearing, including the applicant's engagement with a buprenorphine program, motivation to change, and available support on release. The Court found special circumstances warranting a departure from the standard non-parole period ratio, having regard to the applicant's need for extended supervision to address his drug addiction and the accumulation of the sentence on time already served.

Garling J agreed the appeal should be upheld on Ground 2 but would have reached the same sentencing outcome on the basis that objective seriousness was below the mid-range, consistent with the sentencing judge's own finding.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 15 October 2020 quashed.
  • In lieu, the applicant sentenced to imprisonment with a non-parole period of 1 year and 6 months commencing 16 April 2020 and expiring 15 October 2021, and a balance of term of 1 year and 6 months expiring 15 April 2023.

Key Takeaways

  • The De Simoni principle is not automatically breached where documentation before a sentencing judge incorrectly assumes a more serious offence; the Court of Criminal Appeal confirmed that no error arises where the sentencing judge himself identifies and corrects the mistake and sentences for the correct offence.
  • A finding that offending sits at "the upper end of the lower range" of objective seriousness is a significant factor bearing on the available sentencing range, and a sentence inconsistent with that finding may be susceptible to a manifest excess challenge.
  • Under Bugmy v The Queen, the effects of childhood deprivation and an abusive upbringing remain relevant throughout the sentencing exercise, and the Court reaffirmed that these factors do not diminish in significance merely because an offender has accumulated prior convictions.
  • Special circumstances justifying a departure from the standard non-parole period ratio can arise from the combination of an extended need for supervision to address drug addiction and the accumulation of sentences.
  • Rehabilitation developments occurring after the original sentence was imposed are capable of being taken into account by an appellate court when resentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54A
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Bugmy v The Queen (2013) 249 CLR 571
- Kentwell v The Queen (2014) 252 CLR 601
- Muldrock v The Queen (2011) 244 CLR 120
- DL v The Queen (2018) 265 CLR 215
- Obeid v R (2017) 96 NSWLR 155
- Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223
- Swan v R [2016] NSWCCA 79
- Haoui v R [2008] NSWCCA 209
- Vallance v The Queen (1961) 108 CLR 56
- Moriarty v Brooks (1834) 6 C & P 684