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6
Court of Criminal Appeal 3 February 2021

Buckley v R

[2021] NSWCCA 6

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL AGAINST SENTENCE SERIES OF ARMED ROBBERY OFFENCES APPLICANT RESENTENCED

Citation: Buckley v R [2021] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 3 February 2021
Judges: McCallum JA, Garling J, Wright J

Background

The appellant had pleaded guilty in the Local Court to ten offences, including six counts of armed robbery committed between August 2014 and April 2018, as well as possessing an imitation pistol, using an offensive weapon to prevent a police investigation, and two minor matters dealt with on a Form 1. He was committed to the District Court for sentencing on the more serious charges.

The sentencing judge in the District Court imposed an aggregate sentence of 9 years' imprisonment with a non-parole period of 5 years, commencing from the date of arrest on 30 April 2018. The applicant had been in continuous custody from that date.

The applicant sought leave to appeal against the aggregate sentence on grounds relating to how the sentencing judge treated his mental illness and how discounts for the guilty plea and assistance to authorities were calculated and applied.

  • Whether the sentencing judge erred by failing to consider the causal effect of the applicant's schizophrenia on his mental state when assessing the offending, despite unchallenged medical evidence on the point
  • Whether the sentencing judge erred by applying a rigid mathematical rule that a combined discount for guilty plea and assistance could not exceed 40% absent exceptional circumstances
  • Whether the sentencing judge adequately moderated the weight given to general and specific deterrence in light of the applicant's mental illness and assistance to authorities
  • Whether the sentencing judge erred by failing to apply a discount for assistance to all offences, or to the aggregate sentence as a whole
  • Whether the sentencing judge gave adequate reasons on the several elements of s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which governs discounts for assistance

Decision

Mental health. Unchallenged medical evidence established that the applicant suffered from schizophrenia. The Court found the sentencing judge erred by not considering whether that condition had a causal connection to the offending. This was a significant omission: where evidence of mental illness is before a sentencing court, the court must grapple with whether and to what extent the condition bears on the commission of the offences, even if that ultimately reduces the weight to be given to it.

Combined discount cap. The sentencing judge applied a rule that combined discounts for guilty plea and assistance would not ordinarily exceed 40%. The Court held this was an error of principle. As McCallum JA emphasised in her separate observations, the proposition that a combined discount will not generally exceed 50% is not a rigid mathematical ceiling. It is simply an expression of the requirement that the resulting sentence must not be unreasonably disproportionate to the nature and circumstances of the offence. Treating the 40% figure as a hard cap independent of that underlying purpose was wrong.

Discount for assistance. The Court also found error in the failure to apply any discount for assistance to all relevant offences. The applicant had provided assistance to authorities, and that assistance warranted consideration across the sentencing exercise rather than in relation to only some of the charges.

Resentencing. Having identified multiple errors, the Court resentenced the applicant. It applied a 40% combined discount for guilty plea and assistance to four of the earlier offences, and a 35% combined discount to the two most recent armed robbery offences and the pistol and offensive weapon charges. The resulting aggregate sentence was an aggregate non-parole period of 4 years commencing 30 April 2018 (expiring 29 April 2022) with a balance of term of 3 years and 6 months (expiring 29 October 2025), a materially shorter sentence than that imposed below.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence imposed by the District Court at Newcastle on 16 April 2019 quashed
  • Applicant resentenced to an aggregate sentence comprising a non-parole period of 4 years commencing 30 April 2018 and expiring 29 April 2022, with a balance of term of 3 years 6 months expiring 29 October 2025

Key Takeaways

  • A sentencing court must engage with unchallenged medical evidence of mental illness and address whether that condition had a causal connection to the offending; failure to do so constitutes an error of principle.
  • The proposition that combined guilty plea and assistance discounts will not generally exceed 50% is not a rigid mathematical rule. As the Court of Criminal Appeal confirmed, it reflects the requirement that the ultimate sentence not be unreasonably disproportionate to the offending, and applying a lower fixed cap as though it were a legal ceiling is an error.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), adequate reasons must be given for the elements of any discount for assistance, and the discount must be properly applied across the sentencing exercise.
  • Where multiple errors are established on a sentence appeal, the Court of Criminal Appeal will resentence the applicant afresh rather than remit the matter, and the resentenced outcome may differ substantially from the original.
  • Discounts for assistance to authorities are not automatically confined to particular charges; the sentencing exercise requires the court to consider how assistance bears on the overall sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1), s 33B(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23, s 33, s 53A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Firearms Act 1996 (NSW), s 7(1)

Cases
- Aslan v R [2014] NSWCCA 114
- CMB v Attorney-General for NSW (2015) 256 CLR 346
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- DL v The Queen (2018) 265 CLR 215
- Kentwell v The Queen (2014) 252 CLR 601
- Panetta v R [2016] NSWCCA 85
- R v Ellis (1986) 6 NSWLR 603
- R v Henry [1999] NSWCCA 111
- SZ v R [2007] NSWCCA 19
- Z v R [2014] NSWCCA 323