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Court of Criminal Appeal 2 September 2022

Anderson v R

[2022] NSWCCA 187

Assault & violence
PAROLE PERIOD RELIANCE UPON DSM LABELLED CONDITIONS CONSIDERATION OF BARBARO V THE QUEEN

Citation: Anderson v R [2022] NSWCCA 187
Court: Court of Criminal Appeal, NSW
Date: 2 September 2022
Judges: Bell CJ; Davies J; Fagan J

Background

The appellant was convicted by jury of recklessly wounding another person, contrary to s 34 of the Crimes Act 1900 (NSW), following an incident in Port Macquarie in March 2020. The offence arose from a late-night street altercation in which the appellant, after the victim accidentally struck his partner, picked up a piece of broken glass and delivered two slashing blows to the victim's face. The victim suffered permanent facial scarring, and the wounds came close to damaging his eye.

In the District Court, the sentencing judge imposed a term of 2 years and 6 months' imprisonment with a non-parole period of 1 year and 3 months. The judge applied a 25% discount for an early plea that had been offered at the Local Court stage. The maximum penalty for the offence is 7 years' imprisonment, and the prescribed standard non-parole period is 3 years.

The appellant sought leave to appeal against sentence on four grounds: misuse of the standard non-parole period, failure to account for mental health diagnoses, manifest excess, and alleged error arising from Crown submissions about the sentencing range.

  • Whether the sentencing judge erred in giving greater weight to the standard non-parole period because the appellant had pleaded not guilty at trial.
  • Whether the judge failed to take into account the appellant's diagnosed borderline intellectual functioning and persistent depressive disorder (dysthymia), as defined in the DSM-5.
  • Whether the sentence was manifestly excessive.
  • Whether the sentence miscarried because the Crown Prosecutor submitted that a sentence of less than two years might constitute appellable error.

Decision

Ground 1: Standard non-parole period. The Court found no error in the sentencing judge's treatment of the standard non-parole period. The judge had correctly used it as a reference point and had not, on a proper reading of the remarks on sentence, treated the appellant's decision to plead not guilty as an aggravating factor when determining how to apply the standard.

Ground 2: Mental health and cognitive evidence. The Court examined the psychologist's report concerning the appellant's borderline intellectual functioning and persistent depressive disorder. The Court acknowledged the relevance of both conditions but found no demonstrated error in the sentencing judge's engagement with this material. The Court offered observations on the use of DSM-labelled diagnoses in sentencing proceedings, noting that courts must be careful not to treat diagnostic labels as self-evidently establishing the degree of moral culpability to be attributed to a condition. The substance and effect of the condition on the offender's functioning remains the relevant inquiry, not the label itself.

Ground 3: Manifest excess. The Court rejected the contention that the sentence was manifestly excessive. Having regard to the nature of the offending (a deliberate glass attack to the face of a fallen person), the objective seriousness assessed by the sentencing judge as below mid-range but toward mid-range, and the subjective features of the appellant including limited significant criminal history and low-to-medium risk of reoffending, the sentence was not shown to fall outside the acceptable range.

Ground 4: Crown Prosecutor's submissions. The Court rejected this ground as misconceived. The Crown Prosecutor had submitted, in response to indications from the bench, that a sentence of two years or less served by intensive correction order might be manifestly inadequate. The Court held this was a proper exercise of the prosecutor's duty to assist the court in avoiding appellable error, a duty recognised in R v Tait and Bartley, Everett v The Queen, R v Wilton, and R v Jermyn. This was not equivalent to the impermissible practice of "giving a range" disapproved in Barbaro v The Queen; it was a statement of the Crown's position on adequacy of sentence, which the prosecutor was duty-bound to make.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A prosecutor who submits that a proposed sentence may be manifestly inadequate is discharging a recognised duty to assist the court in avoiding appellable error, and that submission does not constitute impermissible "range" advocacy of the kind disapproved in Barbaro v The Queen.

  • The Court of Criminal Appeal confirmed that where a prosecution concession might bear on the question of whether a court of appeal should intervene, its weight will depend on all the circumstances, and a concession on non-custodial disposition can weigh significantly against appellate intervention.

  • DSM-5 diagnostic labels are not treated as self-sufficient indicators of reduced moral culpability in sentencing; the court's inquiry focuses on the actual effect of a condition on the offender's functioning and conduct.

  • No error is established merely because a sentencing judge references the standard non-parole period alongside a finding that the offender pleaded not guilty, provided the judge does not use the not-guilty plea itself as a factor in aggravation.

  • In dismissing all four grounds, the Court confirmed that objective seriousness assessed as "below but toward mid-range," combined with limited violent criminal history and a meaningful plea discount, does not necessarily produce a manifestly excessive result when the conduct involves a deliberate weapon attack causing permanent injury.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 34, 35(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- 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
- Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
- R v Jermyn (1985) 2 NSWLR 194
- R v MacNeil-Brown (2008) 20 VR 677
- R v Tait and Bartley (1979) 24 ALR 473
- R v Wendy Olive Lawrence [2005] NSWCCA 91
- R v Wilton (1981) 28 SASR 362