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Court of Criminal Appeal 15 December 2022

MH v R

[2022] NSWCCA 287

Assault & violenceDrugsFirearms & weaponsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE EXTENSION OF TIME IN WHICH TO APPEAL APPEAL FILED IN 2021 EXTENSION GRANTED CRIME

Citation: MH v R [2022] NSWCCA 287
Court: NSW Court of Criminal Appeal
Date: 15 December 2022
Judge(s): Ward P, Mitchelmore JA, Lonergan J (Lonergan J delivering the leading judgment)

Background

The applicant had pleaded guilty in the District Court in 2018 to four offences: supply of a prohibited drug, assault with intent to take a motor vehicle (a violent carjacking involving debt recovery), accessory after the fact to discharging a firearm with intent to cause grievous bodily harm, and specially aggravated kidnapping. The kidnapping involved the forcible abduction of a person the applicant and his co-offenders wrongly believed owed them money, during which the victim was assaulted beyond the threshold of actual bodily harm.

The sentencing judge applied a 7% discount for the utilitarian value of the guilty pleas and a further 5% for assistance to authorities, before imposing an aggregate sentence of 7 years and 9 months imprisonment with a non-parole period of 5 years and 3 months. The applicant's assistance to authorities had included providing a telephone number that led to another person being charged with drug and firearms offences and receiving a custodial sentence.

The applicant filed a notice of intention to appeal in August 2018 but did not file the actual appeal until October 2021, requiring an extension of time. The Crown opposed the extension on the basis that the grounds lacked merit.

  • Whether the sentencing judge erred by failing to properly assess the applicant's moral culpability in light of his significantly disadvantaged background, under the principles established in Bugmy v The Queen (2013) 249 CLR 571
  • Whether the 5% discount for assistance to authorities was manifestly inadequate
  • Whether additional evidence about the applicant's deteriorating mental health and significantly worse-than-anticipated custodial conditions should be admitted on appeal as "fresh" or "new" evidence
  • Whether the applicant had a justifiable sense of grievance arising from the sentence imposed on his co-offender in relation to the kidnapping charge, engaging the parity principle

Decision

Ground 1: Moral culpability and disadvantaged background. The Court found no error in the sentencing judge's approach. Where a disadvantaged background has not been shown to be causally connected to the offending, it does not reduce moral culpability. The sentencing judge had nonetheless treated the applicant's background of very substantial disadvantage as a mitigating factor within the instinctive synthesis process. The Court read his Honour's brief remarks as reflecting that approach and found no misapplication of the Bugmy principles.

Ground 2: Adequacy of the assistance discount. The Court found the 5% discount was not manifestly inadequate. The applicant had not given a statement or offered to give evidence against any person. His participation in a trial as a victim of an offence did not constitute assistance in the sense contemplated by s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The assistance actually provided was limited to supplying a telephone number, and the Court identified no misapplication of principle or error in the sentencing judge's reasoning.

Ground 3: Additional evidence on appeal. The Court declined to admit the additional material the applicant sought to tender. Some of it was "new" evidence that could have been led at the sentence hearing but was not, and it had no capacity to affect re-sentencing in any event. Other material, evidencing a decline in the applicant's mental health since sentence, qualified as "fresh" evidence but the circumstances it described were not exceptional. A deterioration in mental health arising from being in custody did not meet the threshold required for admission on appeal.

Ground 4: Parity with co-offender. The co-offender had been sentenced by a different judge who had specifically considered the parity question and analysed the original sentencing remarks with care. The co-offender had a substantially stronger subjective case: it was his first period of imprisonment, he demonstrated genuine remorse, his rehabilitation prospects were assessed as good, his risk of reoffending was low, and there were no aggravating factors. The applicant's level of criminality in the kidnapping was also greater, as he was motivated by a debt owed directly to him, whereas the co-offender was characterised as a "misguided foot soldier." The Court found no justifiable sense of grievance.

Orders Made

  • Time extended within which to file a notice of appeal until 13 October 2021
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under Bugmy v The Queen, a disadvantaged background does not automatically reduce an offender's moral culpability; a causal connection between the background and the offending must be established before culpability is reduced, though the background may still be weighed as part of instinctive synthesis even without that connection.
  • Participating in a criminal trial as a victim of an offence does not constitute "assistance to authorities" within the meaning of s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW); only conduct such as providing information or offering to give evidence against others qualifies.
  • Fresh evidence of mental health deterioration in custody will not be admitted on a sentence appeal unless the circumstances are genuinely exceptional; a decline in mental health attributable to the ordinary conditions of imprisonment generally does not meet that threshold.
  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that a justifiable sense of grievance requires more than a difference in sentences; it requires a marked disparity not adequately explained by differences in criminality and subjective circumstances between co-offenders.
  • No error of principle was required for an extension of time to be granted, but where the Crown opposed the extension on merit grounds, the Court considered the strength of the proposed grounds as part of its assessment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(3), 154C(2), 350
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Brierley v The Queen [2022] NSWCCA 26
- Fordham v R (1997) A Crim R 359
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Judge v R [2018] NSWCCA 203
- Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207
- Perkins v R [2018] NSWCCA 62
- R v Chaaban [2006] NSWCCA 107
- R v Dungay [2020] NSWCCA 209
- R v Munday [1981] 2 NSWLR 177
- R v Vachalec (1981) 1 NSWLR 351; [1981] NSWCCA 26
- WM v R [2020] NSWCCA 96
- Wright v R [2016] NSWCCA 122