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Court of Criminal Appeal 23 June 2023

Ritchie v R

[2023] NSWCCA 153

Assault & violence

Citation: Ritchie v R [2023] NSWCCA 153
Court: Court of Criminal Appeal, NSW
Date: 23 June 2023
Judges: Adamson JA at [1]; McNaughton J at [20]; Sweeney J at [22]

Background

The applicant pleaded guilty in the Local Court to wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900 (NSW). He was 19 at the time of the offence and 20 at sentence. The sentencing judge in the District Court imposed 8 years imprisonment with a non-parole period of 5 years and 8 months.

A co-offender, Mr Russell, was sentenced for the same offence. After a 10% discount for a late guilty plea, Mr Russell received 2 years imprisonment to be served by way of an Intensive Correction Order (a community-based custodial alternative, not full-time imprisonment).

The applicant had a deeply disadvantaged background: inadequate parenting, exposure to domestic violence, substance abuse, and diagnoses of persistent depressive disorder and a personality disorder with antisocial and borderline traits. He sought leave to appeal against his sentence on two grounds.

  • Whether the sentencing judge erred in applying parity principles, given the substantial disparity between the sentence imposed on the applicant and that imposed on his co-offender Mr Russell (Ground 1)
  • Whether the sentence of 8 years imprisonment with a non-parole period of 5 years and 8 months was manifestly excessive (Ground 2)
  • Whether, as a matter of established practice, the manifest excess ground should be addressed before the parity ground
  • How the applicant's disadvantaged background and mental health conditions (the Bugmy principles) should bear on resentencing

Decision

Order of grounds. Adamson JA (McNaughton J agreeing) addressed the established practice of considering parity last. A parity challenge assumes the sentence is otherwise correct, so it is logically addressed only after all other grounds have been resolved. If another ground succeeds and the Court must resentence, parity considerations feed into that fresh sentencing exercise in any event. Sweeney J took the parity ground first and found it determinative, making it unnecessary for her Honour to address manifest excess.

Manifest excess (Adamson JA, McNaughton J agreeing). The sentence of 8 years with a non-parole period of 5 years and 8 months was manifestly excessive. The applicant's youth, deprived background, and diagnosed mental health conditions all bore on his moral culpability and reduced the weight to be given to general and specific deterrence. Those factors required substantial weight to be given to rehabilitation, warranting a greater departure from the standard non-parole period ratio than the sentencing judge allowed.

Parity (Sweeney J, Adamson JA and McNaughton J not deciding it necessary). Sweeney J held that the differences between the applicant and Mr Russell did not justify the degree of disparity in their sentences. The objective seriousness of the offences, the plea discounts applied at different stages of proceedings, and the personal circumstances of each offender did not support sentences as divergent as those imposed. A co-offender serving an Intensive Correction Order while the applicant served more than 8 years created a justified sense of grievance.

Resentencing. The Court reduced the sentence to 5 years imprisonment with a non-parole period of 3 years. The applicant's youth, mental health conditions, substance abuse linked to self-medication, and lack of prior guidance or treatment all warranted significant weight on rehabilitation. The non-parole period was set well below the standard statutory ratio to allow for supervised treatment on release. The Court also noted the additional hardship of extended COVID lockdowns during his time in custody, confirmed by Crown evidence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant resentenced to a non-parole period of 3 years imprisonment commencing 31 December 2020, with an additional term of 2 years, making a total sentence of 5 years imprisonment
  • Non-parole period to expire 30 December 2023; sentence to expire 30 December 2025

Key Takeaways

  • The Court of Criminal Appeal confirmed the long-standing practice that a parity ground should be addressed last, because it presupposes the sentence is otherwise correct. If another ground succeeds and resentencing follows, parity is factored into that fresh exercise.
  • A significant sentencing disparity between co-offenders for the same offence can give rise to a justified sense of grievance, particularly where the differences in objective seriousness and personal circumstances do not adequately explain the gap.
  • Under the Bugmy principles, an offender's deprived and disadvantaged background retains its mitigating weight at sentencing regardless of prior criminal history, and does not diminish in significance simply because the offender has reoffended.
  • Where an applicant's youth and mental health conditions are linked to the offending, those factors reduce moral culpability and the weight to be given to general and specific deterrence, and increase the weight afforded to rehabilitation.
  • Departing substantially below the standard non-parole period ratio can be justified where an offender requires extended post-release supervision and treatment, particularly when the offender is young, has untreated mental health conditions, and has not previously had access to rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Li v R [2021] NSWCCA 75; (2022) 400 ALR 578
- Kitson v R [2022] NSWCCA 166
- Chamon v R [2020] NSWCCA 112
- Lewis v R [2021] NSWCCA 108
- DS v R [2014] NSWCCA 267
- Miles v R [2017] NSWCCA 266
- Er v R [2018] NSWCCA 286
- Estephan v R [2015] NSWCCA 100
- England v R; Phanith v R [2009] NSWCCA 274
- Gill v R [2010] NSWCCA 236
- C v R [2022] NSWCCA 285
- Carr v R [2014] NSWCCA 202
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194