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Court of Criminal Appeal 23 June 2023

Henwood v R

[2023] NSWCCA 154

Assault & violence

Citation: Henwood v R [2023] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 23 June 2023
Judges: Bell CJ, Wilson J, Sweeney J

Background

The appellant was sentenced in the District Court to 14 years imprisonment with a non-parole period of 10 years for one count of causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence occurred on 27 June 2019, when the appellant doused his half-brother in petrol and set him alight at the family home in Wellington. The maximum penalty for the offence is 25 years imprisonment, with a standard non-parole period of seven years.

The victim suffered full thickness burns to 68% of his body and underwent seven surgical procedures. He sustained permanent and severe injuries, including an inability to regulate body temperature, loss of mobility, dependence on a carer, and a reduced life expectancy. The sentencing judge assessed the offending as of high, though not the highest, objective seriousness.

The appellant sought leave to appeal out of time, explaining delays caused by Covid lockdown restrictions and transfers between correctional facilities. He filed his Notice of Intention to Appeal 42 days after sentence, rather than within the required 28 days.

  • Whether the sentence of 14 years imprisonment with a 10-year non-parole period was manifestly excessive.
  • Whether the sentencing judge failed to adequately take into account the appellant's mental illness and its link to the offending.
  • Whether the sentencing judge conflated or misapplied the principles of general deterrence and denunciation.

Decision

Sweeney J (with Bell CJ and Wilson J agreeing) granted leave to appeal but dismissed the appeal. The Court found that the sentencing judge had given careful and demonstrable consideration to the appellant's mental health, including the agreed nexus between his mental illness and the offending. Her Honour accepted that the appellant's mental health reduced his moral culpability and would make his time in custody more difficult.

The sentencing judge also acknowledged that the link to mental illness justified some reduction in the weight given to both general and specific deterrence. However, she was entitled to find that general deterrence still "loomed large" given the serious nature of the offending, and that specific deterrence retained relevance because of the appellant's impulsivity and anger management issues, which posed an ongoing risk to the community.

The Court emphasised that mental illness does not automatically produce a more lenient sentence. Citing established authority, Sweeney J noted that it remains necessary for a sentencing court to examine the relevant facts to determine whether, in the specific case, a mental condition actually produces the consequence contended for by the offender. No such presumption exists.

The appellant failed to demonstrate any error in the sentencing judge's reasoning, whether in her treatment of mental illness or her application of deterrence and denunciation principles. The sentence was not unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's treatment of the appellant's mental illness, where her Honour expressly accepted a link between the illness and the offending and reduced the weight given to deterrence accordingly.
  • A finding that mental illness reduces moral culpability does not eliminate the role of general deterrence, particularly where the offending is of high objective seriousness.
  • Under established NSW sentencing principles, there is no presumption that mental illness calls for a more lenient outcome; the sentencing court must assess the specific facts to determine the actual effect of the mental condition on the relevant sentencing considerations.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing judges retain considerable latitude to balance competing sentencing purposes, including denunciation and deterrence, even where mental illness is an accepted mitigating factor.
  • The sentence incorporated a 25% discount for an early guilty plea and a slight reduction from the statutory non-parole period ratio, both of which the Court of Criminal Appeal left undisturbed.

Legislation and Cases Referenced

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

Cases
- Aslan v R [2014] NSWCCA 114
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Muggleton v R [2015] NSWCCA 62
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 49
- R v Fouani [2018] NSWCCA 230
- The Queen v Kilic [2016] HCA 48
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14