AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 27 March 2023

Stubbings v R

[2023] NSWCCA 69

Assault & violenceTraffic & driving

Citation: Stubbings v R [2023] NSWCCA 69
Court: Court of Criminal Appeal, NSW
Date: 27 March 2023
Judges: Gleeson JA (principal judgment); Davies J and Wilson J (agreeing)

Background

The applicant was charged in February 2019 following a serious incident in which he drove his vehicle onto a footpath and struck a neighbour, causing significant injuries including a deep laceration and degloving to her leg. He was refused bail and remained in custody from the date of his arrest.

After being committed for trial in October 2019, the applicant was found unfit to be tried in April 2020 due to an intellectual disability and treatment with anti-psychotic medication. He was reviewed by the Mental Health Review Tribunal on three occasions, and in April 2021 the Tribunal determined he had become fit to be tried. The applicant ultimately pleaded guilty in the District Court on 8 October 2021, approximately six months after being found fit, just weeks before a scheduled trial date.

The District Court sentenced the applicant to 9 years imprisonment with a 6-year non-parole period for causing grievous bodily harm with intent, and 6 months imprisonment for dangerous driving. The sentencing judge applied a 10 per cent guilty plea discount, reflecting the lateness of the plea. The applicant sought leave to appeal, arguing he was entitled to a 25 per cent discount because his plea was entered "as soon as practicable" after he was found fit to be tried.

  • Whether the sentencing judge erred in concluding the guilty plea was not entered "as soon as practicable" after the applicant was found fit to be tried, for the purposes of s 25D(5)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the applicant could rely on additional evidence on appeal (an affidavit not before the sentencing judge) to establish a procedural irregularity in the sentencing proceedings
  • Whether the absence of that evidence from the sentencing hearing constituted a procedural irregularity causing a miscarriage of justice

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Gleeson JA (with whom Davies J and Wilson J agreed) refused the application to admit the additional affidavit evidence and, in any event, found that even if the evidence had been admitted, it would not have supported the applicant's case.

The applicant's argument was not framed as a conventional sentencing error of the kind described in House v The King. Instead, he contended that the sentencing proceedings miscarried because evidence about events following the fitness finding was never placed before the sentencing judge, depriving him of the opportunity to secure the higher 25 per cent discount under s 25D(5)(a).

The Court examined the timeline carefully. After being found fit to be tried in April 2021, the applicant's legal representatives proceeded toward a trial rather than exploring a guilty plea or applying for remittal to the Local Court. A psychiatric report was not obtained until late July 2021, instructions to plead guilty were not given until 24 September 2021 (following receipt of the report in September), and the plea itself was entered on 8 October 2021. The Court noted that the applicant's own counsel had acknowledged at sentencing that the plea was entered at a late stage and that 10 per cent was the appropriate discount.

Gleeson JA concluded that the new evidence did not suggest the applicant's legal representatives had misunderstood the applicable discount regime or the timing circumstances. Considering all relevant circumstances, including the mandatory considerations in s 25D(6), the submission that the plea was entered as soon as practicable after the April 2021 fitness finding was described as "untenable."

Orders Made

  • Leave to appeal granted
  • Application to admit the affidavit of Mr Hassan sworn 16 August 2022 as additional evidence refused
  • Appeal against sentence dismissed

Key Takeaways

  • Under s 25D(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offender found fit to be tried after committal may access a higher sentencing discount, but only where the guilty plea is entered "as soon as practicable" after the fitness finding. The provision does not automatically extend the higher discount simply because the accused experienced a period of unfitness.

  • The approximately six-month gap between the fitness finding and the guilty plea, during which proceedings were oriented toward trial, retaining an expert, and obtaining advice, was inconsistent with a finding that the plea was entered as soon as practicable.

  • A sentencing applicant seeking to rely on additional evidence on appeal to establish a procedural irregularity faces significant difficulty where that evidence does not demonstrate the sentencing proceedings were conducted on a materially false or incomplete basis.

  • In dismissing the appeal, the Court reinforced that where counsel acknowledged at sentencing the lateness of the plea and the applicability of the 10 per cent discount, it is difficult to establish that the proceedings miscarried for want of further evidence.

  • The Early Appropriate Guilty Pleas scheme, including the option to apply for remittal to the Local Court after a fitness finding, was available to the applicant but was not utilised. The Court noted this without criticising the applicant or his representatives, but treated it as relevant context.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(5), 25D(6), 25F(5)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 11, 13A
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 52
- Road Transport Act 2013 (NSW), s 117(2)
- Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 79(1)(a)

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Black v R [2022] NSWCCA 17
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Barnes v R [2022] NSWCCA 140
- Green v R [2022] NSWCCA 230
- Rae v R [2019] NSWCCA 284
- Zreika v R [2012] NSWCCA 44
- Khoury v R [2011] NSWCCA 118
- R v HC (2017) 325 FLR 59; [2017] ACTSC 276
- R v Diab [2005] NSWCCA 64
- R v Birks (1990) 19 NSWLR 677