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Court of Criminal Appeal 15 November 2024

Knight v R

[2024] NSWCCA 211

Assault & violenceTheft & propertyPublic order & justice offences
CRIME APPEAL AGAINST SENTENCE AGGREGATE SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Knight v R [2024] NSWCCA 211
Court: Court of Criminal Appeal, NSW
Date: 15 November 2024
Judges: Leeming JA, Campbell J, Fagan J

Background

The appellant was an Aboriginal woman who pleaded guilty in the District Court to three serious offences arising from a home invasion at a Marrickville unit in February 2020. The offences were: aggravated break and enter and commit a serious indictable offence (robbery) in company; reckless wounding in company; and concealing a serious indictable offence (namely, an aggravated sexual assault carried out by a co-offender during the same incident). Two common assault charges were taken into account on a Form 1.

The sentencing judge imposed an aggregate sentence of 9 years with a non-parole period of 5 years and 6 months. The appellant received a 5% discount on two counts (guilty pleas entered the day after trial was due to commence) and a 25% discount on the third count (an earlier guilty plea). Special circumstances were found, reducing the non-parole period to 61% of the head sentence.

The appellant had experienced severe and prolonged sexual and physical abuse from her early teenage years, resulting in significant psychological harm including Chronic Complex Post Traumatic Stress Disorder. A detailed psychologist's report was tendered at sentencing and was unchallenged. The appellant sought leave to appeal out of time, raising two grounds: that the sentencing judge failed to recognise a causal connection between her mental conditions and the offending, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to find a causal link between the appellant's mental conditions and her offending conduct, thereby failing to reduce her moral culpability or the weight given to general deterrence
  • Whether the aggregate sentence of 9 years was manifestly excessive having regard to the appellant's subjective circumstances and comparable sentences

Decision

Ground 1: Causal link between mental condition and offending

The Court, in reasons delivered by Fagan J (with Leeming JA and Campbell J agreeing), dismissed the first ground on the basis that no causal connection between the appellant's mental conditions and her offending was proved or argued at the sentence proceedings. While the psychologist's report comprehensively documented the appellant's history of abuse and its psychological consequences, it did not establish that those conditions caused or contributed to the commission of the offences. A causal link cannot simply be inferred; it must be demonstrated before it can reduce moral culpability or the weight afforded to general deterrence.

Ground 2: Manifest excess

The Court rejected the second ground as well. Fagan J drew a distinction between the principles in Bugmy v The Queen and R v Fernando, which address mitigating factors arising from family or societal dysfunction experienced by Indigenous offenders, and the distinct subjective factor present here: psychological harm caused by interpersonal (as opposed to broader societal or familial) abuse. The applicant's circumstances engaged the latter, but the Court found the sentencing judge had appropriately considered her subjective circumstances without falling into error.

The Court also examined the indicative sentence for count 1 against comparable cases involving aggravated break and enter in company. It found the comparison exercise of limited utility, given the infinite variability of the particular facts in each case. No individual indicative sentence, nor the aggregate, was shown to be markedly out of line with sentencing outcomes in analogous matters.

Orders Made

  • Leave granted to the appellant to rely on her notice of appeal notwithstanding it was filed out of time
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A causal connection between an offender's mental health conditions and their offending conduct must be proved or argued at sentence proceedings before it can reduce moral culpability or diminish the weight given to general deterrence; it cannot be inferred from the existence of psychological harm alone.
  • The principles in Bugmy and Fernando, which treat family and societal dysfunction as mitigating factors in sentencing Indigenous offenders, are conceptually distinct from the subjective factor of psychological harm caused by interpersonal abuse; the two categories do not automatically overlap.
  • In dismissing the manifest excess ground, the Court reaffirmed that comparing sentences across cases involving the same statutory offence is of limited utility, given the highly variable factual circumstances that bear on objective seriousness.
  • No error was established in the sentencing judge's treatment of the appellant's subjective circumstances, notwithstanding the detailed and unchallenged psychological evidence before the court.
  • Leave to appeal out of time may be granted even where the appeal is ultimately unsuccessful on the merits.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(3), 112(2), 316(1)

Cases
- Adams v R [2018] NSWCCA 139
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Ebsworth v R [2020] NSWCCA 229
- Jackson v R [2023] NSWCCA 121
- Johnston v R [2021] NSWCCA 86
- Kerwin v R [2018] NSWCCA 23
- Pham v R [2019] NSWCCA 211
- R v Fernando (1992) 76 A Crim R 58
- R v Meatuai [2016] NSWCCA 42