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Court of Criminal Appeal 7 March 2025

R v Weldon

[2025] NSWCCA 21

Traffic & drivingDomestic & family violence
CRIME APPEALS CROWN APPEAL MANIFEST INADEQUACY EXERCISE OF THE RESIDUAL DISCRETION

Citation: R v Weldon [2025] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 7 March 2025
Judges: Davies J; Yehia J; R A Hulme AJ

Background

The respondent pleaded guilty in the District Court at Newcastle to dangerous driving occasioning grievous bodily harm and failing to stop and assist after a vehicle impact occasioning grievous bodily harm, both under the Crimes Act 1900 (NSW). The offending arose from an incident in June 2022 in the Hunter Valley, where the respondent drove his vehicle while heavily intoxicated and struck the victim, who was 20 years old at the time, before leaving the scene without rendering assistance.

The sentencing judge imposed an aggregate term of 2 years and 4 months' imprisonment, to be served by way of an Intensive Correction Order (ICO). Each offence carried a maximum penalty of 7 years' imprisonment. A 25 per cent discount was applied to reflect the utilitarian value of the early guilty pleas.

The Crown appealed the sentence on three grounds: that the sentencing judge impermissibly treated self-induced intoxication as a mitigating factor, that the judge approached the ICO determination in the wrong order, and that the aggregate sentence was manifestly inadequate.

  • Whether the sentencing judge took into account the respondent's self-induced intoxication as a mitigating factor, contrary to s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the sentencing judge erred by considering the availability of an ICO before determining the appropriate length of the sentence of imprisonment
  • Whether the aggregate sentence of 2 years and 4 months was manifestly inadequate
  • Whether, if manifest inadequacy was established, the Court should exercise its residual discretion to decline to interfere with the sentence

Decision

Ground 1: Intoxication as a mitigating factor
The Court found that the sentencing judge did not treat self-induced intoxication as a mitigating factor in breach of s 21A(5AA). The judge was entitled to consider the interplay between the respondent's mental health conditions, alcohol addiction, and deprived childhood when assessing moral culpability. These were properly distinct matters from the intoxication itself. Ground 1 was not made out.

Ground 2: ICO sequencing error
The Court acknowledged that the sentencing judge did not explicitly articulate the required three-step approach to imposing an ICO in his remarks on sentence. However, the Court found that this omission did not demonstrate error, noting that the transcript of proceedings showed the judge was alive to the correct approach. Abundant guidance exists for sentencing judges on this question. Ground 2 was not made out.

Ground 3: Manifest inadequacy
The majority accepted that the aggregate sentence failed to reflect the objective seriousness of the offending and the totality of the criminality involved, notwithstanding the respondent's compelling subjective circumstances. Ground 3 was made out by the full bench.

Residual discretion
Despite finding manifest inadequacy, the majority (Yehia J and Davies J) exercised the residual discretion to decline to interfere with the sentence. The Court emphasised the respondent's sustained commitment to rehabilitation, his completion of substantial community work obligations, and the finding that interrupting that progress would likely derail his rehabilitation. The majority held it was in the public interest to allow rehabilitation to continue in the community. R A Hulme AJ dissented, finding that the combined weight of punishment, accountability, denunciation, recognition of harm, and general deterrence outweighed the interest in rehabilitation, and that the sentence was so unreasonably lenient as to be an affront to the administration of justice. His Honour proposed an aggregate sentence of 3 years and 9 months' imprisonment.

Orders Made

  • The Crown appeal was dismissed by majority (Davies J and Yehia J), with R A Hulme AJ dissenting on the exercise of the residual discretion.

Key Takeaways

  • A sentencing judge who does not explicitly set out the three-step ICO approach in remarks on sentence does not thereby commit a reviewable error, provided the transcript demonstrates the correct approach was understood and applied.
  • Under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW), self-induced intoxication cannot be used as a mitigating factor, but a sentencing judge may still consider the interaction between a background of alcohol addiction, mental health issues, and deprivation when assessing moral culpability.
  • In dismissing the appeal despite a finding of manifest inadequacy, the majority confirmed that the residual discretion to decline to interfere with a lenient sentence remains available where evidence of sustained rehabilitation and community benefit is compelling.
  • Rehabilitation is better facilitated in the community, and the Court of Criminal Appeal may decline to resentence even where an ICO is found to inadequately reflect objective seriousness, if doing so would derail demonstrated and ongoing rehabilitative progress.
  • The dissent illustrates the tension between rehabilitation as a sentencing purpose and the competing demands of general deterrence, denunciation, and public confidence in the criminal justice system, particularly for serious driving offences causing grievous bodily harm.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A(3)(c), 52A(9), 52AB(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5AA), 44(2B)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Key Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9
- Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Mustafa v R [2021] NSWCCA 164
- R v Greaves [2014] NSWCCA 194
- R v Cahill [2015] NSWCCA 53
- R v FF [2023] NSWCCA 186
- Zheng v R [2023] NSWCCA 64
- R v Zamagias [2002] NSWCCA 17
- R v Millwood [2012] NSWCCA 2
- R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264