Extend the time for bringing an application for leave to appeal up to and including 28 June 2013. Grant the applicant leave to appeal against the sentence imposed on him on 20 February 2009. Allow the appeal. The sentences imposed by the District Court on 20 February 2009 on the applicant be quashed and the following sentences be passed in substitution therefor: Count 1: recklessly cause grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW), a non-parole period of 3 years and 6 months commencing 6 April 2008 and concluding 5 October 2011 with a remainder of term of 18 months concluding 5 April 2013; Count 3: malicious damage, contrary to s 195(1)(a) of the Crimes Act 1900, a fixed term of 1 month to commence 6 April 2008 and conclude 5 May 2008; Count 4: sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, a non-parole period of 4 years, commencing 2 April 2010 and concluding 1 April 2014 with a remainder of term of 1 year concluding 1 April 2015; Count 5: assault, contrary to s 61 of the Crimes Act 1900, a fixed term of 3 months, commencing 2 April 2010 and concluding 1 July 2010; Count 7: sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, a non-parole period of 4 years, commencing 6 August 2011 and concluding 5 August 2015 with a remainder of term of 4 years concluding 5 August 2019. The overall sentence is imprisonment of 11 years and 4 months consisting of an overall non-parole period of 7 years and 4 months, commencing 6 April 2008 and concluding 5 August 2015, with a remainder of term of a further 4 years concluding 5 August 2019. The applicant is first eligible for parole on 6 August 2015.
Catchwords:
CRIMINAL LAW – appeal against sentence – Muldrock error – error in using finding of special circumstances to increase head sentence – error in imposing fixed sentence for offence with standard non-parole period – whether error in sentencing judge’s treatment of psychiatric evidence not considered as other grounds of appeal established APPEAL – extension of time granted as error disclosed and as in interests of justice – consideration of operation of s 6(3) of the Criminal Appeal Act 1912 – leave to appeal granted as error not immaterial – court of appeal to re-exercise the sentencing discretion afresh – CRIMINAL LAW – SENTENCING – objective circumstances of offending were serious – subjective circumstances of appellant lessen need for specific and general deterrence – appellant’s social exclusion from Aboriginal culture contributed to his offending– sentence reduced to 7 years and 4 months non parole with…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kentwell v R (No 2) [2015] NSWCCA 96
Case
[2015] NSWCCA 96
Decision Date
CaseChat Overview and Summary
The appellant, Kentwell, appealed against the sentence imposed by the Supreme Court of New South Wales. The primary issue was whether the sentence imposed was legally sound and whether the identified errors warranted a re-sentencing. The appeal raised questions about the sentencing process, including the application of the principles in R v Way, the use of special circumstances to increase the head sentence, and the imposition of a fixed sentence for an offence with a standard non-parole period. Furthermore, the court examined whether the sentencing judge's treatment of the psychiatric evidence was erroneous.
The Court of Appeal found that there were identifiable errors in the sentencing process. The sentencing judge had applied the principles in R v Way, as opposed to the later established principles in Muldrock. Additionally, the judge had increased the length of the head sentence based on special circumstances, resulting in a longer term of imprisonment for one offence. The court also noted that a fixed term of imprisonment was set for an offence carrying a standard non-parole period, which was inconsistent with the provisions of the Crimes (Sentencing Procedure) Act. The court found these errors to be significant enough to warrant a re-sentencing, subject to the operation of s 6(3) of the Criminal Appeal Act 1912 and the grant of leave to appeal. The Court of Appeal concluded that the appellant's social exclusion from Aboriginal culture contributed to his offending, which lessened the need for specific and general deterrence. The objective circumstances of the offending were serious, but the subjective circumstances of the appellant were taken into account. As a result, the sentence was reduced to 7 years and 4 months non-parole with the balance of the term being 4 years.
In light of the above findings, the Court granted the extension of time for the appellant to appeal the sentence. The court of appeal re-exercised its sentencing discretion afresh and imposed a new sentence on the appellant. The final orders of the court included the reduction of the appellant's sentence to 7 years and 4 months non-parole with the balance of the term being 4 years.
Orders
Orders of the court
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Background
Background to the litigation
The application for extension of time came before the Court and was dealt with by judgment dated 14 November 2013: the first appeal judgment. The extension of time was refused. From that judgment the appellant successfully appealed to the High Court of Australia. The order of the High Court of Australia set aside the first appeal judgment and remitted the application for extension of time to the Court for determination.Facts The first appeal judgment summarised the facts relating to the matter, which summary is taken from the Remarks on Sentence. No issue is taken with the summary, which is in the following terms:“[12] At the time of the offending, the applicant had known the victim for about four years. From about January 2007 they formed an intimate relationship as a result of which the applicant would stay over at the victim’s premises four or five nights per week. In August 2007 the victim made a complaint to the police about the applicant and he was charged with various offences including assault, stealing and contravening a domestic violence order. He was released on bail and thereafter renewed his relationship with the victim.[13] On the afternoon of 29 October 2007 the applicant went to the victim’s home when he was affected by alcohol. When the victim was in the kitchen making coffee, the applicant approached her from behind and poured liquid over her head. Without warning he then smashed a beer bottle over her head causing her to fall to the floor. As the victim lay on the floor the applicant kicked her several times in the ribs, causing her immediate pain and difficulty breathing. The applicant refused the victim’s request to call an ambulance.[14] The victim tried to leave the premises and told the applicant she was going to her sister’s. As she walked outside the applicant grabbed her by the hair and pulled her to the ground. He then kicked her in the chest area and pulled her back inside. Once inside the applicant again kicked the victim before ordering her to get up.[15] There then followed an interlude as the applicant tried to comfort the victim, telling her to sit next to him on the couch. The victim did so out of fear but within a short period the applicant started yelling at her and began to throw various objects within his reach including the victim’s mobile phone, remote controls for the television and DVD player, an ash tray and a glass candle holder that smashed at the other end of the room.[16] When the victim went over and knelt down to pick up the smashed candle holder the applicant again attacked her, hitting her over the head and shoulders with a metal bracket from an air conditioner. The applicant then appeared to calm down and sat in the lounge room. Because she was in fear of the applicant, the victim did not leave the premises or contact the police. She continued to experience difficulties with her breathing, her head was sore, she was aching and she felt nauseated. She went to the bathroom and showered before getting into bed.[17] The applicant then called out to the victim from the lounge room asking if she wanted a “doorey”, which meant sex. The victim said no. Over the course of the next few hours the applicant repeatedly requested sex, and the victim repeatedly refused.[18] The applicant then came into the bedroom. The victim again told him that she did not want to have sex as she was in too much pain from the earlier assaults. The applicant said:Fucking girls only have to spread their fucking legs. It won’t hurt.[19] The victim did not want to have sex with the applicant but at this time could see that he was not going to stop his demands. Accordingly, she said to him:If you do it just get it over and done with quickly.[20] The applicant then removed the victim’s underpants and commenced penile intercourse by penetrating her vagina from behind. The applicant was much larger than the victim and as a consequence, she was affected by his heavy weight and experienced severe pain. She begged the applicant to stop and she started to cry. The applicant allowed her to move into a foetal position but did not stop the intercourse and told her to “stop blubbering”. The applicant continued to have penile/vaginal sexual intercourse until he ejaculated.[21] After the intercourse had ended, the applicant remained in the bed. The victim attempted to sleep but was unable to do so because of her pain. She did not leave as she was in fear of the applicant and as the night continued her breathing was laboured. The applicant complained that she was making too much noise and told her to “shut up”.[22] The following morning the applicant awoke at about 7.30 am and asked for sex. The victim replied:No Didge, I can’t because I can’t do this. You can’t keep doing this to me anymore.[23] The applicant then left the premises, following which the victim sought treatment from a medical centre. She was diagnosed (without X-Rays being taken) as having fractured ribs and was told to take painkillers. She returned to her home and went back to bed.[24] On 2 November 2007 the victim saw her General Practitioner. X-Rays taken on that occasion established that she had fractures to her fifth, sixth and seventh right ribs, as well as to her fourth left rib. There was also evidence of trauma to her fifth and sixth left ribs.[25] Later that same afternoon, the applicant arrived at the victim’s premises with a companion named Nash. The applicant and Nash started drinking in the lounge room and as the applicant became affected by the alcohol he started to accuse the victim of sleeping with Nash. The victim denied this allegation and told Nash to leave. The applicant and the victim sat together on the lounge, at which time the applicant began igniting a cigarette lighter on and off, at one point applying the flame to the victim’s forearm. After she pulled her arm away the applicant began lighting small pieces of paper on the coffee table before beginning to hit the victim whilst calling her a “fucking mole” and a “whore”. He then started to twist her arm, at which time she retreated to the bathroom. The applicant continued to accuse the victim of having “sex with wogs” before telling her to “get her arse out of the bathroom”. The victim went back into the bedroom where the applicant grabbed her and held her up against the wall next to a cupboard.[26] The applicant then said he wanted something to eat, at which point the victim made a meal for him, before going to bed. The applicant then asked her for sex. The victim repeatedly said she did not want to, telling the applicant she was in too much pain. The applicant responded by saying:Just spread your legs. That’s all you have to do.[27] The victim again told the applicant that she was unable to breath properly and that the pain was too much, to which the applicant responded:You won’t feel it.[28] Feeling that she had no choice, and although she did not want to have sex with the applicant, the victim said:Just get it over and done with please and hurry.[29] The applicant then commenced to have penile vaginal sex with the victim as she lay on her stomach. As he did so, the victim experienced severe pain to her injured ribs and chest, telling the applicant:I don’t want to do it …. I’ve got broken ribs …. Didge I can’t do this. I can’t do this anymore. I can’t.[30] The applicant ignored these pleas, and continued until he ejaculated.[31] On 6 November 2007 the applicant again sought medical attention and on this occasion disclosed that she had been sexually assaulted. She then made a statement to police.”Grounds of Appeal
Evidence
Evidence Before The Court
On the basis of authority of this Court, it was inconsistent with the combined effect of the provisions of s 44(1) and s 45(1) of the Crimes (Sentencing Procedure) Act to impose a fixed sentence for an offence for which a standard non-parole period has been prescribed. As a consequence, there is error in the process of fixing that sentence and this ground of appeal has been made out.Ground 4: The Consideration of the Psychiatric Evidence His Honour below analysed the evidence before him. In particular his Honour referred to the two reports of Dr Allnutt of 11 September 2008 and 19 February 2009. He quoted, at some length, from each report. As is correct, his Honour noted that the opinion of the psychiatrist was entirely dependent on the psychiatrist’s acceptance of that which the offender had told him. His Honour expressed a degree of scepticism as to the truth of those statements. Having done so, his Honour, nevertheless, took Dr Allnutt’s reports and opinion “at face value”, because of Dr Allnutt’s renowned reputation as a respected forensic psychologist. However, his Honour took the view that the offender’s medical condition did not justify his behaviour and did not have any connection with the sexual offences. His Honour was entitled to come to that view. I note that for mental illness to be an ameliorating factor in sentence, the illness need not be causative or connected to the commission of the offences; it need only be relevant to moral culpability or such as to diminish the appropriateness of the offender as a vehicle for general deterrence or denunciation. In the first appeal, the Court upheld this ground. I am not so convinced that the ground is made out, but in the circumstances of the other errors, this ground could have no effect on the result of the appeal. Whether the ground is made out depends on the manner in which the sentencing judge utilised the lack of connection and his Honour’s comments seem to disclose some ambivalence in that regard. It is unnecessary to deal with the ground further.Consideration of the Appeal There is identifiable error in the sentencing process, based upon that which is stated in the Remarks on Sentence. Those errors include at least the application of the principles in R v Way, as distinct from the principles later established in Muldrock; an increase in the length of the head sentence on account of special circumstances, resulting in a lengthier term of imprisonment being imposed for one offence; and the setting of a fixed term of imprisonment for an offence which carried a standard non-parole period. The grounds of appeal do not suggest that there is manifest excess. Nor do the grounds of appeal criticise the sentencing judge’s application of the principles of totality or suggest manifest error in the application of those principles. Nevertheless, there is identifiable error conceded by the Crown and, subject to the grant of leave to appeal and the effect of s 6(3) of the Criminal Appeal Act, re-sentencing should occur.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
While I do not suggest that the foregoing would always determine an application for an extension of time in which to appeal a sentence, given the disclosed errors and the interests of justice, it is sufficient to warrant the grant of an extension of time to appeal against the sentence imposed on the appellant in this case and I would propose that the Court grant the extension of time for which the appellant applies. The Crown, in this appeal, does not oppose the extension of time.The operation of s 6(3) of the Criminal Appeal Act 1912 As stated, subject to the operation of s 6(3) of the Criminal Appeal Act 1912 and the grant of leave to appeal, given that the extension of time is to be granted, re-sentencing must occur. In that context, the operation of s 6(3) of the Criminal Appeal Act needs to be reiterated. In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284, Spigelman CJ, with whom Latham J expressly concurred and with whom Kirby J, at least implicitly, concurred, discussed the operation of s 6(3) of the Criminal Appeal Act. The Chief Justice said:“[8] The dominant and active verbs in s 6(3) are both in the present tense, ie if the Court of Criminal Appeal ‘is of opinion’ and ‘some other sentence … is warranted in law’. The employment of the past tense in the phrase ‘should have been passed’ is distinctly subsidiary. It is employed in order to reflect the fact that, when the Court of Criminal Appeal intervenes, it does so with effect from the date of the original sentence.[9] This interpretation is consistent with the reference in s 6(3) to s 5(1). That section permits an appeal ‘against the sentence passed on the person’s conviction’. The appeal is from the sentence that has been passed by the sentencing judge. However, the reference in s 6(3) should not be understood as saying ‘should have been passed by the sentencing judge’. It should be understood as an institutional reference, ie ‘should have been passed by the Court’.[10] When the Court of Criminal Appeal turns its mind to forming the opinion which s 6(3) requires, it must do so by reference to the facts as they exist at that time, insofar as the Court permits evidence of those facts to be placed before the Court.” I, respectfully, agree with the conclusion of Spigelman CJ. The pluperfect subjunctive phrase “should have been determined” denotes an act completed prior to the point in the past to which reference is given or implicit. The subjunctive mood denotes the hypothetical nature of the action. The use of the present tense in the phrases “is of opinion” and “is warranted” renders the pluperfect subjunctive phrase subsidiary, as Spigelman CJ noted. It is this Court’s current opinion as to whether a lesser sentence is warranted that is operative and required. That opinion must be based on the evidence before the Court at the time the opinion is formed. The use of the word “is” in each operative phrase emphasises that approach, particularly because the word “if” ordinarily occasions the use of the subjunctive mood. The legislature’s deliberate use of “is”, instead of the subjunctive “were”, or somewhat awkwardly “be”, emphasises that present tense, non-hypothetical aspect.