Laurie v The Queen - [2015] NSWCCA 77

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Laurie v R
Medium Neutral Citation:	[2015] NSWCCA 77
Hearing Date(s):	24 April 2015
Decision Date:	1 May 2015
Before:	Hoeben CJ at CL at [1] Hall J at [45] Wilson J at [46]
Decision:	An extension of time for the application for leave to appeal against sentence is granted. Leave is granted to appeal against sentence and the appeal is allowed. The sentence imposed by Mathews AJ on 16 December 2005 is quashed and in lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 14 years, and a balance of term of 6 years. The non-parole period is to commence on 7 June 2003 and expire on 6 June 2017, with the balance of term to expire on 6 June 2023.
Catchwords:	CRIMINAL LAW – sentence appeal – need for an extension of time – “Muldrock error” conceded by Crown – offence of murder – applicant mentally retarded – unable to explain why he committed the offence – re-exercise of sentencing discretion pursuant to s 6(3) of the Criminal Appeal Act 1912 – tension between need to protect public and inapplicability of principles such as general deterrence – appeal allowed and sentence reduced.
Legislation Cited:	Crimes Act 1900 – s23A Crimes (Sentencing Procedure) Act 1999 – s21A Criminal Appeal Act 1912 – s6(3)
Cases Cited:	Regina v David Hugh Laurie [2005] NSWSC 1361
Category:	Principal judgment
Parties:	David Hugh Laurie – Applicant Regina – Respondent Crown
Representation:	Counsel: C Bruce SC/Mr S Eccleshall – Applicant N Adams SC/Ms S Palaniappan – Respondent Crown Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2004/4411
Decision under appeal:
Court or Tribunal:	Supreme Court of NSW
Jurisdiction:	Criminal
Citation:	Regina v David Hugh Laurie [2005] NSWSC 1361
Date of Decision:	16 December 2005
Before:	Mathews AJ
File Number(s):	2004/4411

JUDGMENT

HOEBEN CJ at CL:
OFFENCE AND SENTENCE
On 25 October 2003 the applicant was convicted by a jury of the murder of Jeffrey Swann (the deceased). The offence carries a maximum penalty of life imprisonment with a standard non-parole period of 20 years.
On 16 December 2005 Mathews AJ sentenced the applicant to imprisonment with a non-parole period of 15 years and a balance of term of 9 years. The non-parole period was to commence on 7 June 2003 and expire on 6 June 2018, with the balance of term to expire on 6 June 2027.
The applicant seeks leave to appeal against that sentence out of time. He relies upon the following grounds of appeal:
Ground 1 – Her Honour erred “by treating the provision of the standard non-parole period as having determinative significance in sentencing” the applicant.
Ground 2 – Her Honour gave insufficient weight to the applicant’s intellectual and mental disabilities when sentencing the applicant.
Ground 3 – The sentence imposed was manifestly excessive.
FACTUAL BACKGROUND
In June 2003 both the applicant and the deceased were residents of…

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.

Continue reading Laurie v The Queen

Details

AGLC: Laurie v The Queen [2015] NSWCCA 77
Case: [2015] NSWCCA 77
Decision Date: 1 May 2015

CaseChat Overview and Summary

The case of Laurie v The Queen involved an appeal against a sentence imposed by a lower court. The appellant, Laurie, was convicted of murder and argued that his sentence was manifestly excessive. Laurie, who has a mental disability, claimed that the original sentencer did not adequately consider his intellectual and mental condition in determining his punishment. The central issue before the court was whether the primary judge had sufficiently taken into account Laurie's intellectual and mental disability in assessing his culpability and in determining an appropriate sentence. The court also needed to weigh the competing considerations of protecting the public against the principles of general deterrence and denunciation, which had little relevance in this case.

The court examined whether the primary judge had erred in failing to sufficiently consider Laurie's intellectual and mental disability. The court found that the primary judge had indeed considered the evidence and applied the legal principles correctly. However, the task of the appellate court was not merely to review the reasons of the primary judge but to re-exercise its own sentencing discretion to determine if a lesser sentence was warranted. Given the overwhelming evidence of Laurie's disability and his high risk of serious reoffending, the court had to balance the need to protect society with the diminished moral culpability due to his condition. The court concluded that the original sentence overemphasized the need for protection of society without adequately considering Laurie's lack of understanding and control over his actions.

The court allowed the appeal and reduced the sentence. It determined that the original sentence did not appropriately balance the need to protect the public with Laurie's significantly diminished moral culpability. The court emphasised that while the principles of general deterrence and denunciation had little relevance in this case, the risk Laurie posed to society could not be ignored. The sentence needed to reflect a fair assessment of his culpability and the appropriate level of punishment. In light of these considerations, the court decided that a lesser sentence was warranted, reflecting both the need for public protection and an appropriate assessment of Laurie's moral culpability.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The applicant’s submission that the sentence was manifestly excessive is based on the same considerations.CONSIDERATION A submission to the effect that a sentencing judge has given “insufficient weight” to a factor or principle has within it an acceptance that the judge has in fact considered the factor or principle. Once that is accepted, the task of establishing that insufficient weight has been given in that consideration confronts considerable difficulty. As the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) said in Markarian v R [2005] HCA 25; 228 CLR 357 at [27]:“27 … The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. …” I am not persuaded that the primary judge gave insufficient weight to the applicant’s intellectual and mental disability. Her Honour carefully recorded the evidence and her application of legal principle was accurate and appropriate. That, however, does not end the matter. As Kentwell v The Queen made clear, the exercise to be carried out by this Court does not involve an analysis of the reasons of the primary judge. Once error has been identified, this Court is required to re-exercise for itself the sentence discretion and to determine whether a lesser sentence is warranted in law. The evidence that the applicant has an intellectual disability and suffers from some degree of mental illness is overwhelming. As her Honour appreciated and as has been submitted by the applicant, the principles of general deterrence and denunciation have little weight. The difficulty in sentencing is that the applicant comes within that category of individuals who pose such a high risk of serious offending, apparently without the understanding or the ability to control their own behaviour, that the demands of protection of society must be given considerable weight. There is a real tension between that consideration and the need for the sentence to conform to an appropriate assessment of the moral culpability of the offender. Some assistance on that issue is provided in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at [13] where the plurality (Mason CJ, Brennan, Dawson and Toohey JJ) said:“13 … The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality. ...”