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Court of Criminal Appeal 18 August 1999

R v King

[1999] NSWCCA 251

Assault & violence

Citation: R v King [1999] NSWCCA 251
Court: NSW Court of Criminal Appeal
Date: 18 August 1999
Judge(s): Wood CJ at CL; Greg James J

Background

The appellant was sentenced in the District Court on 24 June 1998 following convictions for two separate offences of violence arising from a prolonged factional conflict in Sydney's Coogee Bay area. The first offence was a malicious wounding that occurred during a large street brawl on New Year's Eve 1994, in which the appellant struck a man with a bottle during a riot involving more than 100 people. The sentencing judge accepted that the appellant acted largely on impulse, was significantly affected by alcohol, and believed his group was outnumbered.

The second offence arose approximately 16 months later, when the victim's associates arrived at premises carrying barbecue equipment as makeshift weapons. During the confrontation, the appellant threw a house brick at a departing van and struck a bystander, causing serious head injuries requiring major surgery and leaving the victim with lasting disabilities. By the time of sentencing, the appellant had already served approximately 486 days in pre-sentence custody across broken periods.

Mahoney DCJ imposed a total sentence comprising a minimum term of three years and an additional term of six months, structured as two cumulative components of 18 months each (minimum) with concurrent additional terms. The appellant did not challenge the total sentence but sought leave to appeal on the ground that the sentencing judge erred in declining to find special circumstances, which would have altered the ratio of minimum to additional term and allowed for a longer supervision period upon release.

  • Whether the sentencing judge erred in finding no special circumstances under the sentencing framework, which permits the court to depart from the standard ratio between minimum and additional terms
  • Whether the imposition of cumulative sentences, combined with additional pre-sentence custody and identified rehabilitation needs, gave rise to special circumstances in this case

Decision

The Court of Criminal Appeal accepted that the overall sentence length was appropriate and warranted no interference. The Court affirmed that street brawls and gang fighting attract significant custodial sentences on grounds of both general and personal deterrence. The appellant's prior record, which included offences of violence and assaulting police, and the fact that the second offence was committed while he was on parole and subject to a recognisance, were all properly treated as aggravating factors.

However, the Court was persuaded that the sentencing judge erred in refusing to find special circumstances. The Court noted that the imposition of cumulative sentences is ordinarily a factor that, of itself, supports a finding of special circumstances. That principle had been confirmed in several prior authorities. The effect of the cumulative structure was further amplified here because the appellant had served an additional nine months in custody before sentencing, which effectively extended the period of accumulation beyond what it would otherwise have been.

The Court also pointed to the sentencing judge's own findings and the psychological evaluation in the pre-sentence report, which identified significant psychological problems and recommended ongoing professional supervision focused on anger management, conflict resolution, and relationship issues. The Court observed that these findings were in practical tension with the refusal to find special circumstances, since they identified this as precisely the kind of case where post-release supervision was both warranted and important.

Orders Made

  • Leave to appeal granted
  • Original sentence quashed
  • For the first offence: fixed term of 12 months, from 10 November 1997 to 9 November 1998
  • For the second offence: cumulative minimum term of 15 months, from 10 November 1998 to 9 February 2000, followed by an additional term of 15 months from 10 February 2000
  • The effect of these orders, accounting for prior custody, was a minimum period of approximately three years' imprisonment, with eligibility for parole subject to supervision for an additional 15 months

Key Takeaways

  • The Court of Criminal Appeal confirmed that the imposition of cumulative sentences will ordinarily constitute a special circumstance justifying a departure from the standard minimum-to-additional-term ratio.
  • Where pre-sentence custody effectively increases the period of accumulation beyond its nominal length, this reinforces the case for finding special circumstances.
  • A sentencing judge's own acknowledgment that an offender requires supervision upon release, supported by a psychological assessment, is a significant consideration that strongly favours a finding of special circumstances.
  • Internal inconsistency in a sentencing judgment, such as finding that supervision is needed while simultaneously declining to find special circumstances, may itself ground a successful appeal.
  • Under the principle of totality, restructuring the minimum and additional terms does not require any alteration to the overall sentence length; the Court here left the total term intact while redistributing it to allow for an extended period of supervised parole.

Legislation and Cases Referenced

Cases cited:
- Henderson (NSW CCA, 5 November 1997)
- Tran (1999) NSW CCA 109
- Davidis (NSW CCA, 18 December 1986)
- Vranic (NSW CCA, 7 May 1996)
- Moffitt (1990) 20 NSWLR 114
- Simpson (1992) 61 A Crim R 59
- Close (1992) 65 A Crim R 55
- Pollock (1993) 67 A Crim R 166

Legislation: No specific legislation was cited in the text provided.