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21
Court of Criminal Appeal 14 February 2000

REGINA v KAMA

[2000] NSWCCA 23

Also reported as [2000] 110 A Crim R 47
Assault & violence
CRIMINAL LAW SENTENCING CROWN APPEAL MANIFESTLY INADEQUATE SENTENCE DOUBLE JEOPARDY CRIMINAL APPEAL ACT 1912, S5D

Citation: [2000] NSWCCA 23
Court: Court of Criminal Appeal, New South Wales
Date: 14 February 2000
Judge(s): Spigelman CJ; Hulme J; Smart AJ

Background

The respondent, then aged seventeen years and eight months, pleaded guilty to one count of maliciously inflicting grievous bodily harm under s 35 of the Crimes Act 1900 (NSW). The offending involved a sustained and vicious assault on a victim in a public place, carried out in company, during which the respondent repeatedly stomped and punched the victim's head while the victim lay unconscious on the ground.

The victim suffered severe traumatic brain injury resulting in permanent damage to memory and concentration. He was hospitalised from 23 February 1998 and required inpatient rehabilitation through to April 1998.

At the Sydney District Court, Judge Williams imposed a sentence of 27 months penal servitude comprising a nine-month minimum term served by periodic detention and an eighteen-month additional term. The Crown appealed under s 5D of the Criminal Appeal Act 1912, contending the sentence was manifestly inadequate.

  • Whether the sentence of periodic detention imposed by the District Court was manifestly inadequate given the objective gravity of the offence and the severity of harm caused.
  • Whether the sentencing judge gave undue weight to the respondent's rehabilitation prospects and "emotional immaturity," and insufficient weight to general and specific deterrence.
  • What sentence should be substituted, having regard to the respondent's personal circumstances (youth, lack of criminal record, good character) and the double jeopardy principle applicable on Crown appeals.

Decision

The Court of Criminal Appeal unanimously found the original sentence manifestly inadequate, accepting that a full-time custodial sentence should have been imposed at first instance. However, the majority declined to identify any specific error in the sentencing judge's reasoning. Spigelman CJ noted that the sentencing judge had properly acknowledged the seriousness of the offence, the aggravating circumstance of the assault being committed in company, and the need for both general and specific deterrence, while also lawfully giving weight to the respondent's youth, emotional immaturity, lack of prior convictions, and stable family background.

Hulme J took a firmer view of the inadequacy of the sentence, emphasising the extraordinary violence involved, the sustained nature of the stomping to the head, and the permanent consequences for the victim. His Honour concluded that retribution and deterrence demanded a substantial full-time custodial sentence, and would have imposed a minimum term of eighteen months with an additional term of six months.

Smart AJ agreed the sentence was manifestly inadequate and that a full-time custodial term should have been imposed. However, his Honour noted that the respondent had by the time of the appeal already served approximately six months of periodic detention, had reorganised his employment to accommodate the sentence, and had active family support. Those practical circumstances informed the approach to resentencing.

The Court ultimately followed the orders proposed by Spigelman CJ, substituting a sentence of three years penal servitude comprising a two-year minimum term and a one-year additional term, both to be served by periodic detention. The decision to retain periodic detention rather than convert the sentence to full-time custody reflected the respondent's partial compliance with the original sentence and the disruption that full-time imprisonment would cause at that stage.

Orders Made

  • Crown appeal allowed.
  • Original sentence quashed.
  • Substituted sentence: a minimum term of two years penal servitude by way of periodic detention commencing 20 August 1999 and expiring 19 August 2001, with an additional term of one year by way of periodic detention commencing 20 August 2001 and expiring 19 August 2002.

Key Takeaways

  • A sentence can be manifestly inadequate even where no specific error in the sentencing judge's reasoning can be identified; the final result itself may fall outside the permissible range given the objective gravity of the offence.
  • The Court of Criminal Appeal confirmed that emotional immaturity in a young offender is a legitimate basis for giving greater weight to rehabilitation and lesser weight to general deterrence, but this consideration does not override the need for meaningful punishment in cases involving extreme and sustained violence.
  • Under s 5D of the Criminal Appeal Act 1912, the double jeopardy principle operates on Crown appeals so that the Court will ordinarily impose a sentence at or toward the lower end of the appropriate range, rather than the sentence that should ideally have been imposed at first instance.
  • Partial compliance with an original sentence already underway (here, approximately six months of periodic detention served) is a factor the Court of Criminal Appeal may take into account when determining what sentence to substitute on a successful Crown appeal.
  • Objective factors including the sustained nature of the violence, the use of lethal force against a defenceless victim, commission in company, and the permanent consequences of injury will weigh heavily in sentencing for offences under s 35 of the Crimes Act 1900, even where significant subjective mitigating factors exist.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35 (maliciously inflicting grievous bodily harm; maximum penalty seven years penal servitude)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeals against sentence)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- R v Gordon (1994) 71 A Crim R 459