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Court of Criminal Appeal 23 February 2000

R v Aporo

[2000] NSWCCA 48

Assault & violencePublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE THREATEN WITNESS PATTERN OF SENTENCE

Citation: R v Aporo [2000] NSWCCA 48
Court: NSW Court of Criminal Appeal
Date: 23 February 2000
Judge(s): Grove J, Greg James J

Background

The appellant pleaded guilty in the District Court to two counts of assault, one count of assaulting a police officer in execution of his duty, and one count of threatening a witness under the Crimes Act. The offences arose from a violent incident at a Manly nightclub in the early hours of 13 October 1998, during which the appellant made threatening gestures and statements to a security guard, warning him not to report or charge the appellant.

The sentencing judge imposed fixed terms for the three assault-related offences, all of which had expired by the time of the appeal. On the witness-threatening count, her Honour imposed a total sentence of four years' penal servitude, divided into a minimum term of two years and six months and an additional term of eighteen months, finding that special circumstances justified that departure from the standard ratio. The overall sentence was expressed as an encompassing term reflecting the totality of the appellant's criminality across all four counts.

The appellant sought leave to appeal on the ground that the sentence on the witness-threatening count was excessive.

  • Whether the total sentence of four years for threatening a witness was manifestly excessive having regard to the facts found and sentencing statistics recorded by the Judicial Commission.
  • Whether the sentencing judge erred in finding special circumstances justifying an extended additional term relative to the minimum term.
  • Whether an error in the parole orders (purporting to order parole rather than merely specifying eligibility, in a sentence exceeding three years) required correction.

Decision

The Court of Criminal Appeal found the sentence of four years manifestly excessive. Grove J noted that Judicial Commission statistics revealed this sentence was the heaviest ever imposed for the offence of threatening a witness, and accepted it was the very sentence under appeal that produced that statistical record. Comparing the facts found by the sentencing judge, including verbal threats and a gesture mimicking a gun, against the appellant's record, the Court accepted the submission that this did not represent either the worst case or the worst offender.

The Court acknowledged that her Honour had not made a finding that the appellant said "If I go to prison I'm going to get someone to kill you," a more serious form of the threat contained in the victim's statement. Because the sentencing judge did not rely on those words, the Court held it was not appropriate to assess the sentence against evidence that was not adopted as a finding of fact.

Grove J also declined to find special circumstances. Given the appellant's extensive history of violence and the absence of any meaningful path toward rehabilitation, the Court found no basis for departing from the standard minimum-to-additional term ratio prescribed by the Sentencing Act. The earlier parole-order error became unnecessary to address further once the Court determined to resentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed on Count 4 (threatening a witness, contrary to s 322(a) of the Crimes Act) was quashed.
  • In substitution, the appellant was sentenced to a total term of two years' imprisonment, comprising a minimum term of one year and six months commencing 13 October 1998 and expiring 12 April 2000, and an additional term of six months commencing 13 April 2000.
  • The appellant was ordered to be released to parole on 12 April 2000, subject to the authority of the Probation and Parole Service.

Key Takeaways

  • Sentencing statistics maintained by the Judicial Commission are a relevant and legitimate reference point when assessing whether a sentence is manifestly excessive; a sentence that stands as the heaviest ever recorded for a particular offence invites close scrutiny.
  • Where a sentencing judge structures an encompassing sentence to reflect total criminality across multiple counts, the appellate court will assess that sentence against the totality of the offending, even where subordinate fixed terms have already expired.
  • A court's power to order parole (as distinct from specifying parole eligibility) is confined to sentences of three years or less; exceeding that threshold without authority constitutes an error in the order.
  • Special circumstances justifying an extended additional term were not established where the offender had a substantial record of violent offending and showed no meaningful evidence of rehabilitation.
  • Facts not adopted by the sentencing judge as findings, even if contained in material before the court, cannot be used on appeal to justify the sentence that was imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 322(a) (threatening a witness)
- Sentencing Act (NSW), s 5(2) (standard division of minimum and additional terms)

Cases cited: None referenced in the judgment text.