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Court of Criminal Appeal 22 November 2000

Regina v Page (aka Karipis)

[2000] NSWCCA 484

Assault & violenceDrugs
SENTENCING SEVERITY APPEAL

Citation: Regina v Page (aka Karipis) [2000] NSWCCA 484
Court: New South Wales Court of Criminal Appeal
Date: 22 November 2000
Judge(s): Barr J, Carruthers AJ

Background

The applicant was convicted in the Sydney District Court on two counts: maliciously inflicting grievous bodily harm under s 35(b) of the Crimes Act 1900, and supplying a prohibited drug (heroin) under s 25(1) of the Drug Misuse and Trafficking Act 1985. Both offences arose from events in January 1991, when the applicant orchestrated a severe assault on a man who had become involved in a drug dispute with him, and in connection with drug supply operations the applicant ran from premises in Kings Cross.

Freeman DCJ sentenced the applicant to concurrent terms of two years and six months minimum, plus an additional term of two years and six months, on each count. These sentences were made cumulative upon an existing sentence the applicant was already serving for a later drug supply offence, with the new sentences commencing upon the expiry of the minimum term of that earlier sentence.

The applicant appeared unrepresented before the Court of Criminal Appeal and pressed several grounds of appeal. He explicitly stated at the outset that he did not seek a reduction in the overall sentence, but argued the structure and accumulation of the sentences was erroneous.

  • Whether Freeman DCJ erred in making the subject sentences cumulative upon the sentence the applicant was already serving at the time of sentencing.
  • Whether the sentencing judge improperly took into account factors relevant only to the more serious charge of malicious infliction of grievous bodily harm with intent (s 33), rather than confining himself to factors relevant to the lesser charge to which the applicant pleaded guilty (s 35(b)).
  • Whether the sentencing judge erred in his treatment of remorse, contrition, and rehabilitation prospects by considering the applicant's subsequent offences.
  • Whether it was improper to accumulate the subject sentences upon sentences that were, at the time, under appeal.
  • Whether insufficient weight was given to the applicant's declining health and other subjective circumstances.

Decision

Carruthers AJ, with Barr J agreeing, dismissed each ground of appeal. The court found that the objective seriousness of both offences was very high, describing the malicious infliction of grievous bodily harm as representing a degree of wickedness that was "almost breathtaking." Balancing that objective gravity against the subjective circumstances properly placed before the sentencing judge, the court concluded the sentences were well within the available range.

On the central ground of accumulation, the court found no error. The sentences were imposed cumulatively upon the existing sentence, commencing from the expiry of its minimum term, and the court considered this entirely appropriate given the circumstances. The court also found no substance in the argument that accumulation was improper because the earlier sentences were under appeal at the relevant time.

Regarding the treatment of intention, the court accepted that the judge should not have strayed into considerations relevant only to the more serious charge under s 33. However, the court was not satisfied that anything the judge said or did in this respect actually inflated the sentences imposed for the subject offences. No appellable error was established on that basis.

On remorse and rehabilitation, the court acknowledged the argument that subsequent offences should not have featured in that assessment, but concluded that even if there were some error in the judge's approach, it played no role of sufficient weight to disturb the sentences. The unresolved question of whether a period of pre-sentence custody in 1995 to 1996 related to the subject offences or to later matters was noted but found to be immaterial to the overall outcome.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the objective seriousness of the underlying offences can be decisive in defeating a severity appeal, even where some arguable procedural imperfections exist in the sentencing process.
  • No error was established in accumulating sentences upon a pre-existing sentence, with the new sentences commencing from the expiry of the minimum term of the sentence being served at the date of sentencing.
  • The fact that earlier sentences were under appeal at the time of accumulation did not, in the court's view, render that accumulation improper.
  • Where a sentencing judge may have considered factors relevant to a more serious charge than the one to which the offender pleaded guilty, that does not automatically warrant appellate intervention; the court must be satisfied the sentences were actually inflated as a result.
  • Subjective circumstances, including serious health concerns, will not necessarily bring sentences within the range of error where the objective gravity of the offences is sufficiently high.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 and s 35(b)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- R v Gower (1991) 56 A Crim R 115
- The Queen v De Simoni (1981) 147 CLR 383