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Court of Criminal Appeal 14 June 2002

Regina v GOH

[2002] NSWCCA 234

Assault & violence
CRIMINAL LAW CROWN APPEAL AFFRAY DISCRETION TO DISMISS

Citation: Regina v GOH [2002] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 14 June 2002
Judge(s): Spigelman CJ, Adams J, Blanch AJ

Background

The respondent pleaded guilty in the District Court to one count of affray under the Crimes Act, an offence carrying a maximum penalty of five years' imprisonment. The incident occurred in the early hours of 28 October 2000 in a Sydney city laneway, involving a confrontation between two groups that escalated into a brawl involving bottles, kicks, and punches. The respondent suffered serious injuries during the incident, including a fractured arm and a laceration to the head requiring stitches.

District Court Judge Finnane dismissed the charge under section 10 of the Crimes (Sentencing Procedure) Act 1999, meaning no conviction was recorded against the respondent. Section 10 allows a court, after finding a person guilty, to discharge them without recording a conviction, having regard to factors including the person's character, the trivial nature of the offence, and any extenuating circumstances.

The Crown, represented by the Director of Public Prosecutions, appealed under section 5D of the Criminal Appeal Act 1912, arguing that the sentencing judge erred in his findings of fact and that the resulting order was manifestly inadequate for an affray offence, particularly given the lack of any punitive, deterrent, or conviction element.

  • Whether the sentencing judge erred in his findings of fact, particularly in accepting the respondent's evidence over the tendered statement of facts.
  • Whether the exercise of the discretion not to record a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 was available and properly exercised for an indictable offence such as affray.
  • Whether the resulting order was manifestly inadequate, such that the Court of Criminal Appeal should intervene and substitute a more substantial sentence.

Decision

Blanch AJ, with whom Spigelman CJ and Adams J agreed, held that the sentencing judge was entitled to make the factual findings he did. At the sentence hearing, the respondent gave evidence that contradicted the prosecution's statement of facts in material respects, including denying that he armed himself with a bottle or walked to the lane with the intention of fighting. The sentencing judge, having observed the respondent give evidence and having viewed video footage of the incident, accepted the respondent's account. The Court of Criminal Appeal saw no basis to disturb those findings.

On the basis of those facts, the sentencing judge characterised the respondent's involvement as peripheral, noting that he appeared to have acted in something approaching self-defence in striking the complainant, and that he was as much a victim as a perpetrator. The court observed that the judge had, in substance if not in express terms, considered the relevant factors under section 10(3): the respondent's youth and antecedents, the low level of his personal criminality, and the extenuating circumstances of the offence.

The Court of Criminal Appeal acknowledged that exercising a section 10 discretion for an indictable offence is uncommon, and that the location had a documented history of violence raising legitimate general deterrence concerns. Nevertheless, the Court was not persuaded that the orders were manifestly inadequate given the specific factual findings made by the sentencing judge. The Crown's appeal was dismissed.

Orders Made

  • The Crown's appeal is dismissed.

Key Takeaways

  • A Crown appeal can challenge the failure to record a conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999, on the basis that the resulting order is manifestly inadequate, as confirmed by the Court of Criminal Appeal in both R v Paris and R v Lord.
  • In dismissing this appeal, the Court confirmed that a sentencing judge is entitled to make findings of fact based on evidence given at the sentence hearing, including where that evidence contradicts a tendered statement of facts, provided the judge has properly evaluated credibility and the available material.
  • Section 10(3) requires a sentencing court to consider the offender's character, the trivial nature of the offence, extenuating circumstances, and any other relevant matters before exercising the discretion to dismiss without conviction.
  • No error was established in the District Court's reasoning, even though the section 10 discretion was exercised for an indictable offence, where the individual's role was found to be peripheral and the factual circumstances were properly assessed as falling at the lowest end of the scale.
  • General deterrence concerns do not automatically preclude a section 10 order; the weight given to such concerns depends on the particular factual findings made about the individual offender's conduct and culpability.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10, s 10(3)
- Crimes Act 1900 (NSW), s 93C (affray)

Cases:
- R v Paris [2001] NSWCCA 83
- R v Lord [2001] NSWCCA 533