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Court of Criminal Appeal 20 May 2003

R v Eleter and Anor

[2003] NSWCCA 130

Assault & violencePublic order & justice offences
CRIMINAL LAW: APPEAL AGAINST SENTENCE AFFRAY AGREED FACTS YOUNG OFFENDERS WHETHER SENTENCE EXCESSIVE

Citation: R v Eleter and Anor [2003] NSWCCA 130
Court: New South Wales Court of Criminal Appeal
Date: 20 May 2003
Judges: Simpson J, Hidden J, Bell J

Background

Two brothers, Tony and George Eleter, pleaded guilty in the Supreme Court to affray under s 93C of the Crimes Act 1900, arising from a violent incident at a Bankstown premises on 3 November 2000. The offence stemmed from a street fight earlier that day involving Tony Eleter, after which multiple family members travelled together to confront the other man involved. During that confrontation, another brother, Michael Eleter, fired ten shots into the premises, fatally striking a bystander. Michael pleaded guilty to murder; the appellants pleaded guilty only to affray.

The sentencing judge, Dunford J, sentenced each appellant to sixteen months imprisonment with a non-parole period of twelve months, allowing a twenty percent discount for their guilty pleas. No special circumstances were found to justify altering the standard ratio between the non-parole period and the total sentence.

Both appellants sought leave to appeal, contending the sentences were excessive and that the sentencing judge had erred in several respects.

  • Whether the sentencing judge was influenced by matters outside the agreed statement of facts, in particular by information about a co-offender's sentence
  • Whether the sentences failed to give adequate weight to the appellants' relative youth (aged nineteen at the time of the offence)
  • Whether the sentences were manifestly excessive having regard to comparable cases and Judicial Commission statistics
  • Whether the sentences failed to distinguish appropriately between the appellants' culpability and that of their father, who received the same sentence
  • Whether special circumstances existed that should have reduced the non-parole period relative to the head sentence

Decision

The Court first considered whether the sentencing judge had impermissibly taken into account matters not in evidence, specifically a reference to a co-offender's sentence. The Court found that while the judge's remarks touched on extraneous information, this did not affect the outcome. The sentences imposed were independently justified on the agreed facts, and no substantial miscarriage of justice resulted.

On the question of youth, the Court upheld Dunford J's reasoning that the appellants, at nineteen, were of an age where general and specific deterrence remained highly relevant. The court noted the seriousness of the offence: it was not entirely spontaneous, involved a group acting in concert, and resulted in a death. The family's attitude, as disclosed in pre-sentence reports, showed limited remorse beyond regret that someone had been killed.

Regarding the sentences' position within the broader range, the Court examined Judicial Commission statistics and comparable authorities. Sixteen-month sentences were toward the upper end of the recorded range for affray offences, but the Court concluded that the serious features of this particular affray placed the sentences within the legitimate exercise of the sentencing judge's discretion. They were described as severe, but not manifestly excessive.

The Court also rejected the special circumstances ground. No error was identified in the sentencing judge's approach to the non-parole period, and no distinct basis for a finding of special circumstances was made out on the facts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentences toward the upper end of the statistical range for affray are not automatically manifestly excessive where the specific offence displays serious aggravating features, including lack of spontaneity and group participation.
  • A sentencing judge's reference to material outside the agreed facts does not necessarily vitiate a sentence if the sentences imposed were independently warranted and no substantial miscarriage of justice occurred.
  • Where an offender's attitude, as disclosed in pre-sentence reports, reflects a belief that the conduct was justified rather than genuine contrition, that attitude is a legitimate sentencing consideration.
  • Affirming earlier Court of Criminal Appeal authority, this decision distinguishes between affrays that are substantially premeditated and those that break out spontaneously, with the former attracting greater culpability.
  • At nineteen years of age, offenders are not automatically entitled to a reduction in the weight given to general and specific deterrence; the sentencing court retains discretion to assess youth in light of the nature and seriousness of the particular offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93C (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10

Cases:
- R v AEM Snr & Ors [2002] NSWCCA 58
- R v Goh [2002] NSWCCA 234
- R v Huynh & Ors [2000] NSWCCA 18
- R v Simpson (2001) 53 NSWLR 704
- The Queen v De Simoni (1981) 147 CLR 383