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Court of Criminal Appeal 8 December 2003

Regina v RK

[2003] NSWCCA 389

Assault & violenceFirearms & weapons
APPLICANT IN DANGER REDUCTION OF NON PAROLE PERIOD.

Citation: Regina v RK [2003] NSWCCA 389
Court: NSW Court of Criminal Appeal
Date: 8 December 2003
Judge(s): Hidden J; Smart AJ

Background

The applicant had been sentenced in the District Court on two charges: using a firearm without a permit (under the Firearms Act 1996) and malicious wounding (under the Crimes Act 1900). The offences arose from an incident in which he fired three shots at a victim near Milson's Point, striking the victim three times in the leg and causing serious injury requiring hospitalisation.

The District Court judge imposed an effective total sentence of three years, with a non-parole period of two years and three months. The sentencing judge had already applied a sixty percent discount to reflect the applicant's guilty pleas and what she described as "extraordinarily valuable" assistance to authorities.

The applicant sought leave to appeal, arguing that insufficient weight had been given to his ongoing danger as an informant, including assaults he had suffered while in custody and continuing threats against his family.

  • Whether the non-parole period set by the District Court adequately reflected the applicant's assistance to authorities and his resulting danger while in custody
  • Whether fresh evidence of a further assault in custody and continued threats to the applicant's family warranted a modest reduction in the non-parole period

Decision

The Court of Criminal Appeal accepted the sentencing judge's starting point and her application of the sixty percent discount as appropriate. Hidden J noted that a global starting point of approximately seven and a half years, while high, was not so manifestly excessive as to warrant intervention by the appellate court, given the seriousness of both offences.

The Court's concern centred on the non-parole period. Before the sentencing court, evidence had already been placed before the judge of the applicant having been seriously assaulted in custody and facing ongoing danger. On appeal, a further affidavit disclosed an additional assault in custody of which the sentencing judge had been unaware, and confirmed in what Hidden J described as "fairly dramatic terms" the threats continuing against the applicant's family.

Hidden J found that this additional material, which amplified and cast further light on what had already been before the sentencing judge, justified a modest adjustment to the non-parole period. The Court reduced the non-parole period from fifteen months to fourteen months, with the practical effect of permitting the applicant's release on parole at the end of that week. Smart AJ agreed.

Orders Made

  • The sentence on the first count (firearms offence) was confirmed
  • The head sentence on the second count (malicious wounding) of two years was confirmed
  • The non-parole period on the second count was reduced from fifteen months to fourteen months, expiring 12 December 2003
  • Release on parole was directed at the expiration of that non-parole period

Key Takeaways

  • A sixty percent sentencing discount was upheld as justified where a defendant's assistance to authorities had been assessed as "extraordinarily valuable," combined with guilty pleas and remorse.
  • Fresh evidence on appeal of an additional assault in custody, and evidence of ongoing threats to an informant's family, provided sufficient basis for the Court of Criminal Appeal to intervene and reduce a non-parole period, even where the overall sentence and head sentence were left undisturbed.
  • Upholding the effective sentence while adjusting only the non-parole period, the Court distinguished between the appropriateness of the total punishment and the question of how long an applicant must serve before becoming eligible for parole.
  • The applicant's impending entry into a Witness Protection Program upon release was a circumstance the court treated as relevant to the overall assessment of danger and appropriate leniency.
  • Where a sentencing court has found special circumstances to adjust the proportion between head sentence and non-parole period, an appellate court may make a further modest adjustment on the basis of additional evidence going to the offender's safety, without necessarily disturbing the remainder of the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35 (malicious wounding, maximum 7 years)
- Firearms Act 1996 (NSW), s 7(1) (using a firearm without a permit, maximum 14 years)

Cases cited: No cases were cited in the judgment.