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Court of Criminal Appeal 5 February 2004

REGINA v EUSTICE

[2004] NSWCCA 14

Assault & violence
CRIMINAL LAW SENTENCING ASSAULT OCCASIONING ACTUAL BODILY HARM NO QUESTION OF PRINCIPLE

Citation: Regina v Eustice [2004] NSWCCA 14
Court: New South Wales Court of Criminal Appeal
Date: 5 February 2004
Judge(s): Giles JA; Hulme J; Adams J

Background

The Crown appealed the sentence imposed by Solomon DCJ in the District Court on a then-18-year-old respondent who pleaded guilty to aggravated assault occasioning actual bodily harm (assault in company) and common assault. The offences arose from a group attack on two teenagers in Mosman at 1.30am on 3 March 2002. The respondent participated in the beating of one victim, causing multiple facial and body injuries requiring hospital treatment, and also threw a second victim to the ground.

The District Court sentenced the respondent to 100 hours of community service. The Crown submitted that sentence was manifestly inadequate and that the sentencing judge had made several identifiable errors in reaching it.

A co-offender, Daly, had earlier received 100 hours of community service in the Local Court after pleading guilty at an early stage and agreeing to give evidence against the respondent. The sentencing judge gave weight to Daly's sentence as a parity consideration without adequately accounting for those distinctions.

  • Whether the District Court sentence of 100 hours community service was manifestly inadequate for assault occasioning actual bodily harm (in company) and common assault.
  • Whether the sentencing judge erred in treating the respondent as having no prior record, when he had recently been placed on a good behaviour bond for a similar offence of violence.
  • Whether the sentencing judge erred in drawing an inference of contrition from the plea of guilty, where the plea followed plea negotiations and was entered only days before the scheduled trial.
  • Whether the parity principle required close alignment with the co-offender's sentence, given material differences in the co-offender's culpability and cooperation with authorities.

Decision

The Court of Criminal Appeal allowed the appeal and quashed the District Court sentence, identifying three distinct errors in the sentencing judge's reasoning.

First, the sentencing judge failed to give adequate weight to the respondent's prior conduct. Although the respondent had no formal conviction, he had been placed on a six-month good behaviour bond just weeks before the assault for a comparable offence of violence. The sentencing judge described him as having no record, which the Court found was misleading and resulted in an understatement of the respondent's culpability.

Second, the sentencing judge improperly inferred contrition from the guilty plea. The Court applied the principle from Holloway v McFeeters that such an inference is only available where it is the most probable deduction from the facts. Here, the plea came after negotiations that reduced four charges to two, making it equally consistent with the respondent making the best of his position rather than expressing genuine remorse. The Court accepted that other evidence of contrition existed in the pre-sentence report, but found the route by which the judge reached that conclusion was erroneous.

Third, and most significantly, the sentence was manifestly inadequate when assessed against the seriousness of the offending, particularly the fact that it was committed while the respondent was subject to a bond. The Court noted that a custodial sentence would have been justified on the facts. However, consistent with the Court's practice on Crown appeals, it imposed the minimum sentence that could properly have been imposed at first instance rather than the sentence it might have chosen afresh.

Orders Made

  • Appeal allowed; sentences imposed in the District Court quashed.
  • On the count of assault occasioning actual bodily harm: 150 hours community service, commencing 3 February 2004.
  • On the count of common assault: 100 hours community service, commencing 3 February 2004, cumulative upon the preceding 150 hours.
  • Total community service: 250 hours.

Key Takeaways

  • A plea of guilty entered late and following charge negotiations does not, of itself, support an inference of contrition; a court must be satisfied that contrition is the most probable inference from all the circumstances (applying Holloway v McFeeters (1956) 94 CLR 470).
  • Describing an offender as having "no record" may constitute error where a recent bond for a similar offence exists, even if that bond was imposed without recording a conviction.
  • The parity principle (from R v Lowe and Postiglone v The Queen) requires careful attention to material differences between co-offenders, including early pleas and cooperation with the prosecution, before treating a co-offender's sentence as a meaningful benchmark.
  • On a Crown appeal, the Court of Criminal Appeal applies the practice of imposing the minimum sentence that could properly have been given at first instance, not the sentence the appellate court would independently select.
  • An offence committed while the offender was subject to a good behaviour bond is a significant aggravating factor that sentencing courts must expressly address.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(1) and 59(2)

Cases
- Holloway v McFeeters (1956) 94 CLR 470
- Postiglone v The Queen (1997) 189 CLR 295
- R v Lowe (1984) 154 CLR 606
- R v Pearce (1998) 194 CLR 610