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10
Court of Criminal Appeal 26 May 2004

R v Fajka

[2004] NSWCCA 166

Assault & violence
CRIMINAL PRACTICE AND PROCEDURE SENTENCING FOR AFFRAY OFFENDER BREACH OF DE SIMONI PRINCIPLE FINDINGS UNSUPPORTED BY EVIDENCE SENTENCE MANIFESTLY EXCESSIVE.

Citation: R v Fajka [2004] NSWCCA 166
Court: New South Wales Court of Criminal Appeal
Date: 26 May 2004
Judge(s): Hulme J, Simpson J, Howie J (Howie J delivering the principal judgment)

Background

The applicant pleaded guilty to affray under s 93C of the Crimes Act 1900, arising from a brawl at a licensed venue in Bradbury on 15 January 2002. Members of the public, including families with young children, were present when the applicant, his two brothers, and others became involved in a series of fights with patrons and hotel staff. The Crown accepted that the applicant's brother, Attila, was the principal aggressor in the group.

The applicant's own role was described as participating in brawls in close proximity to his brother, striking one patron, and becoming involved in a scuffle. He did not take the security tape from a hotel employee, and he was not charged with any offence related to that incident. His brother faced separate charges including assault occasioning actual bodily harm and demanding the tape with menaces.

At sentencing in the District Court, Judge Maguire imposed a term of two years' imprisonment with a non-parole period of 18 months. The applicant sought leave to appeal, arguing that the sentence was affected by multiple errors and was manifestly excessive.

  • Whether the sentencing judge improperly attributed to the applicant the more serious conduct of his co-offender, in breach of the principle in De Simoni v The Queen (1981) 147 CLR 383
  • Whether certain factual findings made at sentence were supported by the evidence
  • Whether the sentencing judge adequately took into account the applicant's guilty plea
  • Whether the resulting sentence of two years' imprisonment was manifestly excessive

Decision

The Court of Criminal Appeal identified several distinct errors in the approach taken by the sentencing judge. The judge had treated the brother's conduct, including the taking of the security tape and threats to hotel staff, as directly relevant to the applicant's sentence. This breached the De Simoni principle, which prohibits a sentencing court from taking into account conduct that would constitute a more serious offence than that to which the offender has pleaded guilty. The applicant had pleaded guilty to affray only, and could not lawfully be sentenced on the basis that he was complicit in his brother's separate alleged offences.

The Court also found that several factual findings were unsupported by the evidence before the judge. In particular, the judge appeared to attribute to the applicant knowledge of, and participation in, conduct that the evidence did not establish he was involved in. The Crown's own case materials described the applicant's role as comparatively limited.

Additionally, the Court found the sentencing judge had failed to properly account for the applicant's guilty plea, which is a significant mitigating factor. The applicant also had genuine prospects of rehabilitation: he had completed a residential drug and alcohol programme, maintained sobriety, was employed, and had a supportive family. These subjective matters warranted meaningful weight at sentence.

Taking these errors together, the Court held the sentence was manifestly excessive. By the time of the appeal, the applicant had served approximately seven weeks in full-time custody, his business had collapsed as a result, and he had since secured stable employment with a bank. The Court noted that his rehabilitation was, in its view, complete, and that the person being re-sentenced bore different characteristics from the person who had committed the offence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Judge Maguire quashed
  • In lieu, the applicant ordered to perform 100 hours of community service

Key Takeaways

  • The De Simoni principle prohibits a sentencing court from penalising an offender on the basis of conduct that would constitute a more serious offence than that to which they pleaded guilty, even where co-offenders are alleged to have engaged in that conduct.
  • Where affray involves multiple participants, a sentencing judge is required to distinguish between the roles of different offenders rather than treating all participants as equally culpable for the worst conduct in the group.
  • Factual findings made at sentence must be grounded in evidence actually before the court; findings unsupported by that evidence constitute appellable error.
  • A guilty plea must be given genuine weight as a mitigating factor; failure to do so is an error of principle that can warrant intervention on appeal.
  • The Court of Criminal Appeal confirmed that the sentence imposed in this case did not provide a general guide for affray sentencing in comparable circumstances, given the combination of the applicant's limited role, time already served, and advanced rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93C, 317(a)

Cases:
- De Simoni v The Queen (1981) 147 CLR 383
- Brown v Dunne (1893) 6 R 67