Citation: Regina v Crowley [2004] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 30 July 2004
Judge(s): Wood CJ at CL, Hidden J, Smart AJ
Background
The Director of Public Prosecutions appealed against sentences imposed by Nicholson DCJ in the District Court on an offender who had pleaded guilty to two counts of assault occasioning actual bodily harm (committed in company) and one count of entering a building with intent. The assaults occurred in the early hours of the morning at Terrigal on 25 April 2003 and involved group attacks on two victims, one of whom was left unconscious in the middle of a road.
The sentencing judge imposed fixed terms and a non-parole period totalling just over twelve months for the two assault charges, and placed the offender on a two-year good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 for the entering charge. The Crown contended those sentences were manifestly inadequate. It also raised concerns about procedural fairness, arguing that the sentencing judge departed from agreed facts without notifying the parties beforehand.
By the time the appeal was heard, the offender had already served most of his sentence and was due for release within a month. He had been moved from the Young Offenders Programme at Oberon to Parramatta Correctional Centre following the lodging of the Crown appeal, resulting in harsher conditions than he would otherwise have experienced.
Legal Issues
- Whether the sentences imposed for the two assault counts were manifestly inadequate
- Whether the sentencing judge erred by departing from the agreed facts without prior notice to the parties, thereby breaching procedural fairness
- Whether the Court of Criminal Appeal should exercise its discretion to dismiss the Crown appeals even if the sentences were found to be inadequate
- Whether the sentence for the entering with intent charge was also manifestly inadequate
Decision
The Court of Criminal Appeal unanimously found that the sentences imposed for the two assault offences were manifestly inadequate. Smart AJ, with whom Wood CJ at CL and Hidden J agreed, concluded that the criminality of the assaults warranted significantly higher sentences, noting that both offences were committed in company, involved serious violence, and resulted in real harm to two unrelated victims. Hidden J specifically acknowledged that the sentences failed to adequately mark the offending, even though rehabilitation had appropriately been a focus of the sentencing exercise.
On the procedural fairness complaint, the Court found that the sentencing judge's departure from the agreed facts without prior notice to the Crown was problematic. The judgment emphasised that counsel on both sides bear responsibility for ensuring agreed facts are carefully checked and that any differences between those facts and other materials in evidence should be resolved transparently before sentence is imposed.
Despite finding the assault sentences manifestly inadequate, all three judges exercised the court's discretion to dismiss the Crown appeals. Smart AJ identified five factors supporting that outcome: the offender had served most of his sentence and was weeks from release; the lodging of the appeal had caused him to be removed from the Young Offenders Programme into harsher conditions; he had performed well in custody; he was a young person with a very disadvantaged background who was now at a turning point; and the time already served had delivered the necessary custodial impact. Smart AJ noted that his mind had fluctuated on the correct result, but ultimately concluded that intervention was not warranted.
The s 9 bond imposed for the entering with intent charge was described as lenient and falling just short of manifestly inadequate, but the Court did not intervene on that count either.
Orders Made
- The Crown appeals were dismissed in the exercise of the Court's discretion.
Key Takeaways
- A finding of manifest inadequacy does not automatically compel a court of criminal appeal to intervene: where circumstances have materially changed during the appeal process, the discretion to dismiss remains available and may be exercised.
- Departure by a sentencing judge from agreed facts, without prior notification to the parties, risks procedural unfairness and can ground a ground of appeal, even where the departure is said to favour the offender.
- The Court of Criminal Appeal confirmed that counsel on both sides carry a responsibility to check agreed facts carefully against all other material, and to ensure that any inconsistencies are identified and resolved before the sentencing hearing concludes.
- Factors relevant to the dismissal discretion in this case included time already served, the offender's positive conduct in custody, hardship arising from the appeal process itself, youth, and the rehabilitative trajectory the offender was on at the time of the appeal.
- Under the sentencing framework applicable to multiple offences involving different victims, fully concurrent sentences will generally be insufficient: partial concurrency may be appropriate, but the separate criminality directed at each victim must be reflected in the overall sentence.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A
Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Deakin v The Queen (1984) 58 ALJR 367
- Power v The Queen (1974) 131 CLR 623