Citation: R v Cicekdag [2004] NSWCCA 357
Court: NSW Court of Criminal Appeal
Date: 29 October 2004
Judge(s): Grove J, James J, Hoeben J
Background
The respondent pleaded guilty in the Wollongong District Court to discharging a firearm in a public place and maliciously wounding a man during a street altercation in Wollongong in October 2002. The incident arose from a late-night confrontation between two groups, during which the respondent retrieved a silenced firearm from his vehicle and fired shots toward the complainant, striking him in the left knee. Four additional offences from the same night, including two assaults occasioning actual bodily harm, were placed on a Form 1 to be taken into account on sentence.
The sentencing judge imposed concurrent terms of 26 months with a non-parole period of 12 months on each count. The Crown appealed on the ground that the sentences were manifestly inadequate. Critically, the offences had been committed while the respondent was subject to a community service order.
Legal Issues
- Whether the sentences imposed were manifestly inadequate given the objective seriousness of the offences and the relevant aggravating factors
- Whether committing offences while subject to a community service order constitutes offending while on a form of conditional liberty, and therefore an aggravating circumstance
- How Form 1 matters should be attributed to specific head sentences when multiple counts are being sentenced
- Whether special circumstances justified a longer parole period, and how delay in sentencing should be treated
- Whether the residual discretion against Crown appeal intervention should be exercised
Decision
Hoeben J, with Grove J and James J agreeing, found the sentences manifestly inadequate. The objective seriousness of the offending was high: the respondent had armed himself with a silenced firearm, fired it in a public street, and wounded the complainant. The Form 1 matters included serious assaults on two other victims. The sentencing judge had failed to adequately reflect these circumstances, and the 12-month non-parole period was plainly insufficient.
On the community service order question, Grove J wrote separately to address the issue directly. A community service order is imposed "instead of imprisonment" under the relevant legislation, and an offender subject to such an order remains liable to have it revoked and be resentenced to imprisonment. In that sense, the respondent's liberty was conditional. Committing further offences while on such an order is an aggravating factor for the same reasons that apply to offending on parole, bail or recognizance: it constitutes an abuse of the freedom granted and demonstrates a failure of the rehabilitative opportunity the order was intended to provide.
The Court also addressed the proper use of Form 1 matters. The sentencing judge had failed to specify which head sentence incorporated the Form 1 offences, which the Court of Criminal Appeal identified as an error. On resentencing, the Form 1 matters were attributed to the firearm discharge count. The Court noted the respondent had shown no contrition beyond his early plea, with probation reports indicating he considered himself the victim. The absence of accumulation in the resentenced orders reflected the restraint this Court exercises when substituting sentences on a Crown appeal.
Orders Made
- Crown appeal allowed
- Sentences imposed by Goldring DCJ on 28 May 2004 quashed
- For malicious wounding: 2 years 6 months imprisonment, commencing 28 May 2004, with a non-parole period of 1 year 8 months
- For discharging a firearm in a public place: 3 years imprisonment, commencing 28 May 2004, with a non-parole period of 2 years (Form 1 matters taken into account in this sentence)
- Both sentences to be served concurrently
- Respondent directed to be released to parole on 27 May 2006
Key Takeaways
- A community service order constitutes a form of conditional liberty: because it is made "instead of imprisonment" and is revocable, an offender subject to one remains at risk of imprisonment, making further offending while subject to the order an aggravating factor on sentence.
- The aggravating effect of offending while on conditional liberty, whether parole, bail, recognizance, or community service order, rests on two consistent principles: the abuse of the freedom granted, and the failure of the rehabilitative opportunity that the non-custodial order was designed to provide.
- Sentencing courts must specify which head sentence incorporates Form 1 matters; failing to do so constitutes an error in the sentencing exercise.
- On a Crown appeal, the Court of Criminal Appeal exercises restraint in resentencing: the substituted sentence is set below what would otherwise have been appropriate, and toward the lower end of the available range.
- A 20% discount for an early guilty plea was not disturbed, but an inadequate head sentence cannot be rescued by an appropriate discount alone.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35, 93G(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 50, 90
- Crimes (Administration of Sentences) Act 1999 (NSW), s 115
Cases:
- Attorney-General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
- Mill v The Queen (1998) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Bavadra [2000] NSWCCA 292
- R v Camilleri (NSWCCA, unreported, 8 February 1990)
- R v Fernando [2002] NSWCCA 28
- R v Fidow [2004] NSWCCA 172
- R v Hammoud (2000) 118 A Crim R 66
- R v Jones (CCA, unreported, 30 June 1994)
- R v KM & Ors [2004] NSWCCA 65
- R v Richards (1981) 2 NSWLR 464
- R v Simpson (2001) 53 NSWLR 704
- R v Tran [1999] NSWCCA 109
- R v Vranic (NSWCCA, unreported, 7 May 1991)
- R v Wall [2002] NSWCCA 42
- R v WM [2004] NSWCCA 53