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Court of Criminal Appeal 24 June 2005

R v Youkhana

[2005] NSWCCA 231

Assault & violence
CRIMINAL LAW SENTENCE TAKING INTO ACCOUNT TIME SERVED FINDING FACTS AFTER CHARGE BARGAIN.

Citation: R v Youkhana [2005] NSWCCA 231
Court: NSW Court of Criminal Appeal
Date: 24 June 2005
Judges: Spigelman CJ, Hunt AJA, Howie J

Background

The applicant was originally convicted by a jury in December 2002 of five offences arising from an incident at Central Railway Station in September 2001. Among those convictions was a charge of maliciously inflicting grievous bodily harm on a police officer under s 60(3)(b) of the Crimes Act 1900, for which he received a sentence of 34 months with a 16-month non-parole period.

In April 2004, the Court of Criminal Appeal quashed that conviction and ordered a retrial, finding that the trial judge's summing-up had been deficient despite there being sufficient evidence to support the verdict. When the matter returned for retrial, the Crown accepted a guilty plea to the lesser charge of assaulting a police officer occasioning actual bodily harm under s 60(2), in full satisfaction of the indictment.

Acting Judge Mahoney sentenced the applicant to 22 months imprisonment with a non-parole period of 16 and a half months. The applicant sought leave to appeal, contending that sentence was manifestly excessive.

  • Whether the sentencing judge correctly assessed the applicant's criminal responsibility for injuries sustained by the police officer, given those injuries were physically inflicted by a co-offender rather than the applicant himself
  • Whether the starting sentence of three years (before reduction for the guilty plea) was manifestly excessive for the s 60(2) offence
  • Whether the court could take into account the full circumstances of the incident, including the serious injuries sustained by the officer, when sentencing on the lesser charge accepted by way of charge bargain
  • How time already served in custody for the quashed offence should be reflected in the new sentence

Decision

The Court found that the sentencing judge had erred in using the serious injuries suffered by the police officer as a significant aggravating factor. Those injuries were caused by a co-offender's punch, not by the applicant directly. Although the applicant's conduct in resisting arrest was found to have precipitated the co-offender's involvement, his criminal responsibility for the resulting injuries was limited. The Court held that only limited use could be made of those injuries in fixing the sentence for the lesser charge.

The Court also concluded that the starting point of three years was manifestly excessive given the applicant's actual conduct, his limited responsibility for the officer's injuries, and the passage of time since the offence combined with his rehabilitation efforts. An appropriate starting sentence was assessed at two years.

A 20 per cent discount was applied for the guilty plea, consistent with the approach taken below, producing a head sentence of 19 months. The Court found special circumstances warranting a shorter non-parole period of 10 months, having regard to the applicant's rehabilitation prospects and the probation officer's assessment that ongoing supervision was beneficial.

The sentence was backdated to 25 August 2004, meaning the non-parole period expired on the day judgment was delivered. The applicant was ordered released to parole immediately.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • Sentence imposed by Acting Judge Mahoney quashed
  • Applicant sentenced to 19 months imprisonment with a non-parole period of 10 months, commencing 25 August 2004
  • Non-parole period determined to expire on 24 June 2005, with the applicant released to parole that day
  • Parole subject to the usual conditions of supervision by the Probation and Parole Service

Key Takeaways

  • Where a conviction is quashed and a lesser charge is substituted by way of charge bargain, the sentencing court may still take into account the broader circumstances of the incident, but criminal responsibility must be assessed by reference to the actual conduct supporting the lesser offence, not the more serious conduct underlying the original charge.
  • A co-offender's actions can be relevant to sentencing where the principal offender's conduct precipitated those actions, but only limited weight attaches to resulting harm when the principal did not directly cause it.
  • The Court of Criminal Appeal confirmed that time served in custody referable to a quashed offence must be properly accounted for when imposing a fresh sentence, including through backdating the commencement date.
  • Rehabilitation progress made in the period between the original offending and resentencing is a legitimate mitigating consideration, particularly where a significant interval has elapsed.
  • Under the Crimes (Sentencing Procedure) Act 1999 s 44, special circumstances justifying a departure from the standard non-parole ratio can be established by reference to rehabilitation prospects and the need for supervised parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 60(2), 60(3)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Youkhana [2004] NSWCCA 87
- R v Newman and Simpson (2004) 145 A Crim R 361
- R v AEM [2002] NSWCCA 58
- R v MM (2003) 135 A Crim R 216
- R v Bedford (1986) 5 NSWLR 711
- R v Palu (2002) 134 A Crim R 174
- R v Barri [2004] NSWCCA 221
- R v Falls [2004] NSWCCA 335