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Court of Criminal Appeal 7 September 2005

R v Afele

[2005] NSWCCA 315

Assault & violenceTheft & property
APPEAL AGAINST SEVERITY OF SENTENCE PLEAS OF GUILTY PARITY WITH SENTENCES IMPOSED UPON CO OFFENDERS SUBJECTIVE CIRCUMSTANCES REMORSE

Citation: R v Afele [2005] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 7 September 2005
Judge(s): McClellan CJ at CL, Simpson J, Howie J

Background

In the early hours of 8 December 2002, the applicant took part in two separate group attacks in Sydney. The first involved punching and kicking a victim on King Street until he fell to the ground twice, causing bruising, a black eye, and a conjunctival haemorrhage. Less than an hour later, the same group robbed two further victims at Darling Harbour, taking cash and mobile phones.

The applicant was charged with one count of assault occasioning actual bodily harm whilst in company and two counts of robbery whilst in company. He pleaded guilty to all three charges and was sentenced by Woods DCJ in the District Court. The total effective sentence was four years imprisonment with a non-parole period of two years.

On appeal, the applicant sought leave to challenge the severity of those sentences. His two principal grounds were that the sentence on the assault count was manifestly excessive, and that, when compared with sentences given to co-offenders, all three sentences gave rise to a justifiable sense of grievance.

  • Whether the sentence imposed on the assault occasioning actual bodily harm count was manifestly excessive in light of the applicant's subjective circumstances
  • Whether the overall sentences were disproportionate compared to those received by co-offenders, particularly the older co-offender Foaga, so as to produce a justifiable sense of grievance
  • Whether the structural form of the assault sentence complied with the requirements established in Pearce v The Queen

Decision

The Court of Criminal Appeal found that the sentence on the assault count was technically flawed in its structure. Under Pearce v The Queen, where a court imposes a fixed term of imprisonment on one count, it must not also set a non-parole period for that count in a way that is inconsistent with the governing principles. The court set aside the original three-year sentence with a two-year non-parole period on the assault count and re-sentenced the applicant to a fixed term of 18 months on that count. This adjustment preserved the overall total sentence without reducing it.

On the parity ground, the court acknowledged that the applicant might reasonably feel aggrieved by the disparity between his outcome and Foaga's. Foaga had been charged with less serious offences, including assault charges rather than robbery charges, following the Crown's acceptance of reduced pleas. However, the court noted that this disparity arose from prosecutorial decisions that are not reviewable on a severity appeal. The sentencing judge had been required to sentence each offender on the actual charges before the court, and those charges differed materially.

The court found that the difference in outcomes was sufficiently explained by the difference in the charges each offender faced, combined with the different timing and circumstances of their pleas. Taking the totality of the offending into account, four years with a two-year non-parole period for three serious offences, committed by a young offender with strong subjective circumstances, was not manifestly excessive. The appeal was otherwise dismissed.

Orders Made

  • Leave to appeal granted
  • Sentence imposed in respect of Count 1 (assault occasioning actual bodily harm whilst in company) set aside
  • Applicant re-sentenced on Count 1 to a fixed term of imprisonment of 18 months, commencing 28 July 2004 and expiring 27 January 2006
  • Appeal otherwise dismissed

Key Takeaways

  • A disparity in sentencing outcomes between co-offenders does not automatically produce a justifiable sense of grievance where the charges each faced were materially different, even if those differences arose from prosecutorial decisions to accept reduced pleas.
  • The Court of Criminal Appeal confirmed that prosecutorial discretion in accepting pleas to lesser charges is not subject to review on a severity appeal; the sentencing court must work with the charges actually before it.
  • Under Pearce v The Queen, sentencing courts must structure sentences on individual counts consistently with governing principles; a structural error on one count can require re-sentencing on that count even where the overall sentence is not excessive.
  • Strong subjective circumstances, including youth, prior good character, genuine remorse, community involvement, and intoxication at the time of offending, were all before the court but did not render a four-year total sentence manifestly excessive for three serious group offences.
  • In applying totality principles, the court assessed the overall effective sentence rather than individual components in isolation when determining whether a combined sentence was appropriate to the full scope of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- The Queen v Postiglione [1997] HCA 26; 189 CLR 295
- The Queen v Lowe [1984] HCA 46; 154 CLR 606
- R v Tran [2005] NSWCCA 35
- R v Hallacoglu (1992) 29 NSWLR 67
- R v Diamond, NSWCCA, unreported, 18 February 1993