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Court of Criminal Appeal 17 February 2005

Regina v Tran

[2005] NSWCCA 35

Assault & violence
CRIMINAL LAW AND PROCEDURE INDICTMENT PLEA OF GUILTY TO STATUTORY ALTERNATIVE PARITY OF SENTENCE WITH JUVENILE CO OFFENDER

Citation: Regina v Tran [2005] NSWCCA 35
Court: New South Wales Court of Criminal Appeal
Date: 17 February 2005
Judges: Grove J, Hidden J, Bell J

Background

The applicant, a 20-year-old woman, was part of a group that followed a 16-year-old victim from an arcade in George Street, Sydney, to Town Hall Railway Station after a confrontation in October 2003. The applicant's sister produced a knife and attacked the victim. The applicant joined in the assault, holding the victim while her sister continued the knife attack. The victim sustained 36 lacerations across her face, scalp, and chest.

The applicant was charged on indictment with malicious wounding with intent to cause grievous bodily harm under s 33 of the Crimes Act 1900. Before the jury delivered a verdict, her counsel indicated she would plead not guilty but guilty to the "statutory alternative," which the Crown accepted in full discharge of the indictment.

The sentencing judge, Kinchington ADCJ, imposed a sentence of 18 months imprisonment with a non-parole period of six months. The applicant sought leave to appeal, contending the sentence was excessive and raising a parity argument based on the sentence received by her juvenile co-offender in the Children's Court.

  • Whether the endorsement on the back of the indictment recording a guilty plea to the "statutory alternative" was ambiguous as to which alternative offence under s 35 of the Crimes Act 1900 had been charged: malicious wounding under s 35(1) (maximum 7 years) or the aggravated form, malicious wounding in company under s 35(2) (maximum 10 years).
  • Whether, given that ambiguity, the sentence imposed was excessive when assessed against the less serious alternative.
  • Whether the sentence was infected by an error in the sentencing judge's assessment of the respective culpability of the three co-offenders.
  • Whether proper regard was given to the principle of parity, given the sentence imposed on the juvenile co-offender in the Children's Court.

Decision

The Court identified genuine ambiguity in the indictment endorsement. The plea had been recorded simply as "guilty to statutory alternative" with no express reference to the "in company" aggravation required for a conviction under s 35(2). Although the transcript suggested all parties understood the plea to relate to the aggravated offence, the formal record did not clearly reflect this. The Court resolved the ambiguity in the applicant's favour, treating the conviction as one under s 35(1), carrying a maximum of seven years.

On the question of culpability, the Court accepted the sentencing judge's finding that the applicant bore the least responsibility of the three co-offenders. She was the last to join the assault, her initial motivation appeared to be protecting her sister, and it was her co-offender who had drawn the sister's attention to the knife. The Court saw no reason to disturb that assessment, including the Crown's attempt to recast the relative culpability of the applicant and her juvenile co-offender as equal.

On parity, the Court acknowledged that a Children's Court sentence imposed on a juvenile co-offender is not an irrelevant comparator, but noted that age, the different sentencing regime applicable to juveniles, and the different circumstances of each offender limit the weight such a comparison can carry.

Even taking the less serious offence as the basis for sentencing and giving full weight to the applicant's subjective circumstances, the Court found no error and concluded that a lesser sentence was not warranted. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Where an indictment endorsement is ambiguous as to which of two statutory alternatives was pleaded, the Court of Criminal Appeal will resolve that ambiguity in the offender's favour when assessing whether the sentence was excessive.
  • A guilty plea to a "statutory alternative" does not automatically incorporate an aggravating circumstance, such as commission of the offence in company, unless that circumstance is expressly reflected in the formal record of proceedings.
  • The endorsement on the back of an indictment remains the formal record of criminal proceedings, and courts will assess questions of conviction and sentence by reference to what that document records.
  • A sentence imposed by the Children's Court on a juvenile co-offender is not an irrelevant consideration for parity purposes, but the different sentencing regime for juveniles and individual differences between offenders substantially limit the weight it carries.
  • In dismissing the appeal, the Court confirmed that appellate intervention under s 6(3) of the Criminal Appeal Act 1912 requires a positive conclusion that a lesser sentence was warranted, not merely that a different outcome was open.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 34, 35(1), 35(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Astill (No 2) (1992) 62 A Crim R 289
- R v Carrion (2002) 128 A Crim R 29
- R v Cocking [1999] NSWCCA 311
- R v Colgan [1999] NSWCCA 292
- R v Diamond (CCA, unreported, 18 February 1993)
- R v Govinden (1999) 106 A Crim R 314
- R v Holton [2004] NSWCCA 214
- The Queen v De Simoni (1981) 147 CLR 383