Citation: Regina v Saleib [2005] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 29 March 2005
Judge(s): Adams J, Bell J, Hall J
Background
The applicant, a man aged 22 at the time of sentencing, pleaded guilty in the Local Court to two serious offences: robbery in company (committed on 8 December 2002 in Sydney) and assault occasioning actual bodily harm in company (committed on 20 December 2002 in Blacktown). Both offences were captured on closed-circuit television footage. The robbery involved the applicant and associates confronting three men on a city street in the early hours of the morning, with one victim threatened with an implied firearm and another punched and kicked to the ground. The assault involved a vicious group attack on a stranger outside a Blacktown convenience store, leaving the victim unconscious and bleeding heavily.
At the time of sentence before Judge Knight in the District Court at Penrith, the applicant was already serving concurrent five-year sentences (with a three-year non-parole period) for three earlier convictions of robbery in company imposed in August 2003. The sentencing judge was therefore required to determine how the new sentences should be structured in relation to the existing terms, having particular regard to the principles of totality.
The applicant sought leave to appeal against the severity of the sentences imposed on 5 March 2004, arguing that the aggregate result was not just and appropriate when account was taken of his age, his efforts to address his drug and alcohol problems, his rehabilitation prospects, and the relatively short period between the offences and those already being served.
Legal Issues
- Whether the sentencing judge erred in accumulating the new sentences on the existing terms rather than ordering them to run concurrently or with greater concurrency.
- Whether the aggregate effect of the sentences, viewed as a whole, was just and appropriate having regard to the totality principle.
- Whether the sentencing judge gave adequate weight to the applicant's subjective circumstances, including his youth, his drug dependency, the delay in charging, and his rehabilitation prospects.
Decision
Bell J (with whom Adams J and Hall J agreed) concluded that the sentencing judge had correctly identified and applied the relevant principles. There was no submission that the judge had misstated the law. The applicant's complaint was directed at the result, contending that the combined sentences were manifestly excessive when the personal circumstances and the overlap between the various episodes of offending were considered.
The Court of Criminal Appeal was not persuaded. The robbery in company, with two related matters on a Form 1, constituted a discrete episode of serious criminal offending warranting partial accumulation. Commencing that sentence before the expiry of the non-parole period on the existing sentences appropriately reflected totality considerations. The further accumulation of the sentence for the assault occasioning actual bodily harm was also upheld: the two new offences were entirely separate criminal episodes, not a single course of conduct.
The Court noted that totality considerations were already embedded in the structure of the sentences. The assault sentence carried a notably short non-parole period of one year, and the overall structure allowed for three years of supervised parole at the end of the aggregate term. No error of principle was identified, and the sentences, viewed individually or in combination, did not exceed the sound exercise of sentencing discretion.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the totality principle does not require concurrent sentences wherever offences occur within a relatively short period; discrete episodes of serious criminal offending can properly attract accumulated or partially accumulated terms.
- A sentencing court's decision to accumulate sentences on an existing non-parole period may itself reflect totality considerations, particularly where commencing the new term before expiry of the existing non-parole period reduces the overall aggregate.
- Where the complaint on appeal is directed at the result rather than any identified error of principle, the Court of Criminal Appeal requires clear demonstration that the aggregate is not "just and appropriate" before it will intervene: Mill v R (1988) 166 CLR 59 at 63.
- Subjective factors including youth, drug dependency, delay in charging, and rehabilitation prospects must be weighed against the objective seriousness of the offences; the Court found that the sentencing judge's comprehensive reasons adequately addressed each of these matters.
- No error was established in the exercise of discretion, even though the Court acknowledged the sentencing exercise was a difficult one given the applicant's age and the need to balance totality against the gravity of repeated serious offending.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 (taking further offences into account on a Form 1)
Cases:
- Mill v R (1988) 166 CLR 59
- R v Fernando (2002) NSWCCA 28
- R v Gallagher (1991) 23 NSWLR 220
- R v Murchie (1999) 108 A Crim R 424
- R v Way [2004] NSWCCA 131; 60 NSWLR 168