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Court of Criminal Appeal 13 February 2006

Yassien v R

[2006] NSWCCA 15

Assault & violenceDomestic & family violence
SENTENCE APPEAL WHETHER ERROR PRINCIPLE OF TOTALITY.

Citation: Yassien v R [2006] NSWCCA 15
Court: New South Wales Court of Criminal Appeal
Date: 13 February 2006
Judge(s): Giles JA, Grove J, Hoeben J

Background

The appellant was sentenced in the District Court by Sorby DCJ for offences arising on 19 November 2004, including assault occasioning actual bodily harm, resisting police in the execution of their duty, and entering enclosed lands. A drug supply offence was taken into account on a Form 1. The assault arose from a domestic incident in which the appellant forced his way into a woman's home and punched her repeatedly, in front of her children, before threatening to return and burn the house down.

The appellant was sentenced to two years imprisonment with a non-parole period of one year for the assault offence, commencing 9 May 2005. That start date was chosen to run consecutively to an earlier six-month sentence he had received for separate, unrelated offences committed in July 2004.

The appellant had a history of schizophrenia, which his psychiatrist considered likely influenced his conduct at the time of the assault. He pleaded guilty at the first opportunity. The appeal concerned two grounds: first, that the sentencing judge failed to note the assault was capable of being dealt with summarily; and second, that the judge failed to apply the totality principle when structuring the sentences.

  • Whether the sentencing judge erred by failing to refer expressly to the fact that the assault occasioning actual bodily harm was an offence capable of being dealt with summarily, and what consequences (if any) flow from that omission.
  • Whether the sentencing judge erred by failing to expressly invoke the principle of totality when imposing sentences that were structured to commence after the expiry of an earlier unrelated custodial sentence.

Decision

On the first ground, the Court of Criminal Appeal confirmed that where an offence is capable of being dealt with summarily, a sentencing judge is ordinarily required to note that fact, as it signals that the legislature regarded the offence as one which can attract a modest penalty. However, failure to mention this does not automatically constitute error. The Court found that the sentence actually imposed, a two-year term for a serious assault with aggravating features, was not excessive in the circumstances, and the omission caused no practical injustice.

On the second ground, the Court found no error in the sentencing judge's approach to totality. Although his Honour did not explicitly invoke the principle, the reasoning in his remarks made clear, at least implicitly, that he was aware of the earlier sentence and had structured the new sentences to commence immediately upon its expiry. A sentencing judge is not required to recite sentencing principles by rote; it is sufficient that the reasoning process reflects their application.

The Court further noted that the earlier July 2004 offences and the November 2004 assault were serious and entirely unrelated. No reduction in the overall sentence was warranted on totality grounds, given the cumulative criminality involved.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's failure to expressly note that an offence is capable of summary disposal does not, by itself, constitute appellable error where the sentence imposed is otherwise appropriate on the facts.
  • No error was established merely because the sentencing judge omitted to mention the totality principle by name, provided the sentencing remarks demonstrate, at least implicitly, that the principle was applied.
  • Where sentences are structured to commence after the expiry of an earlier unrelated custodial sentence, a court may regard that sequencing as sufficient acknowledgment of totality, particularly where the offences are of independent gravity.
  • The Court of Criminal Appeal confirmed that sentencing judges are not required to enumerate sentencing principles in a formulaic way; what matters is whether the reasoning process reveals that relevant principles were considered.
  • Upholding the sentence, the Court noted that unrelated serious offending arising at different times does not automatically attract a reduction in aggregate sentences under the totality principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 59
- Enclosed Lands Protection Act 1901 (NSW), s 4(1)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Mental Health Act (NSW), s 32

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Crombie [1999] NSWCCA 297
- R v Depoma [2003] NSWCCA 382
- R v Doan (2000) 50 NSWLR 115
- R v El Masri [2005] NSWCCA 167
- R v Gent [2005] NSWCCA 370
- R v Hajjo (unreported, NSWCCA, 31 August 1992)
- R v Holder and Johnston (1983) 3 NSWLR 245
- R v Palmer [2005] NSWCCA 349