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Court of Criminal Appeal 10 October 2006

GHAZI v R

[2006] NSWCCA 320

Assault & violence
CRIMINAL LAW CRIMINAL APPEALS SENTENCE APPEAL WOUNDING WITH INTENT TO MURDER MALICIOUS WOUNDING PROPER METHOD OR USE OF STANDARD NON

Citation: GHAZI v R [2006] NSWCCA 320
Court: New South Wales Court of Criminal Appeal
Date: 10 October 2006
Judges: Tobias JA, Howie J, Rothman J

Background

The appellant had pleaded guilty to maliciously wounding with intent to do grievous bodily harm under s 33 of the Crimes Act 1900 (NSW), following a violent stabbing incident at a Bankstown gym on 15 December 2003. A confrontation between the appellant and the victim escalated into a fight during which the appellant stabbed the victim multiple times to the stomach, back, and arms. The plea was accepted in full satisfaction of an indictment that had originally included the more serious charge of wounding with intent to murder.

In the District Court, Delaney DCJ sentenced the appellant to a non-parole period of 6 years commencing 16 December 2003, with a balance of term of 4 years and 6 months. The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of 7 years.

The appellant sought leave to appeal, arguing that the sentencing judge had misapplied the statutory provisions governing standard non-parole periods and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in applying s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which governs the use of standard non-parole periods.
  • Whether the sentencing judge misapplied the principles in R v Veen (No 2) (1998) 164 CLR 465 by placing excessive weight on the appellant's prior convictions.
  • Whether the overall sentence was manifestly excessive, having regard to sentencing statistics and comparable cases.

Decision

The Court granted leave to appeal and quashed the original sentence, finding multiple errors in the sentencing judge's reasoning. Howie J identified a clear error in the way the prior convictions had been treated. The appellant's relevant criminal history consisted of a common assault and a weapons-related offence, both from 2002. While those matters were not irrelevant, they could not properly support findings that the appellant had manifested a continuing attitude of disobedience to the law, or that personal deterrence and public protection were of special concern. The sentencing judge had, in effect, used those convictions as a matter of aggravation while nominally declining to do so.

The Court also identified error in the judge's application of the standard non-parole period provisions and expressed concern about the calculation underpinning the discount applied for the guilty plea. Rothman J noted that the starting figure before the discount was applied appeared curious, raising doubt about whether the discount for the guilty plea had been correctly factored in.

Examining sentencing statistics, Rothman J observed that the original sentence placed the appellant at the worst-case end of the range, rather than in the high mid-range as the judge had found. Taking into account fresh material placed before the Court of Criminal Appeal (including evidence of a serious assault suffered by the appellant while in custody), Rothman J set a starting point of 12 years before applying a 20 percent discount for the guilty plea. Special circumstances were also found, resulting in a longer-than-usual balance of term relative to the non-parole period.

Howie J characterised the revised sentence as lenient given the nature and number of the wounds, but accepted it as an appropriate correction of the sentencing discretion as erroneously exercised below.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by Delaney DCJ on 7 June 2005 was quashed.
  • For the offence of maliciously wound with intent to do grievous bodily harm (s 33 Crimes Act 1900 (NSW)), the appellant was sentenced to a non-parole period of 5 years commencing 16 December 2003 and expiring 15 December 2008, with a balance of sentence of 4 years and 7 months commencing 16 December 2008 and expiring 15 July 2013.
  • The earliest date of eligibility for release was set at 15 December 2008.

Key Takeaways

  • Prior convictions can only be used as an aggravating factor in sentencing by applying the principles in Veen (No 2). Where a sentencing court purports not to use prior convictions as aggravation but nonetheless applies those principles, that constitutes an error.
  • Minor or limited prior criminal history does not, without more, support findings of a continuing attitude of disobedience to the law, or elevate personal deterrence and public protection to primary sentencing considerations.
  • Sentencing statistics, while not determinative, can inform whether an offender has a justifiable sense of grievance about being sentenced outside the usual range for comparable offending.
  • The Court of Criminal Appeal may take into account fresh evidence, such as events occurring during the applicant's period of custody after the original sentence, when reassessing the appropriate sentence on appeal.
  • A discount for a guilty plea must be properly and transparently applied; where the arithmetic of the starting figure and the resulting sentence is unclear, it may disclose error in the overall exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 27, 33, 35(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW)

Cases:
- AJP v The Queen (2004) 150 A Crim R 575
- R v Moffitt (1990) 20 NSWLR 114
- R v Veen (No 2) (1998) 164 CLR 465
- R v Way (2004) 60 NSWLR 168
- R v McNaughton [2006] NSWCCA 242