Citation: Kanengele-Yondjo v Regina [2006] NSWCCA 354
Court: New South Wales Court of Criminal Appeal
Date: 16 November 2006
Judge(s): McClellan CJ at CL, Sully J, Hislop J
Background
The appellant was diagnosed as HIV positive in February 1999 and was extensively counselled about his legal and personal obligations to disclose his status to sexual partners and to use condoms at all times. Despite that counselling, in 2003 he had unprotected sexual intercourse with two women, referred to as "A" and "B" to preserve their anonymity, and transmitted the HIV virus to each of them. Both women were subsequently diagnosed as HIV positive.
The appellant pleaded guilty in the Local Court to two counts of maliciously inflicting grievous bodily harm, contrary to section 35(1)(b) of the Crimes Act 1900. The maximum penalty for each offence is seven years imprisonment. He was sentenced in the District Court in December 2005 to a total of 12 years imprisonment, comprising a fixed term of 6 years on the first count followed by a further 6-year term (with a 3-year non-parole period) on the second count, making a total non-parole period of 9 years.
The appellant sought leave to appeal to the Court of Criminal Appeal, contending that the sentences were excessive on several grounds.
Legal Issues
- Whether the sentencing judge erred in classifying the offences as falling within the worst category of cases
- Whether the sentencing judge gave a sufficient discount for the guilty plea, particularly given it was entered at the earliest opportunity
- Whether the sentencing judge gave adequate reasons for limiting the guilty plea discount to 15%
- Whether adequate weight was given to the appellant's subjective circumstances
- Whether the sentencing judge erred in failing to fix a non-parole period for count one
- Whether the sentencing judge properly applied the totality principle when imposing cumulative sentences
- Whether the sentences were individually and collectively manifestly excessive
Decision
Worst case category: The Court of Criminal Appeal confirmed that the sentencing judge was entitled to place these offences in the worst case category. The appellant had been explicitly warned by two senior HIV specialists about his obligations and the consequences of non-compliance, yet he deliberately engaged in unprotected intercourse with two separate women, infecting both. The ongoing, incurable, and life-threatening nature of the harm inflicted on each victim supported that characterisation.
Guilty plea discount: The Court accepted that the sentencing judge applied a 15% discount for the guilty plea. Although the plea was entered at the earliest opportunity in the Local Court, the Court noted the sentencing judge had regard to relevant principles and that a sentencing court retains some discretion in calibrating the discount. No reviewable error was established on this ground, nor on the related ground concerning inadequacy of reasons.
Subjective circumstances and non-parole period for count one: The Court found no error in the weight given to subjective factors. As to the absence of a non-parole period on count one, the sentencing judge had the power under section 45 of the Crimes (Sentencing Procedure) Act 1999 to impose a fixed term, and the reasons for doing so were sufficiently apparent from the remarks on sentence.
Totality: The sentencing judge expressly considered the totality principle and determined that the separate, discrete nature of the offences against two different victims warranted fully cumulative sentences. The Court of Criminal Appeal found that approach was open on the facts and that no error had been demonstrated. Neither the individual sentences nor the aggregate sentence was found to be manifestly excessive, given the extreme criminality involved and the gravity of the harm caused to each victim.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that deliberately transmitting HIV to multiple victims, after explicit medical and legal warnings, can properly be characterised as falling within the worst category of offences under section 35(1)(b) of the Crimes Act 1900.
- A 15% guilty plea discount was upheld even where the plea was entered at the earliest opportunity, illustrating that a court retains some discretion in quantifying the discount and that earliness of plea does not automatically mandate any specific percentage.
- Cumulative sentences totalling 12 years with a 9-year non-parole period were not manifestly excessive where two separate victims suffered separate, ongoing, and incurable harm from two distinct episodes of offending.
- Under section 45 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may impose a fixed term without a non-parole period, and the reasons for doing so need not be exhaustively stated if they are apparent from the remarks on sentence read as a whole.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed the well-established principle that appellate intervention is warranted only where error by the sentencing judge is demonstrated and the appellate court positively concludes that a less severe sentence was warranted in law.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(1)(b), 36
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(k), 21A(5), 22(1), 45, 101A
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Markarian v R (2005) 215 ALR 213
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Johnstone [2004] NSWCCA 307
- R v Scott [2003] NSWCCA 286
- R v Simpson (2001) 53 NSWLR 704
- R v Thompson (1999-2000) 49 NSWLR 383
- R v Twala (NSWCCA, unreported, 4 November 1994)
- R v Weldon [2002] 136 A Crim R 55
- R v Wilson [2005] NSWCCA 219
- Veen v The Queen [No 2] (1987-1988) 164 CLR 465