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Court of Criminal Appeal 27 November 2006

RNM v Regina

[2006] NSWCCA 375

Assault & violencePublic order & justice offences

Citation: RNM v Regina [2006] NSWCCA 375
Court: NSW Court of Criminal Appeal
Date: 27 November 2006
Judge(s): Sully J, Simpson J, Hislop J

Background

The appellant (referred to throughout as "Mr M") was sentenced in the Gosford District Court following a trial in which a jury acquitted him of detaining a person for advantage in circumstances of aggravation (s 86(2) of the Crimes Act 1900), but found him guilty of the lesser alternative offence of detaining a person for advantage (s 86(1)). He had earlier changed his plea mid-trial and pleaded guilty to a related charge of assault occasioning actual bodily harm (s 59).

The offences arose from an incident in October 2003 in which the appellant, convinced that a 16-year-old acquaintance had stolen money from him, coerced that young man into attempting to rob a woman near a bank, then pursued him to another town, detained him in a motor vehicle, and subjected him to physical assaults and verbal abuse over a prolonged period as the group moved between several locations.

The District Court sentenced the appellant to five years imprisonment with a non-parole period of three years and nine months for the detention offence, and one year and four months with a non-parole period of twelve months for the assault, with both sentences running concurrently. The appellant sought leave to appeal against those sentences on two grounds.

  • Whether the sentencing judge erred in applying s 23 of the Crimes (Sentencing Procedure) Act 1999, which requires a court to consider reducing a sentence where an offender has assisted authorities
  • Whether fresh evidence of an undiagnosed life-threatening illness, discovered after sentencing and making the conditions of custody more onerous, warranted a reduction in sentence

Decision

Ground 1: Assistance to Authorities

The Court found that the sentencing judge had erred in his treatment of the appellant's cooperation with police. The judge had apparently discounted that assistance to near-nothingness on the basis that the Director of Public Prosecutions considered the appellant an unreliable witness whose evidence, if called at trial, would have attracted strong judicial warnings to the jury. Simpson J, with whom the other judges agreed, held that the "significance and usefulness" of assistance under s 23(1)(b) is not confined to evidence given in court. A police officer had given evidence that the appellant's assistance was of considerable value in advancing the investigation and filling gaps in the Crown case, and it was an error to disregard that assistance simply because the DPP had reasonably declined to call the appellant as a witness.

Ground 2: Fresh Evidence of Illness

The appellant sought to rely on medical evidence that he had been suffering from a symptomatic but undiagnosed life-threatening illness at the time of sentencing, the subsequent treatment of which had made his conditions of custody more onerous. The Court accepted this evidence was fresh and acknowledged that it excited sympathy. However, Simpson J noted that the medical evidence did not support the more graphic descriptions the appellant had given of his circumstances. The applicable test requires the Court to consider whether, notionally factoring in the fresh evidence as if it had been before the sentencing judge, some other sentence was warranted in law and should have been passed.

Outcome

Despite finding error on the first ground, the Court concluded that the sentences imposed were in fact lenient, and that neither error individually nor the fresh evidence collectively warranted any reduction. The Court was unable to be satisfied that some other sentence was warranted in law and should have been passed. Leave to appeal was granted but the appeal was dismissed.

Orders Made

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

Key Takeaways

  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999, the "significance and usefulness" of an offender's assistance to authorities is not limited to evidence given in court proceedings. A sentencing court should consider cooperation with investigators even where the DPP has declined to call the offender as a witness.
  • Identifying an error in the sentencing judge's reasoning does not automatically result in a reduced sentence. The Court of Criminal Appeal must still be satisfied that some other sentence was warranted in law and should have been passed before it will intervene.
  • Where fresh evidence of a post-sentencing medical condition is relied upon, the Court applies a notional test: it considers whether, had that evidence been before the sentencing judge at the time, a different sentence would have been warranted.
  • In dismissing the appeal, the Court noted that the sentences originally imposed were lenient in the circumstances, which weighed against interference even where error had been identified.
  • A publication suppression order applied throughout: no name or identifying material concerning the appellant was permitted to be published.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 86(1), 86(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Evidence Act 1995 (NSW), s 165(1)(e)

Cases
- Markarian v The Queen [2005] 79 ALJR 1048
- R v JCE (2000) 120 A Crim R 18
- R v Duffy (unreported, 13 October 1999)
- R v C (1994) 75 A Crim R 309
- R v Huang (1994) 78 A Crim R 111
- Iglesias v R [2006] NSWCCA 261
- Jones v R (1993) 70 A Crim R 449
- Starke (1992) 13 Criminal Appeal Reports (S) 548
- R v Pollitt [1992] HCA 35; 174 CLR 558
- R v Bailey (1988) 35 A Crim R 458
- R v Munday [1981] 2 NSWLR 177