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Court of Criminal Appeal 16 May 2007

Assaf v Regina

[2007] NSWCCA 122

Assault & violenceFraud & dishonesty
CRIMINAL LAW SENTENCE

Citation: Assaf v Regina [2007] NSWCCA 122
Court: New South Wales Court of Criminal Appeal
Date: 16 May 2007
Judge(s): McClellan CJ at CL, Hulme J, Hislop J

Background

The appellant was a concreting sub-contractor who pleaded guilty to two offences: altering a cheque to inflate its value from $9,000 to $19,000 (attempted obtaining money by deception), and participating in a planned group assault on the complainant, a property developer who owed him money. The assault involved four other men, two of whom carried handguns and one a baton. The complainant was dragged from his car, punched, kicked, struck with a baton, and threatened with a firearm.

In April 2005, the District Court sentenced the appellant to a 12-month good behaviour bond on the deception count, and 18 months' imprisonment by way of periodic detention (with a nine-month non-parole period) on the assault count. The sentencing judge found strong subjective circumstances in the appellant's favour, including prior good character, contrition, early guilty pleas, and low prospects of reoffending.

Following sentencing, the appellant developed an adjustment disorder with anxiety and depression. This condition prevented him from attending the periodic detention centre on all but two occasions and had significant consequences for his family's financial position. He sought leave to appeal against the sentence on two grounds.

  • Whether the sentence of 18 months' periodic detention for the assault offence was manifestly excessive or outside the appropriate range
  • Whether psychiatric deterioration occurring after sentence, and attributable to the sentence itself, could justify appellate intervention and re-sentencing
  • Whether a subsequent probation and parole assessment finding the appellant unsuitable for periodic detention warranted the Court to re-sentence him

Decision

On the first ground, the Court found no error. Hislop J held that the sentencing judge had correctly weighed the objective seriousness of the assault (planned, involving actual and threatened use of weapons) against the appellant's favourable subjective case. The sentence was well within the available range, and counsel for the appellant did not seriously contend otherwise.

On the second ground, the Court declined to admit evidence of the appellant's post-sentence psychiatric condition. The established principle, confirmed in R v Munday, is that review of a sentence in light of subsequent events is a matter for the executive government, not the courts. Adhering to that principle, Hislop J rejected the additional evidence and dismissed this ground.

On the third ground, the Court found that a 2006 probation and parole report assessing the appellant as unsuitable for periodic detention carried little weight. The unsuitability finding rested entirely on the appellant's own statement that he could not cope in a custodial setting. In any event, that report also related to post-sentence events and was therefore inadmissible under the same Munday principle.

Despite dismissing the appeal, Hulme J added a notable observation. His Honour expressed the view that the combination of the sentence and the supervening psychiatric condition meant the appellant had suffered far more than the offence deserved, and that the case merited urgent consideration by the executive government under its powers to review and relieve sentences in exceptional circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed the long-standing principle from R v Munday (1981) 2 NSWLR 177 that reviewing a sentence in light of events occurring after it was imposed is a function of the executive government, not the appellate courts.
  • Evidence of post-sentence psychiatric deterioration, even where serious and arguably attributable to the sentence itself, is not admissible on a sentence appeal and does not ground appellate re-sentencing.
  • A probation and parole report finding an offender unsuitable for periodic detention carries diminished weight where the unsuitability is based solely on the offender's own subjective assertion.
  • Under s 66(4)(a) of the Crimes (Sentencing Procedure) Act 1999, a court retains the power to make a periodic detention order even where an assessment report finds the offender unsuitable.
  • Where a sentence falls within the discretionary range available to the sentencing judge, and that judge has properly identified and applied the relevant sentencing principles, an appellate court will not intervene even if the post-sentence consequences for the offender have been severe.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 178BA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A, 66(1)(b), 66(2), 66(4)(a)

Cases:
- R v Munday (1981) 2 NSWLR 177
- R v Ashton (2002) 137 A Crim R 73
- R v Ehrenburg (NSWCCA, unreported, 14 December 1990)
- R v Mioduszewski (NSWCCA, unreported, 28 May 2004)