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11
Court of Criminal Appeal 8 June 2007

Stevens v Regina

[2007] NSWCCA 152

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCING AFFRAY CONDUCT OF CO OFFENDER SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Stevens v Regina [2007] NSWCCA 152
Court: NSW Court of Criminal Appeal
Date: 8 June 2007
Judge(s): McClellan CJ at CL, Hidden J, Price J

Background

The appellant pleaded guilty in the District Court at Dubbo to a single count of affray arising from a violent incident at a rural property near Warren on 3 September 2005. He and two others travelled to the property to recover an unregistered vehicle, where they subjected the male and female occupants to a sustained assault using a baton, a tyre lever, and rocks. The victims sustained serious injuries, including multiple lacerations to the head requiring stitching and a range of blunt force injuries.

The sentencing judge imposed a term of 18 months imprisonment with a non-parole period of 12 months. The appellant sought leave to appeal on the ground that the sentence was manifestly excessive, targeting several aggravating factors the judge had applied under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.

The appellant had a significant prior record of violent offending, including a prior conviction for maliciously inflicting grievous bodily harm with intent and assault with intent to rob in company causing wounding. The present offence was committed within months of his release from parole.

  • Whether the sentencing judge erred in treating the co-offender Davis's use of a tyre lever against Mrs Herring as an aggravating factor attributable to the appellant
  • Whether "gratuitous cruelty" under s 21A(2)(f) was properly applied, given that conduct in question was Davis's, not the appellant's
  • Whether "offence committed in company" under s 21A(2)(e) could be treated as an aggravating factor when it was an element of the offence of affray
  • Whether the victims' vulnerability under s 21A(2)(l) was properly identified as an aggravating factor
  • Whether the overall sentence of 18 months with a 12-month non-parole period was manifestly excessive

Decision

The Court accepted that two of the aggravating factors applied by the sentencing judge were erroneous. First, Davis's conduct in striking Mrs Herring with a tyre lever could not be treated as an aggravating circumstance personal to the appellant under s 21A(2)(f) (gratuitous cruelty), since the appellant was not responsible for his co-offender's separate acts. Second, the Crown conceded that treating the offence as having been "committed in company" under s 21A(2)(e) was impermissible, because joint participation is an element of affray itself. The concluding words of s 21A(2) prohibit a court from treating an element of the offence as an additional aggravating factor.

On vulnerability, Price J (with whom McClellan CJ at CL agreed) held that it was open to the sentencing judge to find the victims were vulnerable given their isolated rural location and lack of ready access to assistance. The factual basis for this finding was present in the agreed statement of facts, and procedural fairness did not require the judge to warn the parties in advance that he intended to make such a finding.

Despite the two identified errors, the Court concluded they did not significantly affect the sentence. The violence was at a high level, mitigating factors were limited, and the appellant's prior record of serious violent offending justified greater weight being given to retribution, personal deterrence, and community protection. The Court declined to form the opinion, as required by s 6(3) of the Criminal Appeal Act 1912, that some other sentence was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court cannot treat a matter as an aggravating factor if that matter is an element of the offence charged. Because affray necessarily involves joint unlawful conduct, "offence committed in company" cannot be separately aggravating.
  • A co-offender's independently violent conduct cannot be attributed to the accused as "gratuitous cruelty" under s 21A(2)(f) where the accused is not personally responsible for that conduct.
  • Sentencing errors in the application of s 21A do not automatically warrant a reduction in sentence. The Court of Criminal Appeal confirmed that where the errors do not significantly affect the overall sentence, the appeal will still be dismissed if no other sentence is warranted in law.
  • Vulnerability under s 21A(2)(l) is not confined to personal characteristics of the victim. In this decision, the court accepted that an isolated rural location with no ready recourse to assistance could support a finding of vulnerability, provided that finding is grounded in the agreed facts.
  • A prior record of serious violent offending directly bears on the weight to be given to retribution, personal deterrence, and community protection, potentially displacing any leniency that might otherwise apply.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(2), 59(2), 93C, 112
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A, s 21A(2)(e), s 21A(2)(f), s 21A(2)(l)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Eleter [2003] NSWCCA 130
- R v Fajka [2004] NSWCCA 166
- R v H [2005] NSWCCA 282
- R v Huynh [2000] NSWCCA 18
- R v M.A.K; R v M.S.K [2006] NSWCCA 381
- R v McNaughton [2006] NSWCCA 242
- R v Palu [2002] NSWCCA 381
- The Queen v De Simoni (1987) 147 CLR 383