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19
Court of Criminal Appeal 2 August 2007

Regina v Deng Mading DENG

[2007] NSWCCA 216

Also reported as (2007) 176 A Crim R 1
Assault & violence

Citation: Regina v Deng Mading Deng [2007] NSWCCA 216
Court: New South Wales Court of Criminal Appeal
Date: 2 August 2007
Judge(s): Mason P, James J, Hislop J

Background

The respondent, a Sudanese-born man who had spent years in refugee camps before settling in Australia, pleaded guilty in the District Court to malicious wounding with intent to cause grievous bodily harm under s 33 of the Crimes Act 1900. The offence involved stabbing the victim four times in a brief but serious attack outside a Merrylands unit block in February 2006. Two of the wounds caused significant internal injuries, puncturing the victim's lung and injuring his spleen.

Judge Walmsley SC sentenced the respondent to a total term of three years imprisonment, comprising a two-year non-parole period commencing April 2007, with the sentence to be served by way of periodic detention. The maximum penalty for the offence is 25 years imprisonment, and the standard non-parole period is seven years.

The Crown appealed under s 5D of the Criminal Appeal Act, contending the sentence was manifestly inadequate given the seriousness of the offence and the standard non-parole period applicable to it.

  • Whether the sentencing judge erred in departing significantly from the standard non-parole period of seven years for an offence under s 33 of the Crimes Act 1900
  • Whether the sentence of three years periodic detention was manifestly inadequate, having regard to the objective gravity of the offence and the aggravating factors present
  • Whether, even if the sentence were manifestly inadequate, the Court of Criminal Appeal should exercise its discretion to dismiss the Crown appeal in light of post-sentencing circumstances

Decision

James J (with whom Mason P and Hislop J agreed) found that the objective facts of the offence were serious. The respondent had stabbed the victim four times in a sustained attack while uttering threats to kill, causing life-threatening injuries to internal organs. Two statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999 were present: the use of a weapon, and the commission of the offence while the respondent was on conditional liberty.

The sentencing judge had found substantial mitigating circumstances, including the respondent's traumatic background as a refugee from Sudan, separation from his family for years, severe post-traumatic stress disorder, strong prospects of rehabilitation, and the degree to which his family depended on him. These matters justified some departure from the standard non-parole period, but James J concluded that even taking all of these factors into account, the sentence was manifestly inadequate.

Nonetheless, the Court turned to the question of discretion. An affidavit filed on appeal, not objected to by the Crown, disclosed that since sentencing the respondent had complied fully with his periodic detention obligations, had undertaken agricultural studies, and remained the sole English-speaking adult in a family heavily dependent on him. His mother was seriously ill and facing surgery. These post-sentencing developments reinforced the exceptional hardship that full-time imprisonment would impose on vulnerable family members.

Applying the principle from R v Wall that the Court retains a "lively discretion" to decline to intervene even where error is established, James J concluded that the discretion should be exercised in the respondent's favour and the appeal dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a finding of manifest inadequacy does not automatically compel intervention: the court retains a genuine discretion to dismiss a Crown appeal even after error is established, consistent with R v Wall.
  • In exercising that discretion, the Court took into account material developments arising after sentencing, including the respondent's compliance with periodic detention and the serious illness of a dependent family member.
  • A sentence of three years periodic detention for a s 33 Crimes Act offence, where the standard non-parole period is seven years, was found to be manifestly inadequate on the objective facts, notwithstanding significant subjective and background mitigating factors.
  • Under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, use of a weapon is an aggravating factor for malicious wounding with intent, even though many such offences involve weapons: the factor is not excluded simply because it may be common in the offence type.
  • Compelling personal circumstances, including a severe refugee background, diagnosed PTSD, and exceptional family dependence, may justify substantial departure from a standard non-parole period, but will not necessarily reduce a sentence to the extent ordered here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33 (malicious wounding with intent to cause grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(c), s 21A(2)(g), s 21A(2)(j); Div 1A of Pt 4 (standard non-parole periods)
- Criminal Appeal Act (NSW), s 5D

Cases:
- Mulato v Regina [2006] NSWCCA 282
- R v AJP (2004) 150 A Crim R 575
- R v Birks (1990) 19 NSWLR 677
- R v Dickinson [2004] NSWCCA 457
- R v Fordham (1997) 98 A Crim R 359
- R v Goodwin (1990) 51 A Crim R 328
- R v Macadam-Kellie [2001] NSWCCA 170
- R v Maharaj [2004] NSWCCA 387
- R v Slack [2004] NSWCCA 128
- R v Wall [2002] NSWCCA 42
- R v Way (2004) 60 NSWLR 168
- R v Wickham [2004] NSWCCA 193