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Court of Criminal Appeal 14 February 2007

R v Douglas

[2007] NSWCCA 31

Assault & violence
CROWN APPEAL AGAINST SENTENCE

Citation: R v Douglas [2007] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 14 February 2007
Judge(s): McClellan CJ at CL, Bell J, Howie J

Background

The respondent pleaded guilty to two offences of malicious infliction of grievous bodily harm and malicious wounding, both arising from a single incident on 18 August 2003. Each offence carries a maximum penalty of seven years' imprisonment. The offences involved the respondent arming himself with metal poles and attending the home of two complainants, striking both men repeatedly, including one while he lay on the ground in a foetal position.

At the time of the offences, the respondent was serving a community service order, meaning he committed the assaults while already subject to a form of conditional liberty. The District Court sentenced him to terms with non-parole periods of twelve months and ten months respectively, but suspended the execution of both sentences on the condition that he enter into good behaviour bonds under s 12 of the Crimes (Sentencing Procedure) Act 1999.

The Crown appealed to the Court of Criminal Appeal, contending that the suspended sentences were manifestly inadequate.

  • Whether the District Court erred in suspending the execution of the sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge's factual findings regarding the assault on one complainant were open on the evidence
  • Whether the sentencing judge made impermissibly favourable findings regarding the respondent's prospects of rehabilitation and likelihood of re-offending
  • Whether the sentencing judge failed to treat the respondent's existing community service order as an aggravating factor at sentence
  • Whether, even if the sentences were manifestly inadequate, the Court of Criminal Appeal should exercise its discretion not to intervene given the double jeopardy principle

Decision

The Court of Criminal Appeal allowed the appeal, finding that the combination of identified errors had produced sentences that were manifestly inadequate. The principal error was the decision to suspend the execution of both sentences. The Court also found that the sentencing judge had made at least one factual finding that was not open on the evidence and had assessed the respondent's prospects of rehabilitation and risk of re-offending too favourably.

The Court found that the respondent's commission of serious violent offences while serving a community service order was a circumstance that should have been treated as an aggravating factor and had not been properly weighed by the sentencing judge.

On the question of discretion, the Court acknowledged the significant double jeopardy burden that a successful Crown appeal places on a respondent who has been at liberty on a bond. The respondent had been at liberty for approximately four months under the bond conditions, and the Court accepted that this factor warranted a degree of leniency in resentencing.

Balancing the seriousness of the offences against the double jeopardy consideration, the Court substituted periodic detention for the suspended sentences. The non-parole periods remained the same as those imposed below, and the time served on the bonds was factored into the restructured sentences, which also retained the sentencing judge's finding of special circumstances.

Orders Made

  • The appeal was allowed and the District Court sentences were quashed.
  • For count 2 (offence against Joseph Slominski): non-parole period of twelve months with a balance of term of eight months, to be served by periodic detention, commencing 24 February 2007 at the Metropolitan Periodic Detention Centre at Parramatta; release directed at the expiration of the non-parole period.
  • For count 3 (offence against David Grooms): non-parole period of ten months with a balance of term of five months, to be served by periodic detention, commencing 24 February 2007 at the Metropolitan Periodic Detention Centre at Parramatta.

Key Takeaways

  • The Court of Criminal Appeal confirmed that committing serious violent offences while already subject to conditional liberty, such as a community service order, must be treated as an aggravating factor at sentence.
  • Suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 will not always be appropriate for serious assaults, and their imposition may render an otherwise structured sentence manifestly inadequate.
  • Where a Crown appeal succeeds and the respondent has already spent time at liberty on a bond, the double jeopardy principle does not prevent resentencing but does inform a more lenient approach to the form of the new sentence.
  • Factual findings at sentence must be supported by the trial evidence; findings that are not open on the evidence will be treated as errors capable of contributing to a conclusion of manifest inadequacy.
  • Periodic detention was substituted for full suspension in this case as a middle path, reflecting both the seriousness of the offending and the mitigating effect of the double jeopardy consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33, 35(1)(a), 35(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases
- Pearce v R (1998) 194 CLR 610
- R v Allpass (1993) 72 A Crim R 561
- R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299
- R v Hammoud 118 A Crim R 66
- R v Wall [2002] NSWCCA 42
- R v Zamagias [2002] NSWCCA 17