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21
Court of Criminal Appeal 7 December 2007

Hiron v R

[2007] NSWCCA 336

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW SENTENCING MULTIPLE OFFENCES APPLICATION OF UTILITARIAN DISCOUNT PRINCIPLE OF TOTALITY SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: Hiron v R [2007] NSWCCA 336
Court: NSW Court of Criminal Appeal
Date: 7 December 2007
Judge(s): McClellan CJ at CL, Hall J, Price J (Price J delivered the principal judgment)

Background

The appellant pleaded guilty in the District Court to seven offences arising from a series of violent incidents against his pregnant de facto partner over several days in late 2005, together with two counts of resisting police. The offences included four counts of assault occasioning actual bodily harm (under s 59(1) of the Crimes Act 1900), false imprisonment, and two counts of resisting a constable. The violence was sustained, severe, and occurred while the appellant was on parole.

Viney ADCJ imposed a total effective sentence comprising a non-parole period of four years (commencing 22 July 2006) and a balance of term of two years, expiring 21 July 2012. The appellant sought leave to appeal on the grounds that the sentencing judge had misapplied the utilitarian discount for guilty pleas, failed to properly apply the principle of totality, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge had correctly applied the utilitarian discount for the appellant's guilty pleas across each count
  • Whether the sentences imposed on counts 3a and 4a were structured correctly, having regard to the principle of totality (that is, whether the total sentence fairly reflects the overall criminality without being crushing)
  • Whether the aggregate sentence was manifestly excessive given the objective seriousness of the offending and the appellant's subjective circumstances

Decision

The Court of Criminal Appeal found that error had been established in the sentences imposed for counts 3a and 4a. Specifically, the structure of those sentences was flawed because the individual terms, when accumulated with the earlier counts, did not properly reflect the utilitarian discount available for the early guilty pleas. The Court re-sentenced the appellant on those two counts, adjusting the non-parole period on each from two years and six months to one year and nine months.

Critically, the re-sentencing on counts 3a and 4a did not alter the overall sentence. The Court used partial accumulation to ensure the total effective sentence remained exactly as the District Court had imposed: a non-parole period of four years expiring 21 July 2010, with a balance of term of two years expiring 21 July 2012.

The Court rejected the contention that the aggregate sentence was manifestly excessive. Price J noted that the offences were repeated acts of serious violence committed against a 23-weeks-pregnant victim, and that the appellant had a lengthy criminal record and was on parole at the time. These factors entitled the sentencing judge to give greater weight to personal deterrence and protection of the community. The overall sentence was found to fairly and justly reflect the totality of the appellant's criminality.

Although legal error was technically identified in the internal structure of the individual sentences, the Court declined to impose any lesser overall sentence. It held that no other sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Sentences for counts 3a and 4a quashed and replaced with restructured terms (non-parole period of 1 year and 9 months on each count, partially accumulated)
  • Total effective sentence unchanged: non-parole period of 4 years commencing 22 July 2006, balance of term of 2 years expiring 21 July 2012
  • Earliest parole eligibility date remains 21 July 2010

Key Takeaways

  • A structural error in the formulation of individual sentences within a cumulative regime can justify appellate intervention even where the overall sentence is not manifestly excessive, as the Court of Criminal Appeal confirmed here.
  • Identifying legal error does not automatically lead to a reduced sentence: under s 6(3) of the Criminal Appeal Act 1912, the Court must be persuaded that some other sentence is warranted in law before intervening to impose a lesser term.
  • Where an offender has a lengthy criminal record and commits serious offences while on parole, a sentencing court is entitled to place greater weight on personal deterrence and community protection than might otherwise apply.
  • The principle of totality requires that the aggregate of cumulative sentences fairly reflects the overall criminality of the offending, without being disproportionately crushing. Restructuring individual sentences to achieve that result, without changing the total, is a permissible appellate technique.
  • Utilitarian discounts for guilty pleas must be properly reflected in the structure of each individual sentence, not merely in the headline total.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 59(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Callaghan v The Queen (2006) 160 A Crim R 145
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Dunn (2004) 144 A Crim R 180
- R v Edigarov (2001) 125 A Crim R 55
- R v Hamid [2006] NSWCCA 302
- R v Knight (2005) 155 A Crim R 252
- R v McNaughton [2006] NSWCCA 242
- R v M.A.K.; R v M.S.K. [2006] NSWCCA 381
- Regina v Fernando [2002] NSWCCA 28
- Regina v Hajjo (Court of Criminal Appeal, 31 August 1992, unreported)