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Court of Criminal Appeal 27 May 2008

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v LOMBARD

[2008] NSWCCA 110

Also reported as 184 A Crim R 565
Assault & violence
CRIMINAL LAW SPECIFICATION OF GROUNDS OF APPEAL CRIMINAL APPEAL ACT 1912 (NSW) S 5D(1) CRIMINAL APPEAL RULES (NSW) R 23E SENTENCING DISCOUNTS

Citation: Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 27 May 2008
Judge(s): Basten JA; Barr J; Buddin J

Background

The respondent pleaded guilty in the District Court to maliciously wounding a security guard with intent to cause grievous bodily harm, contrary to s 33 of the Crimes Act 1900 (NSW). The offence arose from a confrontation outside a Kings Cross nightclub in the early hours of 1 October 2006, during which the respondent stabbed the guard in the neck with a knife.

Tupman DCJ sentenced the respondent to three years imprisonment with a two-year non-parole period, to be served by way of periodic detention. Her Honour applied a total discount of one-third from what would otherwise have been the appropriate sentence: 20 per cent for the guilty plea, and a further 13.3 per cent for contrition and remorse combined with a weak Crown case on the element of intent.

The Director of Public Prosecutions filed a notice of appeal on 13 February 2008, contending the sentence was manifestly inadequate.

  • Whether the additional 13.3 per cent discount was excessive or involved impermissible double-counting of mitigating factors
  • Whether the sentence, taken overall, was manifestly inadequate
  • Whether, if manifest inadequacy were established, the Court should exercise its discretion to intervene

Decision

The Court dismissed the appeal on all grounds. On the additional discount, Basten JA (with Barr and Buddin JJ agreeing) held that it is not necessarily an error to express a proportionate reduction for mitigating factors beyond the utilitarian value of a guilty plea. While arithmetical discounts for mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) carry a risk of being misleading or producing double-counting, it was not demonstrated that the 13.3 per cent figure was erroneous in that way or that it pushed the sentence outside the appropriate range.

On manifest inadequacy, the Court observed that the Director had not challenged any of the primary findings made by Tupman DCJ, including that there was no premeditation, that the respondent removed the knife from a kitchen as a spontaneous act without malicious intent, that the guard had acted provocatively and with physical aggression, and that the injuries were not significant. The Court emphasised that the characterisation of the objective seriousness of an offence is classically the function of the sentencing judge, and an appellate court will only consider whether that characterisation was open on the facts. Accepting all of her Honour's unchallenged findings, the Court found it was not possible to characterise the sentence as manifestly inadequate.

The Court also addressed, briefly, the concern raised in Regina v Zamagias that sentences should not be tailored to permit a favoured sentencing order such as periodic detention. However, the Court found no basis on the facts to suggest that had occurred here.

Because manifest inadequacy was not established, the question of whether to exercise the discretion to intervene did not arise.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that an appellate court will not independently characterise the objective seriousness of an offence where the Director has not challenged the sentencing judge's primary factual findings or the inferences drawn from them.
  • Expressing a discount for mitigating factors such as contrition, remorse, or a weak Crown case as a distinct arithmetical percentage is not automatically erroneous, but carries risks of being misleading or producing double-counting of factors already reflected in the base sentence.
  • A finding of manifest inadequacy must be assessed against the facts as found by the sentencing judge. Where those findings are favourable to the offender and are left unchallenged on appeal, an argument of manifest inadequacy faces a substantial obstacle.
  • Sentences must not be tailored to achieve a particular sentencing order such as periodic detention, though no such tailoring was found to have occurred on the facts of this case.
  • Under Criminal Appeal Rules r 23E, the Director of Public Prosecutions faces no formal requirement to file grounds of appeal or written submissions within a specified timeframe, in contrast to requirements imposed on offenders appealing conviction or sentence. However, the Court noted that failure to particularise specific complaints about the sentencing process remains relevant to the exercise of the discretion to intervene.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 21A
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Criminal Appeal Rules (NSW), rr 23C, 23E

Cases
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Mulato v Regina [2006] NSWCCA 282
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- Regina v Deng [2007] NSWCCA 216
- Regina v Dickinson [2004] NSWCCA 457
- Regina v Zamagias [2002] NSWCCA 17