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Court of Criminal Appeal 30 June 2008

Sassine v R

[2008] NSWCCA 146

Assault & violencePublic order & justice offences
CRIMINAL LAW CONSPIRACY OFFENCES SENTENCING SPECIAL CIRCUMSTANCES PARITY PARTIAL RESENTENCING

Citation: Sassine v R [2008] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 30 June 2008
Judge(s): Beazley JA, Johnson J, McCallum J

Background

The applicant pleaded guilty in the District Court to conspiring to maliciously inflict grievous bodily harm with intent, as well as two counts of assaulting and resisting police officers in the execution of their duty. Two further offences of the same type, involving a second detective, were listed on a Form 1, meaning they were taken into account at sentencing without being the subject of separate convictions.

The conspiracy arose from a commercial dispute between business rivals. The applicant's role was to drive two other men to a shopfront where they intended to carry out a violent assault, not knowing they were walking into a police operation. When the scheme was disrupted and the applicant was arrested, he physically struggled with officers, leading to the police-related charges.

The District Court sentenced the applicant to fixed terms of 12 months for each police-related count on the indictment, and a sentence of five years (comprising a three-year non-parole period and a two-year balance of term) for the conspiracy, with the latter accumulated by six months on the fixed terms. The sentencing judge expressly took the Form 1 matters into account when dealing with the conspiracy count.

  • Whether the sentencing judge erred by duplicating the penalty for the Form 1 offences, effectively punishing the applicant twice for those matters
  • Whether special circumstances justified a longer-than-usual additional term (the portion of a sentence served after parole eligibility)
  • Whether there was a parity concern, given sentences imposed on co-offenders
  • Whether, if error was established, the Court should resentence the applicant afresh or make a targeted correction

Decision

The Court of Criminal Appeal accepted the applicant's primary ground of appeal. The sentencing judge had taken the Form 1 offences into account when sentencing for the conspiracy, but then also accumulated part of the conspiracy sentence upon the fixed terms that addressed those same Form 1 offences. This created an inadvertent partial duplication, meaning the applicant was, in effect, punished twice for the same conduct.

The Court applied the principles from Pearce v The Queen (1998) 194 CLR 160, which prohibits double punishment for the same criminal act. The error, while inadvertent, had a real and concrete effect on the sentence actually served.

On the question of whether to resentence afresh, the Court applied the approach outlined in R v Burke [2002] NSWCCA 353. Where an error has a narrow and discrete effect on the overall result, and the sentence is not otherwise manifestly excessive, the Court may correct the error surgically rather than undertaking a full resentencing exercise. The Court found this was such a case.

The Court concluded that, because the precise extent of the additional accumulation could not be calculated with certainty, the appropriate remedy was to eliminate one-third of the accumulated period. The non-parole period for the conspiracy count was adjusted to commence on 1 September 2007 rather than 1 November 2007, reducing the accumulation accordingly.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentence imposed by Sweeney DCJ in respect of count 1 (the conspiracy offence) quashed
  • The applicant resentenced on count 1 to a non-parole period of 3 years commencing 1 September 2007, with an additional term of 2 years
  • Earliest parole eligibility recorded as 31 August 2010

Key Takeaways

  • Under the Pearce principle, a sentencing court must not punish an offender twice for the same criminal conduct, whether that conduct appears on the indictment or on a Form 1.
  • Where an offence is taken into account via a Form 1, it informs the head sentence for the primary count; it cannot then separately justify additional accumulation of that head sentence onto fixed terms addressing the same underlying conduct.
  • A full resentencing exercise is not always required when appellate error is identified. The Court of Criminal Appeal confirmed that a narrow and discrete error may be corrected by a targeted adjustment, provided the sentence is not otherwise manifestly excessive.
  • The applicant's developmental delay and borderline intellectual functioning were accepted as moderating his moral culpability, though only to a slight-to-moderate extent, given that his condition had not prevented him from functioning in the community and maintaining employment.
  • In assessing the conspiracy offence, the sentencing court declined to treat planning and acting in company as aggravating factors, finding both were inherent in the nature of a conspiratorial agreement and should not be double-counted.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Pearce v The Queen (1998) 194 CLR 160
- R v Burke [2002] NSWCCA 353