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Court of Criminal Appeal 22 July 2008

AZZI v REGINA

[2008] NSWCCA 169

Assault & violence
CRIMINAL LAW SENTENCING APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: AZZI v REGINA [2008] NSWCCA 169
Court: New South Wales Court of Criminal Appeal
Date: 22 July 2008
Judge(s): James J, Hoeben J, Hall J

Background

The appellant pleaded guilty in the Parramatta District Court to one count of aggravated assault with intent to rob, contrary to s 95(2)(a) of the Crimes Act 1900. The aggravating circumstance was the use of corporal violence against the victim. The offence arose from an arrangement to purchase Staffordshire terrier puppies advertised in the Trading Post: the appellant attended the meeting, a dispute arose over the purchase price, and he punched the victim in the mouth.

The sentencing judge found that the appellant only formed the intent to rob at the time of the confrontation, that the offence was largely impulsive, and that it fell below the mid-range of its type. The judge sentenced the appellant to a total term of three years, comprising an 18-month non-parole period commencing 21 July 2007 and an 18-month balance of term. The appellant was 18 years old at the time of the offence and 19 at sentencing.

The appeal turned on what happened during the sentencing hearing. Before the Crown made its submissions, the sentencing judge had expressed a provisional view that a sentence of two years with a 12-month non-parole period might be appropriate. After Crown submissions, including reference to guideline and other authority, the judge revised that view upward and imposed a more substantial sentence. The appellant argued this process was legally flawed.

  • Whether the sentencing judge erred by concluding that a sentence of two years' imprisonment with a 12-month non-parole period would constitute appellable error, thereby improperly constraining the exercise of his sentencing discretion.
  • Whether the sentencing judge's upward revision from his provisional view, prompted at least in part by Crown submissions, represented an illegitimate self-imposed constraint rather than a proper reconsideration.

Decision

Hall J (with whom James J and Hoeben J agreed) dismissed the appeal. His Honour found that the sentencing judge's earlier remarks about a shorter sentence were expressed in provisional or tentative terms, and that it was entirely open to the judge to revise that preliminary assessment after hearing Crown submissions and being referred to relevant case law and sentencing statistics.

The Court rejected the argument that the judge had erroneously treated a two-year sentence as unavailable. Rather, the judge's observation that such a sentence would involve appellable error amounted to no more than a conclusion, reached after proper consideration, that it would not adequately reflect the seriousness of the offence. There was no suggestion that the judge treated the shorter sentence as legally precluded rather than simply insufficient.

The Court also rejected the argument that the Crown Prosecutor's submission about appellable error was made without authority. The guideline judgment in Regina v Henry (1999) 46 NSWLR 346, and its treatment in Regina v Tuncbilek [2004] NSWCCA 139, provided a legitimate reference point for that submission.

The ultimate sentence was, in Hall J's view, the product of a careful reconsideration of the provisional view in light of the case law and statistics placed before the judge, not the product of any self-imposed constraint on the sentencing discretion. The sentence appropriately took into account both the seriousness of the offence and the relevant mitigating factors.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's expression of a provisional or tentative view during the hearing does not bind the judge to that figure; revision upward after hearing submissions is a legitimate exercise of the sentencing discretion.
  • No error was established merely because the judge concluded, after considering relevant authority, that the sentence initially contemplated would be insufficient. Such a conclusion is distinct from treating a sentencing option as legally unavailable.
  • The Court of Criminal Appeal confirmed that the Crown may properly submit, by reference to guideline judgments and other authority, that a particular sentence would produce appellable error.
  • Where the final sentence reflects genuine reconsideration of a preliminary view in light of relevant case law and sentencing statistics, it cannot be characterised as the product of an improper self-constraint on the discretion.
  • In dismissing the appeal, the Court of Criminal Appeal drew a clear distinction between a judge ruling out a sentencing option as unavailable (impermissible) and a judge concluding on reflection that a lower figure would be inadequate (permissible).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 16(2)

Cases:
- Kutchera v Regina [2007] NSWCCA 121
- Regina v Henry (1999) 46 NSWLR 346
- Regina v Mason [2000] NSWCCA 207
- Regina v Tuncbilek [2004] NSWCCA 139