Citation: Sayin v R [2008] NSWCCA 307
Court: NSW Court of Criminal Appeal
Date: 16 December 2008
Judges: McClellan CJ at CL, Grove J, Howie J
Background
The appellant pleaded guilty to maliciously inflicting grievous bodily harm under s 35 of the Crimes Act, an offence carrying a maximum penalty of 7 years imprisonment. The charge arose from an incident at a Darlinghurst hotel in June 2006, where the appellant smashed a spirit glass into a stranger's face after the stranger's conversation irritated him. The victim suffered a fractured nose, extensive facial lacerations requiring 40 sutures, glass shards embedded near his eye, chipped teeth, and ongoing numbness, with the prospect of further surgery.
The Crown had originally charged the appellant with malicious wounding with intent to cause grievous bodily harm under s 33, which carries a higher maximum. After two rejected plea offers, the Crown eventually accepted a guilty plea to the lesser s 35 offence approximately five weeks before trial.
In the District Court, Hosking DCJ sentenced the appellant to a total of 5 years imprisonment with a non-parole period of 3 years. The appellant sought leave to appeal on multiple grounds, including errors in assessing the value of the guilty plea, objective seriousness, the role of mental illness, and the treatment of prior criminal history.
Legal Issues
- Whether the sentencing judge erred by effectively finding an intent to cause grievous bodily harm, a finding that would have elevated the conduct to a more serious offence under s 33, when sentencing for the lesser offence under s 35
- Whether the sentence imposed was too close to the available statutory maximum for the actual offence of which the appellant was convicted, in breach of the principle established in De Simoni
- Whether the judge adequately discounted for the guilty plea
- Whether the judge correctly assessed the weight to be given to the appellant's mental illness and its causal connection to the offending
- Whether the judge correctly assessed the appellant's prior criminal record, including the extent of the Crown's obligation to tender material concerning that record
Decision
The Court allowed the appeal and resentenced the appellant. The central error identified was that the sentencing judge had, in substance, made a finding of intent consistent with a s 33 offence while sentencing for a s 35 offence. Under the principle in The Queen v De Simoni, a court may not take into account circumstances that would have the effect of making an offender guilty of a more serious offence than the one for which they are being sentenced.
That error had a direct consequence for the sentence length. Because the judge had effectively treated the conduct as attracting intent, the resulting sentence of 5 years sat uncomfortably close to the 7-year statutory maximum for the s 35 offence. Grove J found this assessment was infected by the De Simoni error and resentence was required.
The Court also addressed the Crown's obligation to tender material bearing on prior criminal history. Grove J discussed the extent of that obligation, noting it is not unlimited, and that the sentencing exercise must ultimately remain anchored to the statutory maximum for the offence actually before the court.
Howie J added that, absent the statutory maximum constraint, the original sentence would not have been considered excessive, and could even be described as lenient given the unprovoked, violent nature of the attack. He noted the increasing prevalence of "glassing" in licensed premises and observed that courts must impose severe penalties for such conduct, but strictly within the ceiling the legislature has set. He also flagged that the maximum for the recklessness variant of the offence had since been increased to 10 years, and that the substituted sentence, if imposed under the new maximum, might itself be considered inadequate.
Orders Made
- Leave to appeal against sentence granted and appeal allowed
- Sentence imposed in the District Court quashed
- Appellant resentenced to imprisonment comprising a non-parole period of 2 years 3 months commencing 23 August 2007 and expiring 22 November 2009, with a balance term of 1 year 6 months commencing 23 November 2009
- Earliest date of eligibility for release to parole specified as 22 November 2009
Key Takeaways
- The De Simoni principle prohibits a sentencing court from taking into account circumstances that would render the offender guilty of a more serious offence than the one for which they stand to be sentenced, even where those circumstances plainly exist on the facts.
- Where a sentencing judge makes findings effectively consistent with a higher offence, any resulting sentence that approaches the statutory maximum for the actual, lesser offence will be vulnerable to appellate correction.
- A guilty plea to a lesser charge, accepted by the Crown after rejection of earlier identical offers, must be reflected in the sentence; the timing and history of plea negotiations is relevant to assessing the utilitarian value of the plea.
- The Court of Criminal Appeal confirmed that courts must impose severe penalties for "glassing" offences, but that the prescribed statutory maximum acts as an absolute ceiling regardless of the objective gravity of the conduct.
- Increases to maximum penalties in subsequent legislative amendments are capable of affecting the range of appropriate sentences for similar future conduct, as Howie J's remarks about the revised s 35(2) maximum illustrate.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
Cases:
- The Queen v De Simoni (1981) 147 CLR 383
- Ibbs v The Queen (1987) 163 CLR 447
- R v Engert [1995] 84 A Crim R 67
- R v Thomson & anor (2000) NSWLR 383
- R v Israil [2002] NSWCCA 255
- R v Shankley [2003] NSWCCA 253
- R v George [2004] 149 A Crim R 38
- R v Way (2004) 60 NSWLR 168
- R v Wickham [2004] NSWCCA 193
- R v Walker [2005] NSWCCA 109
- Courtney v R [2007] 172 A Crim R 371
- R v Scognamiglio [1991] 56 A Crim R 81
- R v Mitchell (unreported, FCA, 9 December 1997)