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Court of Criminal Appeal 22 December 2008

Black v R

[2008] NSWCCA 337

Public order & justice offences
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE APPEAL BY CONVICTED PERSONS SENTENCE MANIFESTLY EXCESSIVE CRIMES ACT 1900 S 323(A)

Citation: Black v R [2008] NSWCCA 337
Court: NSW Court of Criminal Appeal
Date: 22 December 2008
Judge(s): McClellan CJ at CL, Simpson J, Latham J

Background

The applicant was a 21-year-old man who, while in custody awaiting trial on charges of aggravated car-jacking and malicious wounding, sent a letter to one of the Crown witnesses in his car-jacking trial. The letter, signed with his nickname and sent under his prisoner identification number, warned the recipient to reconsider his evidence and threatened consequences if the applicant was convicted. The recipient provided the original to police and gave evidence regardless, resulting in the applicant's conviction on the primary charges.

The applicant was subsequently convicted after a separate hearing of doing an act with intent to influence a witness, contrary to s 323(a) of the Crimes Act 1900. The District Court sentenced him to a non-parole period of three years plus a balance of term of two years for that offence, effectively adding one year of full-time custody to the significant sentences he was already serving for the car-jacking and malicious wounding matters.

The applicant sought leave to appeal against that sentence on the ground that it was manifestly excessive. Notably, the Crown did not resist the appeal, accepting that the sentence warranted intervention.

  • Whether the sentence imposed by the District Court for the witness-influencing offence was manifestly excessive.
  • What the appropriate sentence was, having particular regard to the principle of totality (ensuring the overall sentence is not crushing) and the applicant's age and prospects of rehabilitation.

Decision

The Court of Criminal Appeal granted leave to appeal and upheld it, finding that the original three-year non-parole period was excessive. McClellan CJ at CL, with whom Simpson J and Latham J agreed, acknowledged the offence was serious, striking at the heart of the criminal justice system, and was not impulsive. However, the Court concluded it was not among the worst examples of its kind.

The Court placed significant weight on Judicial Commission sentencing statistics, which showed that of the 17 comparable cases recorded in the District Court, approximately half had been resolved by non-custodial means, and the applicant had received the heaviest sentence of any offender for this type of offence.

The Court emphasised that where a serious offence is to be sentenced alongside a substantial existing custodial term, the overall sentence must not become crushing. The applicant's age (19 at the time of the offence), troubled background, history of substance abuse, and prospects of rehabilitation all pointed to the need for a meaningful period of community supervision rather than an unduly extended custodial term.

The Court found special circumstances based on the applicant's youth and the need for the sentence to sit proportionately within the broader sentencing structure. A new sentence of 18 months non-parole followed by an 18-month further term was imposed, commencing on 6 April 2009, meaning the applicant would serve approximately 9 months of actual additional custody for this offence.

Orders Made

  • Leave to appeal granted and appeal upheld.
  • Sentence imposed in the District Court quashed.
  • Applicant re-sentenced to a non-parole period of 18 months commencing 6 April 2009 and expiring 5 October 2010, with a further term of 18 months expiring 5 April 2012.

Key Takeaways

  • An offence of influencing a witness under s 323(a) of the Crimes Act 1900 carries a maximum penalty of seven years imprisonment, but the Court of Criminal Appeal confirmed that not all such offences warrant sentences at or near the upper range.
  • Totality is a central consideration when sentencing for an offence that runs cumulatively with existing sentences: the combined effect must not be disproportionate or crushing.
  • Sentencing statistics from the Judicial Commission formed part of the Court's reasoning, with the fact that the original sentence was the heaviest recorded for this offence type treated as a relevant indicator of excess.
  • A young offender's age, background, and prospects of rehabilitation are legitimate factors that can support both a reduced custodial term and a finding of special circumstances justifying a longer-than-usual period of community supervision relative to time served.
  • The naivety of the conduct (signing the letter and including a prisoner identification number, making detection inevitable) was taken into account as reflecting immaturity rather than calculated or sophisticated wrongdoing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 323(a) (doing an act with intent to influence a witness), s 154C (assault with intent to take a motor vehicle whilst in company)

Cases:
- MB v R [2007] NSWCCA 245 (earlier successful sentence appeal by the same applicant in relation to the car-jacking and malicious wounding matters)