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Court of Criminal Appeal 17 February 2009

R v Quin

[2009] NSWCCA 16

Assault & violence
CRIMINAL LAW SENTENCING CROWN APPEAL GANG ATTACK DEPARTURE FROM STANDARD NON PAROLE PERIOD

Citation: R v Quin [2009] NSWCCA 16
Court: NSW Court of Criminal Appeal
Date: 17 February 2009
Judge(s): Tobias JA, James J, Price J

Background

The respondent was convicted by a jury in the District Court of maliciously inflicting grievous bodily harm with intent, contrary to s 33 of the Crimes Act 1900, carrying a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. The offence arose from a gang attack in Broken Hill on the night of 18 May 2006. The respondent used his mobile phone to summon associates before confronting the victim, then punched and kicked him while others joined in. The victim suffered fractures to his jaw in two places, a fractured left eye socket, and a nasal fracture requiring a six-hour operation.

The sentencing judge in the District Court imposed a total term of 5 years, with a non-parole period of 2 years and 6 months. The Crown appealed on the basis that this sentence was manifestly inadequate.

  • Whether the sentencing judge made identifiable errors in departing from the 7-year standard non-parole period.
  • Whether the sentencing judge engaged in inappropriate double counting of mitigating factors.
  • Whether the sentencing judge gave insufficient weight to general and personal deterrence.
  • Whether the resulting sentence was manifestly inadequate.
  • If error was established, whether the Court of Criminal Appeal should exercise its discretion to intervene, having regard to the double jeopardy principle.

Decision

The Court of Criminal Appeal found that the sentencing judge had made identifiable errors. The departure from the standard non-parole period was not adequately supported, and the sentencing judge had engaged in double counting by treating the same mitigating factors more than once in reducing the sentence. The sentencing judge also gave insufficient weight to the considerations of general and personal deterrence, which were particularly significant given the calculated and group nature of the attack.

On the question of intervention, the respondent argued that the Court should decline to interfere because of the significant delay between the offence and the hearing of the Crown appeal. The Court rejected that submission, noting that the uncertainty the respondent faced was a natural consequence of Crown appeals and that there had been no undue delay by the Crown in pursuing the appeal.

The Court upheld the Crown appeal and re-sentenced the respondent. Consistent with the double jeopardy principle, the Court imposed what it regarded as the minimum sentence that might have been imposed at first instance rather than the sentence the Court itself considered most appropriate. The offence was found to fall slightly outside the middle range of objective seriousness, and the respondent's subjective features, including being a first-time custodial offender, justified a departure from the standard non-parole period. Those same factors also supported a finding of special circumstances, warranting a longer balance of term relative to the non-parole period.

Orders Made

  • The original sentence was set aside.
  • The conviction was confirmed.
  • The respondent was sentenced to imprisonment for 5 years 6 months, comprising a non-parole period of 3 years 2 months commencing 29 November 2007 and expiring 28 January 2011, and a balance of term of 2 years 4 months commencing 29 January 2011 and expiring 28 May 2013.
  • The earliest eligible date for release to parole is 28 January 2011.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Crown appeals against sentence remain subject to the usual appellate restraint: intervention is warranted only where identifiable error is shown, and even then the Court retains a discretion to decline to intervene.
  • Double counting of mitigating factors constitutes a specific and reviewable sentencing error capable of vitiating an otherwise discretionary decision.
  • Where a gang attack is premeditated and involves summoning associates to join in a serious assault, general and personal deterrence carry significant weight at sentencing and must receive proper consideration.
  • The double jeopardy principle applies at the re-sentencing stage: the Court of Criminal Appeal is required to impose the minimum sentence that could have been imposed at first instance, not the sentence it would itself have selected.
  • Delay between an offence and the hearing of a Crown appeal does not, of itself, warrant the exercise of the discretion to refuse intervention, particularly where the Crown has not been responsible for the delay and a custodial sentence was already in place.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A(2)(c), 44(1), 44(2)

Cases:
- House v The King (1936) 55 CLR 499
- R v Wall [2002] NSWCCA 42
- R v Way (2004) 60 NSWLR 168
- R v Simpson (2001) 53 NSWLR 704
- R v Alameddine [2004] NSWCCA 286
- R v Fidow [2004] NSWCCA 172
- R v Gordon (1994) 71 A Crim R 459
- R v Heron [2006] NSWCCA 215
- R v Johnson [2004] NSWCCA 140
- Versluys v R [2008] NSWCCA 76