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Court of Criminal Appeal 13 February 2009

R v Miria

[2009] NSWCCA 68

Assault & violence
CRIMINAL LAW AND PROCEDURE SENTENCE CROWN APPEAL ASSERTING INADEQUACY CROWN SUBMISSION OF INADEQUACY UPHELD

Citation: R v Miria [2009] NSWCCA 68
Court: New South Wales Court of Criminal Appeal
Date: 13 February 2009
Judge(s): Grove J (with Blanch J and Latham J agreeing)

Background

The respondent pleaded guilty in the Local Court to maliciously inflicting grievous bodily harm with intent, contrary to s 33 of the Crimes Act 1900. The offence arose from an incident in the early hours of 26 April 2008 at a hotel in Manly, where the respondent struck a victim over the head with a schooner glass. The respondent had a prior record of three common assault offences, at least two of which also involved hotel incidents.

The matter was committed to the District Court for sentencing. Williams DCJ imposed a two-year suspended sentence, with the respondent required to enter a good behaviour recognizance for that period. The respondent was also on a recognizance at the time of the offence, which constituted an aggravating factor.

The Crown appealed, contending the sentence was manifestly inadequate. Two specific errors in the District Court's sentencing remarks were identified and pressed on appeal.

  • Whether the sentencing judge erred by effectively excluding general deterrence from the sentencing assessment on the basis that its effect is "debatable"
  • Whether the respondent's failure to plead guilty to a lesser charge, when not actually disputing guilt on the charge as laid, was a mitigating factor warranting leniency

Decision

On the first issue, the Court of Criminal Appeal found clear error. Williams DCJ had stated that the general deterrent effect of any sentence is "debatable" given it would likely only be published as a statistic, and this reasoning led his Honour to omit general deterrence from the sentencing calculus altogether. The Court held this was impermissible. General deterrence is a structural assumption of the criminal justice system and, since the judgment in R v Wong & Leung, has been expressly legislated as a sentencing purpose under s 3A(b) of the Crimes (Sentencing Procedure) Act 1999. While an individual offender's circumstances may sometimes reduce the weight given to general deterrence (for example, where a mental condition limits appreciation of wrongdoing), no such circumstances were present here.

On the second issue, the Court rejected any suggestion that the respondent's failure to plead guilty to a lesser offence was a matter of mitigation. Where an offender does not actually dispute guilt of the offence charged, declining to offer a plea to a lesser charge cannot be treated as a mitigating factor.

The Court also noted that this category of offence, involving alcohol-fuelled violence with a glass in a licensed venue, was one where the need to incorporate general deterrence was particularly prominent. The respondent's prior record of similar offences, combined with his being on a recognizance at the time, weighed against significant leniency, even though the offence was spontaneous and fell below the mid-range of seriousness for the offence type.

Applying the restraint appropriate to Crown appeals on resentence, the Court imposed a sentence lower than what would have been appropriate at first instance, while still reflecting the applicable sentencing principles correctly.

Orders Made

  • Crown appeal allowed
  • Sentence imposed in the District Court quashed
  • Respondent resentenced to imprisonment comprising a non-parole period of 2 years commencing 13 February 2009 and expiring 12 February 2011, with a balance term of 2 years commencing 12 February 2011
  • Earliest parole eligibility date specified as 12 February 2011

Key Takeaways

  • A sentencing court cannot dismiss general deterrence from the sentencing assessment on the basis that its effect is uncertain or debatable. Section 3A(b) of the Crimes (Sentencing Procedure) Act 1999 expressly mandates deterrence of other persons as a purpose of sentencing in New South Wales.

  • The Court of Criminal Appeal confirmed that general deterrence may carry reduced weight in exceptional circumstances (such as where a mental condition limits the offender's appreciation of wrongdoing), but no blanket exclusion of the principle is available.

  • Where an offender does not actually dispute guilt of the offence charged, the failure to plead to a lesser charge is not a mitigating factor and cannot be treated as such by the sentencing court.

  • Alcohol-fuelled violence involving a glass in a licensed venue is a category of offence for which general deterrence is a particularly significant sentencing consideration, as confirmed in this and related decisions of the Court of Criminal Appeal.

  • On Crown appeals against sentence, the Court of Criminal Appeal applies restraint and the resentenced term will ordinarily be less than what would have been appropriate had the error not occurred at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(b)

Cases:
- R v MAK & MSK [2006] NSWCCA 398
- R v Radich (1954) NZLR 86
- R v Rushby (1977) 1 NSWLR 594
- R v Sayin [2008] NSWCCA 307
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wong & Leung (1999) 48 NSWLR 340
- Veen v The Queen (No 2) (1987-8) 164 CLR 465