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Court of Criminal Appeal 25 May 2010

R v ELPHICK

[2010] NSWCCA 112

Assault & violencePublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE OFFENCES ARISING OUT OF SAME EVENTS

Citation: R v Elphick [2010] NSWCCA 112
Court: NSW Court of Criminal Appeal
Date: 25 May 2010
Judges: Allsop P, Grove J, Hislop J

Background

The respondent pleaded guilty in the Local Court to a charge of assault occasioning actual bodily harm (AOABH) and was also charged with affray, arising from a prolonged and violent attack on a bus driver during the respondent's late-night journey in the Illawarra region. The attack was captured on CCTV and involved sustained kicking and grappling that caused the bus to veer erratically along a public road before mounting a kerb. The victim was taken to hospital and treated for bruising, abrasions and skin tears.

Because the respondent had pleaded guilty to the AOABH charge and prosecution facts were tendered in the Local Court, the Director of Public Prosecutions was precluded by statute from later electing to have that charge moved to the District Court for trial on indictment. The affray charge was, however, elected to the District Court and the respondent appeared before Conlon DCJ at Wollongong for sentence on both matters.

The sentencing judge imposed concurrent sentences of 18 months (non-parole period) and 6 months (balance term) on each charge. The Crown appealed, arguing the sentences were manifestly inadequate and that the sentencing judge fell into error by treating the sentence for affray as though it were capped at the Local Court's two-year jurisdictional limit.

  • Whether the sentencing judge erred in treating the sentence for affray as restricted to the Local Court's jurisdictional ceiling of two years, when the DPP had validly elected to remove that charge to the District Court.
  • Whether a sentencing court, when dealing with related offences at different sentencing levels, is required to restrain the sentence for the elected (higher-court) offence to the Local Court maximum in order to avoid double punishment.
  • Whether the overall sentences imposed were manifestly inadequate given the objective seriousness of the offending.

Decision

Grove J (with whom Allsop P and Hislop J agreed) found that the sentencing judge had misapprehended the sentencing task in respect of the affray charge. Once the DPP elected to remove affray to the District Court, the respondent was exposed to the full maximum penalty available in that court. The judge's perception that the sentence was confined to the Local Court's two-year cap was an error of law.

The Court also rejected the proposition that the sentence for affray had to be artificially constrained to the Local Court level merely to avoid double punishment alongside the AOABH sentence. Provided the two sentences were structured so that one was subsumed within the other, no double punishment would arise. The appropriate mechanism was concurrent sentencing rather than a cap on the higher sentence.

The Court characterised the objective criminality of the offending as significantly high. The CCTV footage revealed a prolonged, frenzied assault on a working bus driver, which also endangered members of the public through the driver's loss of control of the vehicle. The respondent was on parole at the time and had prior relevant offending.

Allowing the Crown appeal in part, the Court quashed the District Court sentence for affray and resentenced the respondent to a total term of three years, divided as a non-parole period of two years and three months commencing 11 August 2009, with a balance term of nine months. The AOABH sentence was left undisturbed, and its term would be subsumed within the custody already accounted for by other sentences, avoiding any double punishment.

Orders Made

  • Crown appeal allowed in part.
  • Sentence imposed in the District Court for affray quashed.
  • Respondent resentenced to imprisonment with a non-parole period of 2 years and 3 months commencing 11 August 2009 and expiring 10 November 2011, with a balance term of 9 months commencing 11 November 2011.
  • Respondent ordered to be released to parole on 10 November 2011.

Key Takeaways

  • Once the DPP validly elects to remove a charge to a higher court, the sentencing court is not confined to the Local Court's jurisdictional ceiling when imposing sentence on that charge. A belief to the contrary constitutes an error of principle.
  • Under the framework in Pearce v The Queen, the requirement to avoid double punishment does not compel a sentencing court to artificially cap the higher-court sentence at the Local Court maximum. Concurrent sentencing that subsumes one term within another is a sufficient safeguard.
  • Where a guilty plea and tender of prosecution facts occur in the Local Court, the DPP's capacity to elect trial on indictment for that specific charge is extinguished under s 263(3)(b) of the Criminal Procedure Act 1986. However, related offences not subject to that procedure may still be elected up.
  • The Court of Criminal Appeal treated the objective seriousness of a sustained physical attack on a lone bus driver, captured on CCTV, as a significant aggravating feature warranting a materially higher sentence than that imposed at first instance.
  • Sentencing courts dealing with offenders who are already subject to parole or concurrent custodial terms must carefully map the practical effect of commencement dates to ensure the architecture of the total sentence is coherent and does not produce unintended windfalls or excess punishment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), ss 165, 166, 260(1), 263(3)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47(2)(b), 50

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v JW [2010] NSWCCA 49
- R v Thomson & anor (2000) 49 NSWLR 383