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Court of Criminal Appeal 23 June 2010

Yammine v R

[2010] NSWCCA 123

Assault & violenceFirearms & weapons
APPEAL AGAINST SENTENCE PAROLE PERIOD ERROR IN SENTENCING MALICIOUS WOUNDING KNIFE USED SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Yammine v R [2010] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 23 June 2010
Judges: McClellan CJ at CL, Buddin J, Barr AJ

Background

The appellant had been sentenced in the District Court following guilty pleas to two offences: malicious wounding (under s 35(1)(a) of the Crimes Act 1900) and aggravated unauthorised possession of more than three firearms (under s 51D(2) of the Firearms Act 1996). The wounding offence arose from a 2005 incident in Terrigal, in which the appellant stabbed a man multiple times with a knife, puncturing his lung. The firearms offence arose from a 2006 police search of the appellant's home during a period of escalating tension between two rival motorcycle clubs, the Nomads and the Hell's Angels, during which seven firearms and a large quantity of ammunition were found.

For the wounding offence, the sentencing judge imposed a non-parole period of 2 years and 3 months with a balance of term of 1 year and 1 month. For the firearms offence, the judge imposed a non-parole period of 3 years and 6 months with a balance of term of 3 years and 3 months, also taking into account 23 additional offences. The total effective head sentence was 9 years with an effective non-parole period of 5 years and 9 months.

A significant error emerged: both the Crown and defence counsel had told the sentencing judge that a standard non-parole period of 10 years applied to the firearms offence. In fact, no standard non-parole period applied to either offence. The appellant sought leave to appeal against both sentences.

  • Whether the sentencing judge's mistaken belief that a 10-year standard non-parole period applied to the firearms offence constituted a material error warranting a lesser sentence
  • Whether the sentence for the firearms offence fell outside the proper range of sentencing discretion, having regard to the correct maximum penalty of 20 years
  • Whether the sentence for the malicious wounding offence was manifestly excessive
  • Whether leave to appeal the wounding sentence should be granted, given that sentence had already been served

Decision

On the firearms offence, the Court accepted that a genuine error had attended the sentencing process: the judge had been misinformed about the existence of a standard non-parole period, and that misinformation came from both parties. This was sufficient to grant leave to appeal. However, granting leave did not automatically lead to a different result.

The Court then considered whether a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912. Barr AJ characterised the firearms offence as very serious. Seven loaded or loadable firearms were found during a period of active inter-club violence, and the Court found that the danger to the public had been considerable. Measured against a maximum of 20 years' imprisonment, a total term of 6 years and 9 months for the firearms offence fell within the proper range of sentencing discretion. The misinformation about the standard non-parole period had not caused the judge to impose a sentence outside that range. Accordingly, the appeal was dismissed despite the established error.

On the malicious wounding offence, the Court refused leave to appeal. The sentence had already been fully served by the time of the hearing. The Court also found that the sentence had not been manifestly excessive in any event, given the serious nature of the offending, including the use of a knife and injuries that included a punctured lung.

The Court declined to accept, as fresh evidence, hearsay assertions of the appellant's remorse relayed through his partner some five years after the offending. Barr AJ noted that the sentencing judge had personally observed the appellant and expressed doubt about remorse, and the Court of Criminal Appeal had had no comparable opportunity to make its own assessment.

Orders Made

  • Leave to appeal granted against the sentence for the offence under s 51D(2) of the Firearms Act 1996
  • Appeal dismissed
  • Leave to appeal refused against the sentence for the offence under s 35 of the Crimes Act 1900

Key Takeaways

  • A sentencing error, here a misinformed standard non-parole period, does not automatically lead to a lesser sentence if the sentence actually imposed falls within the proper range of discretion having regard to the correct statutory framework.
  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must be satisfied that a lesser sentence is warranted in law before intervening, even where error is established.
  • Refusing leave to appeal a sentence that has already been fully served reflects a practical limitation on appellate intervention, particularly where the sentence is not shown to have been manifestly excessive.
  • Hearsay evidence of remorse, presented for the first time on appeal some years after sentencing, carries little weight where the sentencing judge personally assessed the offender and expressed doubt about genuine contrition.
  • Where both the Crown and the defence provide incorrect information to a sentencing court about applicable statutory provisions, error may be established on appeal while the ultimate sentence nonetheless survives scrutiny against the correct legal framework.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999, s 32
- Firearms Act 1996, s 51D(2)
- Crimes Act 1900, s 35(1)(a)
- Crimes (Sentencing Procedure) Amendment Act 2008, Sched 2 cl 17
- Interpretation Act 1987, ss 3, 34
- Criminal Appeal Act 1912, s 6(3)

Cases
- Harrison v Melhem [2008] NSWCA 67
- R v Mack [2009] NSWCCA 216
- R v Middlebrook [2004] NSWCCA 49
- R v Gardiner [2006] NSWCCA 190
- R v Brown [2006] NSWCCA 249
- R v George (2004) 149 A Crim R 38
- Nowak v R [2008] NSWCCA 89
- R v Astill (No 2) (1992) 64 A Crim R 289
- R v Simpson [2001] NSWCCA 534
- R v Douar [2005] NSWCCA 455