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Court of Criminal Appeal 22 February 2010

COLLINS, Marcus Shane v R

[2010] NSWCCA 13

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE ALLOWED.

Citation: Collins, Marcus Shane v R [2010] NSWCCA 13
Court: New South Wales Court of Criminal Appeal
Date: 22 February 2010
Judges: McClellan CJ at CL, Howie J, Harrison J

Background

The applicant was sentenced in the District Court at Gosford in September 2008 for offences arising from a series of incidents spanning just over five weeks in mid-2007. All offences occurred in the context of a turbulent and abusive relationship with the victim. The offending comprised three counts of common assault, two counts of malicious damage to property, and one count of intimidation.

The common assault and malicious damage charges had originally been dealt with by way of guilty pleas in Wyong Local Court. Those matters were committed to the District Court under a certificate pursuant to section 166 of the Criminal Procedure Act 1986, so they could be sentenced alongside the more serious charges. The jury ultimately found the applicant guilty of intimidation but not guilty of malicious infliction of grievous bodily harm.

The District Court imposed a total effective sentence of 4 years, 10 months and 14 days, with a non-parole period of 3 years and 7 months. The applicant sought leave to appeal to the Court of Criminal Appeal, contending the sentences were infected by error and were manifestly excessive.

  • Whether the sentencing judge failed to take into account that all charges could have been dealt with in the Local Court, which carries a lower maximum penalty for summary disposal.
  • Whether the sentencing judge failed to properly assess, or assess at all, the objective seriousness of the offences to which the applicant had pleaded guilty in the Local Court.
  • Whether the sentences imposed were manifestly excessive.

Decision

The Court of Criminal Appeal found error in the sentencing judge's approach. A critical consideration was that the common assault and malicious damage charges were offences capable of being dealt with summarily, carrying lower maximum penalties in that jurisdiction. The sentencing judge failed to give proper weight to this when fixing the sentences for those matters.

The Court also found the sentencing judge had not adequately assessed the objective seriousness of the offences dealt with on the section 166 certificate. Proper sentencing requires the court to position each offence within the range of conduct the offence covers, and the absence of that assessment constituted a further error.

On the intimidation count, the Court accepted that the sentencing judge's own characterisation of the conduct as something that "could have been worse" was inconsistent with the three-year sentence imposed. Taking into account the circumstances of the police attendance during the relevant events and the overall context, the Court found the sentence for intimidation was manifestly excessive and warranted reduction.

The combined effect of these errors led the Court to quash all sentences and re-sentence the applicant. The new total effective sentence of 3 years, with a non-parole period of 2 years and 8 months, represented a reduction of nearly two years on the original aggregate.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Original sentences imposed by Nield DCJ on 12 September 2008 quashed and replaced as follows:
  • Common assault (15 May 2007): 6 months imprisonment, 23 June 2007 to 22 December 2007.
  • Common assault (9-10 June 2007): 4 months imprisonment, 23 December 2007 to 22 April 2008.
  • Common assault (9-10 June 2007): 4 months imprisonment, 23 April 2008 to 22 August 2008.
  • Malicious damage (9-10 June 2007): 2 months imprisonment, 23 August 2008 to 22 October 2008.
  • Malicious damage (23 June 2007): 2 months imprisonment, 23 October 2008 to 22 December 2008.
  • Intimidation (23 June 2007): 1 year and 6 months imprisonment, with a non-parole period of 1 year and 2 months from 23 December 2008 to 22 February 2010, and a parole period of 4 months from 23 February 2010 to 22 June 2010.
  • Total effective sentence: 3 years from 23 June 2007 to 22 June 2010, with a total non-parole period of 2 years and 8 months. The applicant became eligible for release on 22 February 2010.

Key Takeaways

  • Where offences are capable of being dealt with in the Local Court, a sentencing court must take the lower summary maximum penalty into account, even when those offences have been committed up to the District Court for sentencing alongside indictable matters.
  • Failure to properly assess the objective seriousness of individual offences, particularly those originating from guilty pleas in a lower court, constitutes a sentencing error capable of grounding a successful appeal.
  • A sentencing judge's own remarks acknowledging that the offending "could have been worse" may undermine a sentence pitched at the higher end of the available range, as the Court of Criminal Appeal found that characterisation inconsistent with the three-year term for intimidation.
  • The Court of Criminal Appeal reduced the total effective sentence by nearly two years, reflecting both the individual errors and the need to ensure the aggregate sentence was proportionate to the overall criminality involved.
  • Offences brought to the District Court on a section 166 certificate (under the Criminal Procedure Act 1986) retain their summary character for sentencing purposes, and the relevant summary maximum penalties remain a material consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(1), 61, 195(1)(a), 545AB(1)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Ciaron McCullough v R [2009] NSWCCA 94
- McIntyre v R [2009] NSWCCA 305
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Abboud [2005] NSWCCA 251
- R v Palmer [2005] NSWCCA 349