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Court of Criminal Appeal 8 December 2010

COUCH-CLARKE v REGINA; REGINA v COUCH-CLARKE

[2010] NSWCCA 288

Assault & violence
CRIMINAL LAW PARTICULAR OFFENCES ASSAULT OCCASIONING ACTUAL BODILY HARM CRIMINAL LAW APPEAL AGAINST SENTENCE CROSS

Citation: COUCH-CLARKE v REGINA; REGINA v COUCH-CLARKE [2010] NSWCCA 288
Court: Court of Criminal Appeal, New South Wales
Date: 8 December 2010
Judge(s): Macfarlan JA, Simpson J, Hall J (Hall J delivered the principal judgment; Macfarlan JA and Simpson J agreed)

Background

The offender pleaded guilty at the first available opportunity to five offences of violence arising from attacks on four separate victims. The offences included entering a building with intent to assault, assault occasioning actual bodily harm, two counts of aggravated assault with intent to rob, and aggravated robbery. The most serious offence involved a victim named Mr Ward, who suffered the worst injuries of all four victims and was the subject of Count 5, the aggravated robbery charge. The offender received a 25 per cent discount on sentence for his early pleas of guilty.

The District Court at Gosford sentenced the offender on 26 August 2009. The effective sentence was 4 years and 6 months imprisonment with a non-parole period of 3 years and 6 months. The sentencing judge attached the most significant head sentence to Count 2 (assault occasioning actual bodily harm), taking Form 1 matters into account for that count, and made a finding of special circumstances to extend the balance of term beyond the statutory default.

The offender sought leave to appeal against the sentence imposed for Count 2. The Crown filed a cross-appeal in respect of the remaining four counts, not to seek a higher overall sentence, but to preserve its procedural position and ensure the Court of Criminal Appeal could consider all offences together in any re-sentencing exercise.

  • Whether the sentencing judge applied the wrong maximum penalty to Count 2 (assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900)
  • Whether the sentencing judge wrongly took into account the Form 1 matters in sentencing for Count 2, rather than for the most serious offence
  • Whether the sentencing judge failed to give proper effect to a finding of special circumstances in structuring the non-parole period and balance of term
  • Whether the sentence imposed for Count 2 was manifestly excessive
  • Whether, given the Crown's cross-appeal, the Court should re-sentence the offender across all five counts to reflect overall criminality

Decision

Hall J identified error in the sentence imposed for Count 2. The sentencing judge had applied the wrong maximum penalty to the assault occasioning actual bodily harm offence, which constituted a specific error warranting intervention under s 5(d) of the Criminal Appeal Act 1912. This error alone was sufficient to set aside the sentence for that count.

The Court also found error in the sentencing judge's decision to attach the Form 1 matters to Count 2. Form 1 matters should generally be taken into account on the most serious offence on the indictment. Count 2 (assault occasioning actual bodily harm, maximum 5 years) was not the most serious charge. Count 5 (aggravated robbery, maximum 20 years) was plainly the gravest offence and should have been the anchor for Form 1 consideration.

On the question of special circumstances, the Court declined to make such a finding on re-sentencing. A finding of special circumstances allows a sentencing court to extend the balance of term beyond the statutory ratio of one-third of the total sentence, increasing supervision after release on parole. The Court found no sufficient evidentiary basis to support the original finding, noting in particular that good prospects of rehabilitation had not been established on the facts.

Because the Crown's cross-appeal was on foot, the Court was not confined to correcting the error in Count 2 in isolation. It re-sentenced the offender across all five counts, restructuring the sentences so that Count 5 carried the principal custodial term with a non-parole period, while the remaining counts received fixed terms. The overall aggregate sentence and non-parole period remained unchanged from those originally imposed.

Orders Made

  • The sentences imposed by the District Court on 26 August 2009 were set aside.
  • The offender was re-sentenced on all five counts as follows:
  • Count 1 (enter building with intent to assault, s 114(1)(d)): fixed term of 9 months, commencing 26 August 2009, expiring 25 May 2010.
  • Count 2 (assault occasioning actual bodily harm, s 59(1)): fixed term of 12 months, commencing 26 August 2009, expiring 25 August 2010.
  • Count 3 (aggravated assault with intent to rob, s 95(1)): fixed term of 6 months, commencing 26 February 2010, expiring 25 August 2010.
  • Count 4 (aggravated assault with intent to rob, s 95(1)): fixed term of 6 months, commencing 26 August 2009, expiring 25 February 2010.
  • Count 5 (aggravated robbery, s 95(1)): non-parole period of 2 years and 6 months commencing 26 August 2010, expiring 25 February 2013; balance of term of 12 months commencing 26 February 2013, expiring 25 February 2014.
  • Overall aggregate sentence: 4 years and 6 months imprisonment.
  • Overall non-parole period: 3 years and 6 months.
  • First eligible date for parole: 25 February 2013.

Key Takeaways

  • Applying the wrong maximum penalty when sentencing for a particular offence constitutes a specific error of law under s 5(d) of the Criminal Appeal Act 1912, justifying intervention by the Court of Criminal Appeal.
  • Form 1 matters should ordinarily be taken into account in sentencing for the most serious offence on the indictment. Attaching them to a lesser offence, where a more serious charge exists, is an error in the exercise of sentencing discretion.
  • A finding of special circumstances, which extends the post-release supervision period beyond the statutory default, requires an evidentiary foundation. Where that foundation is absent, such a finding will not be sustained on appeal.
  • The Court of Criminal Appeal confirmed that a Crown cross-appeal, even one not seeking a higher overall sentence, serves a procedural function: it enables the appellate court to re-sentence across all counts and consider the totality of the offender's criminality, rather than correcting one count in isolation.
  • In restructuring the sentences on re-sentencing, the Court placed the principal term with a non-parole period on Count 5, the most serious offence, while the overall aggregate sentence and non-parole period remained the same as those originally imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 95(1), 114(1)(d)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(3), 7(1A)

Cases:
- Bingul v Regina [2009] NSWCCA 239
- Markarian v The Queen (2005) 79 ALJR 1041
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Bottin [2005] NSWCCA 254
- Regina v Carter [2003] NSWCCA 243
- Regina v Ferenc [2009] NSWCCA 126
- Regina v Henry (1999) 46 NSWLR 346
- Regina v Hitchins (1958) 75 WN 75
- Regina v Janceski [2005] NSWCCA 288
- Regina v Jarrold [2010] NSWCCA 69
- Regina v Phan [2007] NSWCCA 42
- Regina v Simpson (1992) 61 A Crim R 58
- Regina v Smith [2005] NSWCCA 339
- Smith v Regina [2007] NSWCA 138