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Court of Criminal Appeal 2 March 2010

ZAMMIT, Jared Mark v R

[2010] NSWCCA 29

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING WHETHER INCORRECT FINDING OF FACTS WHETHER SENTENCE MANIFESTLY INADEQUATE.

Citation: ZAMMIT, Jared Mark v R [2010] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 2 March 2010
Judge(s): McClellan CJ at CL, Howie J, Harrison J

Background

The applicant pleaded guilty in the Local Court to aggravated break and enter with assault occasioning actual bodily harm, contrary to s 112(2) of the Crimes Act 1900. The offence carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of 5 years. The applicant, aged 20 at the time, accompanied a co-offender who had recently separated from his partner. The pair forced entry into a dwelling house and the applicant assaulted the victim, punching him about the head.

The District Court sentenced the applicant to 6 years' imprisonment comprising a 3-year non-parole period commencing 19 June 2008. The applicant sought leave to appeal, arguing the sentencing judge made a factual error, failed to give adequate weight to his youth, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge incorrectly found that the co-offender had told the applicant of his animosity toward the victim and the other occupant before the offence
  • Whether the judge gave adequate weight to the applicant's youth as a mitigating factor
  • Whether the total sentence of 6 years was manifestly excessive having regard to the objective seriousness of the offence and the applicant's subjective circumstances

Decision

On the first ground, the Court of Criminal Appeal found that the sentencing judge had made an incorrect factual finding. The Crown's statement of facts did not support a conclusion that the co-offender had specifically informed the applicant of his animosity toward the victim before the offence. That finding improperly elevated the applicant's moral culpability. However, the Court noted the applicant nonetheless knew a child was present on the premises, which remained a relevant aggravating consideration.

On youth, Howie J accepted that the sentencing judge gave insufficient weight to the applicant's age. The applicant was 20 at the time, had no significant prior violent offending, came from a troubled background involving abuse and early drug use, and had a co-offender who was clearly the principal in the enterprise.

On manifest excess, the Court found that a head sentence of 6 years, implying a starting point of around 8 years before the 25 per cent guilty plea discount, was excessive given the circumstances. While the offence fell within the mid-range of objective seriousness, it was at the lower end of that range. The appropriate starting sentence was determined to be 6.5 years, reduced by 25 per cent for the early guilty plea. The Court also confirmed special circumstances justifying a non-parole period of 50 per cent of the total term, supported by evidence of rehabilitation efforts undertaken in custody.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • Sentences imposed in the District Court quashed
  • In lieu, the applicant sentenced to imprisonment comprising a non-parole period of 2 years and 6 months and a balance of term of 2 years and 6 months, commencing 19 June 2008
  • Applicant eligible for release to parole on 18 December 2010

Key Takeaways

  • An incorrect factual finding that elevates a defendant's moral culpability constitutes a sentencing error capable of vitiating the sentence on appeal, even where the statement of facts was not formally agreed between the parties.
  • The Court of Criminal Appeal confirmed that a sentencing court must give genuine and adequate weight to youth as a mitigating factor, particularly where there is no prior history of violence and the offender's background discloses a pattern of disadvantage.
  • Where a co-offender is clearly the principal in the enterprise, that relative culpability is a material factor in calibrating the appropriate sentence for a secondary participant.
  • Under s 112(2) of the Crimes Act 1900, the Court confirmed that offences involving forced entry into a dwelling with associated violence are serious, but the sentence must still be proportionate to where within the mid-range the particular offending falls.
  • Affidavit evidence of rehabilitation undertaken during custody supported a finding of special circumstances, justifying a departure from the standard ratio of non-parole to total term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)

Cases:
- R v Falls [2004] NSWCCA 335
- R v Millar [2005] NSWCCA 202
- R v Price [2005] NSWCCA 285
- Ngati v R [2008] NSWCCA 3
- Mulato v R [2006] NSWCCA 282