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10
Court of Criminal Appeal 7 May 2010

R v Rayment

[2010] NSWCCA 85

Also reported as 200 A Crim R 48
Assault & violence
CRIMINAL LAW SENTENCE CROWN APPEAL WHETHER ERROR IN EXERCISE OF S.11 POWER HELD (BY MAJORITY) ERROR NOT DISCLOSED

Citation: R v Rayment [2010] NSWCCA 85
Court: New South Wales Court of Criminal Appeal
Date: 7 May 2010
Judge(s): Tobias JA; Johnson J; Rothman J

Background

The respondent was convicted in the District Court of two serious offences: reckless wounding and aggravated detaining for advantage. The offences involved unprovoked violence, including the throwing of a glass, punching, and conduct described by the Crown as amounting to cruelty or torture.

At the sentencing hearing before Coorey DCJ, the respondent applied for an adjournment of the imposition of final sentence under section 11 of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge adjourned proceedings until December 2010 to assess the respondent's ongoing rehabilitation at the ONE80TC residential program, a drug and alcohol free environment the respondent had been in since May 2008. The Crown appealed that decision.

The Crown argued that the sentencing judge erred in exercising the power to adjourn under section 11, contending that the conditions required to engage that provision had not been met given the objective seriousness of the offences and the state of the respondent's rehabilitation at the time of sentencing.

  • Whether the sentencing judge erred in adjourning the imposition of final sentence under section 11 of the Crimes (Sentencing Procedure) Act 1999.
  • Which subsection of section 11(1) was engaged: paragraph (a) (assessing prospects of rehabilitation) or paragraph (b) (allowing the offender to demonstrate that rehabilitation has taken place).
  • Whether the evidence of rehabilitation was sufficient to support the adjournment order.
  • Whether any identifiable error in the exercise of the sentencing discretion warranted appellate intervention.

Decision

Tobias JA provided the deciding vote, with Johnson J and Rothman J reaching opposite conclusions. Tobias JA observed that the sentencing judge's final order was expressed in terms more consistent with section 11(1)(a), but concluded that the application had been properly made under section 11(1)(b). His Honour found it reasonably apparent from the sentencing judge's remarks that section 11(1)(b) was not being ignored, even though it was not expressly cited.

On the meaning of section 11(1)(b), Tobias JA rejected the proposition that "has taken place" means rehabilitation has been completed. The provision requires the offender to have an opportunity to affirmatively demonstrate that rehabilitation has in fact occurred, or is at least well on the way. The evidence from the program's pastor indicated that the respondent had made outstanding progress, but that his rehabilitation had not yet reached a stage where it could be said with confidence that a custodial environment would not cause significant regression.

Rothman J, agreeing with dismissal of the appeal, found no identifiable error in the sentencing judge's exercise of discretion. Applying the principles in House v The King, Rothman J emphasised that the mere fact the Court might have exercised the discretion differently was not a sufficient basis to intervene. The adjournment fell within the available discretionary options given the quite exceptional rehabilitation circumstances.

Johnson J dissented, concluding that the sentencing judge had erred in the exercise of the section 11 power, and that the objective seriousness of the offences and the state of the evidence warranted intervention. The majority nonetheless dismissed the Crown appeal.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • A majority of the Court of Criminal Appeal held that no error was established in the District Court's decision to adjourn sentencing proceedings under section 11 of the Crimes (Sentencing Procedure) Act 1999 to allow the offender to demonstrate progress in rehabilitation.
  • Under section 11(1)(b), the phrase "has taken place" does not require that rehabilitation be completed. It requires the offender to have the opportunity to affirmatively demonstrate that rehabilitation has in fact occurred, or is at least well advanced.
  • Where a sentencing judge does not expressly identify which paragraph of section 11(1) is being engaged, an appellate court may nevertheless infer from the reasons and orders taken as a whole which provision was being applied.
  • In dismissing the Crown appeal, the majority applied the well-established principle from House v The King (1936) 55 CLR 499 that appellate intervention in the exercise of a sentencing discretion requires an identifiable error, not merely a different view of how discretion should be exercised.
  • Sympathy for an offender is not a proper basis for the exercise of sentencing discretion; equally, the final sentencing hearing remains the appropriate occasion for the full application of sentencing principles.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Criminal Procedure Act 1986 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- R v Trindall [2002] NSWCCA 364; 133 A Crim R 119
- R v Palu [2002] NSWCCA 381; 134 A Crim R 174
- Sayin v R [2008] NSWCCA 307
- R v Miria [2009] NSWCCA 68
- Spooner v R [2009] NSWCCA 247
- R v Elmir [2003] NSWCCA 192
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Griffiths v R [1977] HCA 44; (1977) 137 CLR 293
- R v Dodd [1991] 57 A Crim R 349
- R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94