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Court of Criminal Appeal 6 July 2011

Shaba v R

[2011] NSWCCA 154

Assault & violence
CRIMINAL LAW SENTENCE APPEAL APPEAL ALLOWED IN PART

Citation: Shaba v R [2011] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 6 July 2011
Judge(s): Bathurst CJ, Hall J, Harrison J

Background

The applicant was convicted after trial of malicious wounding with intent to inflict grievous bodily harm under s 33(1)(a) of the Crimes Act 1900, carrying a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. The offence arose from an incident in Fairfield on 25 February 2006, in which the applicant approached the victim and stabbed him with a concealed knife, causing a serious penetrating wound to the left kidney. The victim required two surgeries and was left with significantly reduced kidney function.

The applicant was sentenced by Nicholson DCJ in the District Court on 18 January 2010 to a non-parole period of 3 years commencing that day, with a balance of term of 3 years. Separately, in December 2007, the applicant had been sentenced by Berman AJ for an unrelated offence of accessory after the fact to murder, with that sentence backdated to the date of his arrest. The applicant had also been bail refused on the malicious wounding matter for a period of approximately six weeks during proceedings before Berman AJ.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge erred by not commencing the sentence at an earlier date to account for the bail-refused period; and second, that a lesser sentence was warranted having regard to assistance provided to authorities and the sentence received by a co-offender.

  • Whether the sentencing judge erred in concluding he "could not" commence the sentence before 18 January 2010, and whether the approximately six-week bail-refused period ought to have resulted in an earlier commencement date.
  • Whether a less severe sentence was warranted in light of the applicant's assistance to authorities.
  • Whether parity principles required any reduction in the applicant's sentence by reference to the sentence imposed on a co-offender, Steven David.

Decision

Ground 1: Commencement date (upheld)

Harrison J found that the sentencing judge had erred by concluding he was unable to backdate the sentence. The judge had proceeded on the mistaken view that the earlier sentence imposed by Berman AJ had entirely consumed the bail-refused period. In fact, a period of approximately one month and 13 days during which the applicant was bail refused had not been accounted for. The Court of Criminal Appeal held this was a legal error, and that the sentence should have commenced on 5 December 2009 rather than 18 January 2010.

Ground 2: Assistance to authorities and parity (dismissed)

Harrison J rejected the submission that a lesser sentence was required on account of assistance given to authorities. The reasoning of the sentencing judge on this point was not identified as erroneous, and no lesser sentence was found to be warranted in law.

On parity, the Court found that the applicant and co-offender Steven David were not sentenced for the same offence. David was sentenced by a different judge for accessory after the fact to murder and common assault, while the applicant was sentenced for malicious wounding inflicting grievous bodily harm. The differences in the degree of criminality were not favourable to the applicant in any event. The parity principle had no application across these distinct sentencing exercises.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • The sentence imposed by Nicholson DCJ on 18 January 2010 varied so as to commence on 5 December 2009 instead.
  • All other orders of Nicholson DCJ confirmed.
  • Consequentially, the non-parole period expires on 4 December 2012, with the first eligible parole date being 5 December 2012, and the additional term expiring on 4 December 2015.

Key Takeaways

  • A sentencing court errs in law if it proceeds on the mistaken belief that it has no power to backdate a sentence to account for a bail-refused period that has not been consumed by an earlier sentence.
  • Where a bail-refused period was genuinely unaccounted for in earlier sentencing, that period should be reflected in an earlier commencement date for the later sentence.
  • Parity principles governing sentence comparisons apply between co-offenders sentenced for the same or closely comparable offences. The Court of Criminal Appeal confirmed that parity arguments do not readily extend to sentences imposed by different judges for different offences, even if those offences arose from related events.
  • In dismissing the parity ground, the Court noted that differences in criminality between the applicant and the co-offender were not favourable to the applicant, reinforcing that parity arguments require close factual equivalence.
  • Assistance to authorities may be a mitigating factor at sentence, but the Court of Criminal Appeal will not interfere on that basis unless it is satisfied that the sentencing judge erred in the weight attributed to it.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v AB [2007] NSWSC 1517
- R v Close (1992) 31 NSWLR 743
- R v Deng [2007] NSWCCA 216
- R v Newman and Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
- R v Schodde [2003] NSWCCA 164; (2003) 142 A Crim R 307
- R v Shamouil and David [2009] NSWSC 24
- Wiggins v R [2010] NSWCCA 30