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Court of Criminal Appeal 25 February 2011

R v Richard Fojt

[2011] NSWCCA 20

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL BY CROWN RECKLESS WOUNDING RANGE

Citation: R v Richard Fojt [2011] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 25 February 2011
Judges: Simpson J, Blanch J, Garling J (unanimous)

Background

The respondent pleaded guilty in the District Court to two offences arising from a violent knife attack on the evening of 22 September 2009. He broke into the home of a former close friend and attacked the friend and his partner with a 30cm kitchen knife while they were asleep on a mattress. The victims sustained significant stab and slash wounds requiring surgery and hospitalisation.

The attack followed the respondent's discovery that his former girlfriend had begun a relationship with the close friend. On the day of the offences, multiple people, including the respondent's own mother, tried repeatedly to stop him from proceeding to the victims' home. He pushed past them each time, armed himself with a kitchen knife, and continued despite a brief moment of apparent hesitation outside the house.

The District Court sentenced the respondent to 4 years and 6 months imprisonment (non-parole period of 2 years, 8 months and 12 days) for the aggravated break, enter and commit serious indictable offence, and a concurrent term of 2 years and 3 months for reckless wounding. The Crown appealed both sentences as manifestly inadequate, though the Court of Criminal Appeal ultimately addressed only the principal offence.

  • Whether the sentencing judge failed to properly determine the objective seriousness of the offences.
  • Whether the sentencing judge erred in placing the objective seriousness below the mid-range.
  • Whether the principles governing accumulation or concurrency of sentences were correctly applied.
  • Whether the overall sentence was manifestly inadequate.

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding the sentence imposed on the principal offence was manifestly inadequate. Garling J, with whom Simpson J and Blanch J agreed, concluded that the sentencing judge had erred in assessing the objective seriousness of the aggravated break, enter and wound offence as below mid-range. Given the circumstances, including the premeditated arming, the persistence in the face of multiple attempts to intervene, the attack on sleeping victims in their home, and the separate wounding of a second victim, the Court found that the offence should have been assessed as above mid-range.

The Court applied the standard non-parole period of 7 years for the principal offence as a guidepost or yardstick, noting this was consistent with the approach confirmed in relevant appellate authority. After allowing a 25 per cent discount for the utilitarian value of the early guilty plea, the Court resentenced the respondent on the principal offence to a total term of 5 years and 6 months, with a non-parole period of 3 years and 9 months.

The Court confirmed that the sentencing judge's finding of special circumstances was not challenged by the Crown and remained valid. The respondent's relative youth and clear need for post-release guidance and supervision supported a departure from the standard ratio between non-parole period and total sentence. No separate order was required on the reckless wounding count, as that sentence was subsumed within the revised principal sentence and the concurrent structure was not in error.

Orders Made

  • Appeal allowed.
  • The sentence imposed by the District Court on 9 July 2010 was set aside.
  • In substitution, a non-parole period of 3 years and 9 months was imposed, commencing 22 September 2009.
  • A balance of term of 1 year and 9 months was imposed, with the full sentence expiring 21 March 2015.
  • The first eligible release date was set at 21 June 2013.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a standard non-parole period functions as a guidepost or yardstick when assessing whether a sentence for a serious offence is manifestly inadequate, particularly where the offender has pleaded guilty.
  • Objective seriousness must be assessed against the full range of circumstances, including the degree of premeditation, the vulnerability of the victims, the persistence of the offending in the face of repeated attempts at intervention, and the harm caused to multiple victims.
  • A sentencing court's failure to accurately identify the level of objective seriousness of an offence can constitute a sentencing error sufficient to warrant appellate intervention, even where subjective features and a plea of guilty have been properly taken into account.
  • Finding of special circumstances based on the offender's youth and rehabilitative needs was not disturbed, demonstrating that such findings can survive a successful Crown appeal where the Crown does not challenge them.
  • Where a principal sentence is quashed on a Crown appeal, a concurrent lesser sentence need not be separately revisited if it falls within the revised principal term and the concurrent structure itself disclosed no error.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 35(4), 112(3)

Cases:
- Cahyadi v R [2007] NSWCCA 1
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Mirza v R [2007] NSWCCA 248
- Mulato v R [2006] NSWCCA 282
- R v Knight; R v Biuvanua [2007] NSWCCA 283
- R v McEvoy [2010] NSWCCA 110
- R v MMK (2006) 164 ACrimR 481
- R v Wilson [2005] NSWCCA 219