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Court of Criminal Appeal 25 February 2011

Ryan John Mackenzie v R

[2011] NSWCCA 21

Assault & violenceDomestic & family violence
SENTENCE APPEAL MANIFESTLY EXCESSIVE SENTENCING SAME EFFECTIVE RESULT.

Citation: Ryan John Mackenzie v R [2011] NSWCCA 21
Court: Court of Criminal Appeal, New South Wales
Date: 25 February 2011
Judges: Giles JA, R S Hulme J, Adams J

Background

The appellant pleaded guilty to four offences arising from a single course of conduct involving domestic violence against his partner and his mother. The offences included assault occasioning bodily harm, two counts of intimidation with intent to cause fear of physical or mental harm, and reckless wounding. The sentencing judge imposed a series of sentences, some of which ran concurrently and some of which were partially accumulated, producing an effective non-parole period of three years from February 2009 and a total term of four years and four months.

The appellant sought leave to appeal on two grounds. First, he argued that the sentencing judge had made an error of fact in relation to the assault count by attributing a punch to him that had actually been thrown by the victim. Second, he argued that the sentences imposed on both the assault count and the reckless wounding count were manifestly excessive.

  • Whether the sentencing judge's factual error (attributing a punch to the appellant that was in fact thrown by the victim) materially affected the assessment of objective seriousness for the assault count
  • Whether the sentences imposed on the assault count (CAN 1) and the reckless wounding count (CAN 3) were manifestly excessive
  • Whether the sentencing judge correctly applied the principle that each offence must be sentenced individually before questions of concurrency and accumulation are addressed
  • Whether the sentences for the intimidation offences should have been partially accumulated rather than subsumed entirely within the assault sentence

Decision

On the factual error ground, the Court accepted that the sentencing judge had incorrectly attributed one punch to the appellant that had in fact been thrown by the victim. However, the Court found that this error made no material difference. Even with that correction, the overall assault remained serious: the appellant had struck and kicked the victim multiple times, caused her bruising, swelling, and cuts, and done so in the context of a domestic relationship. The criminality and the bodily harm would not be materially altered by excluding the one misattributed punch.

On the question of manifest excess, the Court found that the sentence on CAN 1 (two years and six months for an assault carrying a five-year maximum with no standard non-parole period) exceeded the range available for the offence having regard to its objective seriousness. Similarly, the sentence on CAN 3 for reckless wounding was found to be beyond the range appropriate for an offence of its seriousness. The Court granted leave to appeal and allowed the appeal on these grounds.

The Court also identified an error in the structure of the sentencing. The sentencing judge had subsumed both intimidation sentences entirely within the assault sentence, failing to recognise the distinct criminality of those offences and the fact that they involved a second victim. The correct approach, drawn from Pearce v The Queen, requires the sentencing judge to fix an appropriate sentence for each individual offence first, and only then to consider questions of concurrency or accumulation. The Court held that all four sentences should be serially and partially accumulated to properly reflect the separate criminality of each offence and the involvement of two victims.

Despite those errors, the re-sentencing exercise produced the same effective outcome. The revised sentences were structured differently but yielded an identical non-parole period expiring 27 February 2012 and the same total term expiring 27 June 2013.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences on CAN 1 and CAN 3 quashed
  • Re-sentenced as follows, with sentences on CAN 2 and CAN 4 also varied:
  • CAN 1: Fixed term of 1 year and 8 months commencing 28 February 2009, expiring 27 October 2010
  • CAN 2: Fixed term of 1 year commencing 28 February 2010, expiring 27 February 2011
  • CAN 3: Fixed term of 1 year commencing 28 August 2010, expiring 27 August 2011
  • CAN 4: Non-parole period of 8 months commencing 28 June 2011, expiring 28 February 2012, with a balance of term of 1 year and 4 months expiring 27 June 2013
  • Effective sentence unchanged: eligible for parole 27 February 2012, total term expiring 27 June 2013

Key Takeaways

  • A factual error in the sentencing judge's findings does not necessarily warrant appellate intervention where correcting that error would not materially alter the assessment of objective seriousness or the criminality of the offender's overall conduct.
  • The Pearce v The Queen principle requires a sentencing court to determine an appropriate sentence for each individual offence before addressing concurrency and accumulation. Failing to do so is a sentencing error even if the effective result might coincidentally be the same.
  • Subsuming sentences for distinct offences entirely within the sentence for another offence may fail to reflect the separate criminality of those offences, particularly where they involve different victims or conduct of a qualitatively different character.
  • In re-sentencing after a successful appeal on manifest excess, the Court of Criminal Appeal may restructure how sentences are accumulated to cure the methodological error, while arriving at the same effective custodial term where that term is itself appropriate overall.
  • The expression of objective seriousness as falling within the "middle range" has been noted, in cases including those cited here, as inappropriate language for offences that do not attract a standard non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59(1) (assault occasioning bodily harm), s 35(4) (reckless wounding)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) (intimidation)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Sivell v R [2009] NSWCCA 286
- Giles v Director of Public Prosecutions [2009] NSWCCA 308; (2009) 198 A Crim R 395
- Georgeopoulos v R [2010] NSWCCA 246
- R v McEvoy [2010] NSWCCA 110
- R v Hunter [2010] NSWCCA 330
- Black v R [2010] NSWCCA 321