Citation: Melbom v Regina [2011] NSWCCA 22
Court: Court of Criminal Appeal, New South Wales
Date: 28 February 2011
Judges: Macfarlan JA, Simpson J, Hall J
Background
The appellant pleaded guilty in the Local Court to nine offences committed between 23 May and 12 June 2008, and was committed to the District Court for sentence. The offences fell into three groups and included possessing and discharging a loaded firearm endangering life, discharging a firearm at a dwelling house, discharging a firearm with intent to cause grievous bodily harm, aggravated assault with intent to take a motor vehicle, using a carriage service to make threats, possessing a shortened firearm, possessing an unauthorised firearm, and a specially aggravated break and enter with robbery.
The most serious single offence arose from the discharge of a firearm that resulted in the amputation of a victim's leg. The offences were committed while the appellant was on parole. The District Court imposed an aggregate sentence of 22 years' imprisonment with a non-parole period of 16 years and 6 months.
The appellant sought leave to appeal, out of time, on the grounds that the sentencing judge had misapplied the totality principle and that both the individual sentence for the firearm offence under s 33A(1)(a) of the Crimes Act 1900 and the total aggregate sentence were manifestly excessive. The Crown opposed the appeal on all grounds.
Legal Issues
- Whether the sentencing judge misapplied the totality principle in structuring concurrent and cumulative sentences across nine offences
- Whether the sentence imposed for the offence of discharging a firearm with intent to cause grievous bodily harm (s 33A(1)(a), Crimes Act 1900) was manifestly excessive
- Whether the overall aggregate sentence of 22 years was manifestly excessive
- Whether the sentencing judge erroneously took into account uncharged conduct (threats to injure) when sentencing for the carriage service threats offence
Decision
The Court granted the extension of time and leave to appeal, but dismissed the appeal on all grounds. Hall J (with whom Macfarlan JA and Simpson J agreed) found no error in the sentencing judge's application of the totality principle. Although all nine offences were committed over a relatively short period, the Court held they could not be treated as a single enterprise, as each was a distinct and objectively serious offence warranting individual consideration.
On the question of manifest excess, the Court found that the sentence for the s 33A(1)(a) offence reflected the exceptional gravity of that crime, which had resulted in the permanent and severe injury of amputation to the victim's leg. The Form 1 matters considered alongside that offence were minor and there was no basis to infer they had distorted the sentence upward.
Regarding the carriage service threats offence, the Court rejected the argument that the sentencing judge had impermissibly taken into account threats to injure (which were not charged under the relevant provision) alongside the threat to kill. The Court found that the sentencing judge's reference to the agreed facts did not indicate that the uncharged threats carried any particular weight in the sentencing exercise.
Taking the sentences individually and in combination, Hall J concluded that the aggregate fell within the range of a sound exercise of sentencing discretion, and that no lesser sentences were warranted in law under s 6(3) of the Criminal Appeal Act 1912.
Orders Made
- Extension of time to apply for leave to appeal against sentence granted
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that offences committed on the same day or within a short period do not automatically constitute a single enterprise for the purposes of sentencing; each offence must be assessed on its own objective seriousness.
- Applying the totality principle does not require a sentencing judge to treat a cluster of distinct serious offences as one transaction, particularly where each offence is independently grave and involves different victims or conduct.
- Where a sentence for a grave offence is within the available range, the presence of minor Form 1 matters considered alongside it will not, without more, demonstrate that the sentence was inflated beyond what the principal offence warranted.
- No error was established in relation to the carriage service threats offence merely because the agreed facts referred to additional threatening conduct; the Court will not infer improper reliance on uncharged matters without positive evidence that the sentencing judge gave them weight.
- In dismissing the appeal, the Court reaffirmed that an aggregate sentence, though very substantial, is not manifestly excessive where individual sentences are each soundly structured and the overall total reflects the cumulative criminality of multiple serious offences committed while on parole.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33A(1)(a), 93G(1)(a)(ii), 93GA(1), 109(1), 112(3), 154C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Code Act 1995 (Cth), s 474.15(1)
- Firearms Act 1996 (NSW), ss 7A(1), 62(1)(b)
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Cahyadi v Regina (2007) 168 A Crim R 41
- Johnson v The Queen (2004) 78 ALJR 616
- Nguyen v Regina [2007] NSWCCA 14
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- Regina v De Simoni (1981) 147 CLR 383
- Regina v Holder (1983) 3 NSWLR 245
- Regina v Merrin [2007] NSWCCA 255
- Regina v MMK (2006) A Crim R 481
- Regina v Saleib [2005] NSWCCA 85
- Regina v Way (2004) 60 NSWLR 168
- Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55
- Regina v Wilson [2005] NSWCCA 219
- Regina v XX [2009] NSWCCA 115
- Vaovosa v Regina [2007] NSWCCA 253