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Court of Criminal Appeal 16 March 2011

GREER v R

[2011] NSWCCA 40

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE AFFRAY YOUNG OFFENDER GUILTY PLEA MATERIAL ERROR

Citation: GREER v R [2011] NSWCCA 40
Court: NSW Court of Criminal Appeal
Date: 16 March 2011
Judge(s): McClellan CJ at CL, Adams J, Buddin J

Background

The appellant was one of a group of at least seven men involved in a violent late-night attack on three victims outside a city convenience store in December 2008. The group surrounded the victims, inflicting serious and permanent injuries on two of them. The attack involved repeated punching and kicking over approximately three minutes, and the appellant was among those who pursued the victims toward the store entrance.

The appellant pleaded guilty to affray under s 93C(1) of the Crimes Act 1900, which carries a maximum sentence of ten years imprisonment. The District Court imposed a non-parole period of two years and six months and an additional term of one year and three months, to commence after the appellant had served part of an existing sentence for a separate violent offence.

The appellant sought leave to appeal on the basis that the sentencing judge had made a material error in calculating the guilty plea discount, and that a period of pre-sentence custody had been overlooked.

  • Whether the sentencing judge failed to apply the full 25% discount on the head sentence required under s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008.
  • Whether the sentencing judge erred in overlooking approximately eight weeks of pre-sentence custody.
  • Whether the sentence, as structured, was appropriate having regard to totality, accumulation on the existing sentence, and the special circumstances said to warrant a departure from the standard non-parole to balance-of-term ratio.

Decision

The Court identified a material error in the sentence below: the sentencing judge had not applied the full 25% discount to the head sentence as mandated by s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008. That statutory requirement is not discretionary, and the failure to apply it required the sentence to be quashed and re-determined.

The Court also confirmed that the eight weeks of pre-sentence custody had been overlooked and agreed that this needed to be corrected regardless of the appeal outcome. Taking a starting point of four years for the head sentence, the Court applied the mandatory 25% discount to produce a term of three years, then adjusted the commencement date to account for the pre-sentence custody period.

Adams J found that special circumstances existed, arising from the appellant's youth and the need to support his rehabilitation through a lengthier supervisory period. Accordingly, the standard statutory ratio between the non-parole period and the balance of term was departed from, with equal periods of one year and six months allocated to each. The Court also found that the sentence should remain wholly cumulative on the existing sentence, subject to the commencement date adjustment, concluding that the overall outcome did not offend the totality principle.

The Court noted the offence demanded a significant element of general deterrence. The attack was characterised as cowardly and seriously violent, involving a group acting together against three victims, two of whom suffered permanent injuries, and the offence was committed in a public place while the appellant was on bail for an earlier violent offence.

Orders Made

  • Leave to appeal against sentence granted.
  • Sentence of the District Court quashed.
  • Non-parole period substituted, commencing 4 June 2011 and expiring 3 December 2012, with a balance of term of one year and six months commencing 4 December 2012 and expiring 3 June 2014.

Key Takeaways

  • Under s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008, a 25% discount on the head sentence for an early guilty plea is mandatory, not discretionary. Failure to apply the full discount constitutes a material error warranting intervention on appeal.
  • The Court of Criminal Appeal confirmed that affray, particularly when committed in public by a group against multiple victims causing serious injury, carries a significant requirement for general deterrence in sentencing.
  • Special circumstances justifying departure from the standard non-parole to balance-of-term ratio may arise from a young offender's need for extended post-release supervision and rehabilitation support.
  • Where a sentence is accumulated on an existing sentence, the totality principle requires the court to ensure the combined effective period does not exceed the overall criminality involved. The principle recognises that the severity of punishment is not a linear progression.
  • Pre-sentence custody must be accurately calculated and credited. An oversight of eight weeks in this case was treated as requiring correction irrespective of the appeal outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 93C(1) (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 12
- Criminal Case Conferencing Trial Act 2008 (NSW) s 17(1)(a)

Cases:
- Do v R [2010] NSWCCA 182
- Lowe v The Queen (1984) 154 CLR 606
- R v Eleter [2003] NSWCCA 130
- R v Fajka [2004] NSWCCA 166
- R v Huynh [2000] NSWCCA 18
- Stevens v Regina [2007] NSWCCA 152
- The Queen v De Simoni (1981) 147 CLR 383
- Tran v R [2010] NSWCCA 183