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Court of Criminal Appeal 22 March 2011

CW v Regina

[2011] NSWCCA 45

Assault & violenceHomicide
CRIMINAL LAW CONVICTION APPEAL UNREASONABLE VERDICT VERDICT NOT UNREASONABLE SENTENCE APPEAL SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: CW v Regina [2011] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 22 March 2011
Judge(s): Whealy JA; Hidden J; Johnson J

Background

The appellant, CW, was tried by jury for the murder of a man at Woolooware in November 2007. The Crown alleged that CW participated in a spontaneous joint criminal enterprise with two co-offenders, DGP and PB, during which the deceased was punched and kicked, sustaining fatal blunt force head injuries. The co-offenders had each pleaded guilty to manslaughter before the trial commenced and were sentenced separately.

The jury acquitted CW of murder but returned a verdict of guilty on the alternative count of manslaughter. At trial, CW gave evidence denying any participation in the assault and claiming he had attempted to restrain the co-offenders.

Hall J sentenced CW to nine years imprisonment with a non-parole period of six years, commencing from 24 November 2007. By comparison, DGP received a non-parole period of five years and PB received three years. CW appealed both the conviction and the sentence.

  • Whether the jury's verdict of guilty on the manslaughter count was unreasonable and unsupported by the evidence
  • Whether the appellant was entitled to a justifiable sense of grievance arising from the more lenient sentences imposed on the co-offenders
  • Whether the total sentence imposed was manifestly excessive, having regard in particular to the appellant's youth as a juvenile offender

Decision

Conviction appeal: The Court of Criminal Appeal rejected the argument that the verdict was unreasonable. Several Crown witnesses gave evidence placing CW at the scene and describing his active participation. One witness recalled CW making a contemptuous remark to the deceased while he lay on the ground. Another described witnessing multiple kicks delivered to the deceased's neck and head area, hearing a loud crack on the final kick, and then seeing a person in similar clothing lean over the victim. The Court found this and other evidence was sufficient to satisfy a jury of CW's involvement, and the jury was entitled to reject CW's account that he was attempting to stop the assault.

Sentence parity: The Court acknowledged the disparity between CW's sentence and those imposed on the co-offenders, but concluded that CW had no justifiable sense of grievance. The co-offenders received discounts of 20 percent for early guilty pleas, which CW did not receive. More significantly, the sentencing judge found that CW's role was more serious than that of PB and involved kicking the deceased with force described as severe and ferocious. The factual basis for each sentence was materially different, making direct comparison of limited utility.

Manifest excess: The Court described the sentence as perhaps a high one for a juvenile offender but concluded it was not impermissibly so. The sentencing judge had correctly identified and applied applicable principles for sentencing juvenile offenders, found special circumstances justifying a variation of the standard non-parole to parole ratio, and appropriately weighed CW's subjective circumstances. The Court noted the judge's characterisation of the offence as displaying callousness and cowardice, and his recognition that general deterrence was a significant factor given the unprovoked nature of the group attack on an innocent person.

Orders Made

  • Conviction appeal dismissed
  • Leave to appeal against sentence granted
  • Sentence appeal dismissed

Key Takeaways

  • Sufficient evidence existed to support the manslaughter verdict where multiple Crown witnesses placed the appellant at the scene and described his active participation, notwithstanding his denial at trial.
  • A sentencing disparity between co-offenders does not automatically give rise to a justifiable sense of grievance where the offenders' roles, culpability, and procedural history differ materially, including through the availability of guilty plea discounts.
  • Where a juvenile offender is convicted of a serious manslaughter involving a group attack, the sentencing court may properly give significant weight to general deterrence and the objective gravity of the offending.
  • The Court of Criminal Appeal confirmed that identifying the appropriate non-parole to parole ratio in cases of special circumstances remains a matter for the sentencing judge's discretion in structuring the sentence.
  • In dismissing both grounds of the sentence appeal, the Court reiterated that a severe sentence for a young offender is not manifestly excessive where the offence involved a high level of unprovoked violence and the sentencing judge correctly applied applicable principles.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 19(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- Taber v R; Styman v R (2007) 170 A Crim R 427
- R v Forbes (2005) 160 A Crim R 1
- R v Green [1999] NSWCCA 97
- R v Vongsouvanh [2004] NSWCCA 158
- R v Alexander (1994) 78 A Crim R 141
- R v Maguire (Unreported, NSW Court of Criminal Appeal, 30 August 1995)
- R v Troja (Unreported, NSW Court of Criminal Appeal, 16 July 1991)
- R v Simpson (2001) 126 A Crim R 525