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Court of Criminal Appeal 6 June 2012

ISAAKO v R

[2012] NSWCCA 115

Assault & violenceTheft & property
CRIME APPEAL AGAINST SENTENCE

Citation: Isaako v R [2012] NSWCCA 115
Court: NSW Court of Criminal Appeal
Date: 6 June 2012
Judges: Allsop P, Hoeben JA, Beech-Jones J

Background

The applicant pleaded guilty to two separate violent robbery offences committed in August 2008. The first, under s 98 of the Crimes Act 1900, arose from an extremely serious predatory attack on a pedestrian near Coogee in the early hours of 9 August 2008, carried out with a co-offender after both had agreed to "roll someone." The victim sustained catastrophic injuries and remains permanently dependent on others. The second offence, under s 95 of the Crimes Act, was a robbery involving actual bodily harm committed on 18 August 2008, when the applicant struck an international student from behind near Riverwood Railway Station, rendered him unconscious, and stole his belongings.

At sentencing in the District Court, the applicant received 15 years for the s 98 offence (non-parole period of 10 years) and an accumulated 8 years for the s 95 offence (non-parole period of 6 years), producing a total non-parole period of 14 years with a balance of term of 5 years.

The applicant sought leave to appeal the sentence for the s 95 offence, arguing that the sentencing judge erred in determining the starting date for that sentence and that the combined effect of the two sentences failed to comply with the totality principle.

  • Whether the sentencing judge applied the correct standard in assessing the objective seriousness of the s 95 offence, having regard to Muldrock v R [2011] HCA 39.
  • Whether the sentencing judge erred in failing to give sufficient weight to the totality principle when fixing the commencement date for the s 95 sentence, resulting in a combined non-parole period that was disproportionate to the overall criminality.
  • Whether any identified error required the Court of Criminal Appeal to re-sentence the applicant for the s 95 offence.

Decision

The Court granted leave to appeal and allowed the appeal in part, confining the successful ground to the totality principle argument. Beech-Jones J (with whom Allsop P and Hoeben JA agreed) found that the sentencing judge had not adequately reflected the totality principle when fixing the start date of the s 95 sentence, producing a combined non-parole period of 14 years that was excessive when viewed against the applicant's overall criminality.

On re-sentencing for the s 95 offence, the Court assessed the appropriate overall sentence at 8 years with a 4-year non-parole period. This reflected a pre-discount sentence of between 10 and 11 years, to which a discount was applied for the guilty plea, together with recognition of the need to protect the public, the applicant's subjective circumstances (including his youth), and his lack of prior custodial history.

The Court then independently fixed the commencement date to achieve a total non-parole period of 12 years across both sentences. The applicant, who was 19 at the time of the offences, would therefore spend at least the years from age 19 to age 31 in full-time custody. The sentence for the s 98 offence was left undisturbed.

The Court noted that the guideline case of R v Henry provided limited assistance because criteria in that case contemplating "limited, if any, actual violence" were simply inapplicable: serious actual violence was the applicant's consistent method of operating.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • The sentence imposed by the District Court on 26 May 2010 for the s 95 offence was set aside and replaced with a non-parole period of 4 years commencing 16 September 2016 and expiring 15 September 2020, with a balance of term of 4 years commencing 16 September 2020 and expiring 15 September 2024.
  • The sentence for the s 98 offence was left undisturbed, producing a combined non-parole period of 12 years (16 September 2008 to 15 September 2020) with a balance of term of 4 years (16 September 2020 to 15 September 2024).

Key Takeaways

  • The totality principle requires a sentencing court to assess whether the combined effect of accumulated sentences remains proportionate to the offender's overall criminality, not merely to add individual sentences together mechanically.
  • Where a sentencing judge fails to give adequate weight to totality when fixing the commencement date of a cumulative sentence, that constitutes a sentencing error susceptible to correction on appeal.
  • In re-sentencing for the s 95 offence, the Court of Criminal Appeal independently fixed a commencement date that produced a total non-parole period of 12 years, reduced from 14 years, acknowledging the applicant's youth and absence of prior custodial history as mitigating factors alongside the serious objective gravity of both offences.
  • The guideline in R v Henry relating to robbery offences was of limited utility where the offender's conduct involved serious actual violence throughout, rather than threatened or minimal violence.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a finding of special circumstances may justify altering the standard proportion between non-parole period and balance of term, particularly where sentences are partly concurrent and partly cumulative.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 95, 98
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(g), 44(2)

Cases:
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Johnston v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Kelly [2010] NSWCCA 259
- R v Koloamatangi [2011] NSWCCA 288