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Court of Criminal Appeal 27 June 2013

Hendra v R

[2013] NSWCCA 151

Assault & violence
CRIMINAL LAW SENTENCE APPEAL WHETHER LEGITIMATE SENSE OF GRIEVANCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Hendra v R [2013] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 27 June 2013
Judges: Hoeben CJ at CL, McCallum J, RA Hulme J

Background

The appellant was a security guard at a Sydney nightclub who, following a disturbance in the early hours of the morning, kicked a patron once in the stomach or chest area. The victim had already been savagely beaten by other security guards and was barely able to sit upright on a stool when the appellant approached and struck him. CCTV footage captured the incident and was viewed by the sentencing judge during trial.

The appellant was charged with assault occasioning actual bodily harm in company and common assault. A jury acquitted him of the more serious charge but convicted him of common assault. The sentencing judge characterised the offence as "one of the worst types of common assault that it is possible to contemplate" and imposed a total sentence of 18 months imprisonment, comprising a nine-month non-parole period and a nine-month balance of term.

The appellant sought leave to appeal against that sentence on four grounds.

  • Whether the sentencing judge erred by failing to take into account that the offence could have been dealt with summarily in the Local Court, with a lower maximum penalty
  • Whether the appellant had a legitimate sense of grievance arising from the disparity between his sentence and those imposed on co-offenders
  • Whether the sentencing judge erred in characterising the offence as one of the worst types of common assault
  • Whether the sentence of 18 months imprisonment was manifestly excessive

Decision

Summary disposal in the Local Court: Common assault under s 61 of the Crimes Act is a Table 2 offence under the Criminal Procedure Act, meaning it must be dealt with summarily unless the prosecutor elects otherwise. Had it remained in the Local Court, the maximum penalty at the relevant time was 12 months imprisonment. The Court confirmed that where a prosecutor elects to proceed on indictment, a sentencing judge must take the lower summary maximum into account. However, the Court found the sentencing judge had in fact done so. The judge had expressly noted the Local Court ceiling and structured the sentence so that the non-parole period, considered as a fixed term, would have fallen within what the Local Court could have imposed.

Legitimate sense of grievance: The appellant pointed to lighter sentences received by co-offenders. The Court rejected this ground. The co-offenders had pleaded guilty and received discounts accordingly, whereas the appellant contested the charges and maintained no remorse. The appellant's role as second-in-charge of security that evening, a position carrying responsibility for controlling rather than inflicting violence, was also an aggravating circumstance not shared by all co-offenders.

Objective seriousness: A sentencing judge's evaluation of objective seriousness is a discretionary judgment the Court of Criminal Appeal will not disturb unless it was not reasonably open. Here, the sentencing judge had viewed the CCTV footage, heard all of the trial evidence, and took into account the extreme vulnerability of the victim at the moment of the assault and the appellant's position of seniority. The Court of Criminal Appeal held the characterisation was well open on the evidence.

Manifest excess: Once it was accepted that the offence fell within the worst category of common assault, the Court found the sentence was within the permissible range. At 18 months against a two-year maximum, the sentence represented three-quarters of the maximum penalty. The finding of special circumstances justified a more generous adjustment of the statutory non-parole ratio. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where a Table 2 offence under the Criminal Procedure Act is prosecuted on indictment, the sentencing court must have regard to the lower maximum penalty applicable in the Local Court; however, this does not cap the sentence, and the District Court retains power to impose up to the full indictable maximum.
  • A legitimate sense of grievance arising from co-offender disparity will not be established where the differences in sentence are explained by guilty pleas, remorse, and differing objective circumstances.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a single blow can constitute one of the worst types of common assault where the victim was already severely injured and wholly vulnerable at the time of the assault.
  • An appellate court will not interfere with a sentencing judge's characterisation of objective seriousness unless that characterisation was not reasonably open, particularly where the judge viewed CCTV footage and heard all of the evidence first-hand.
  • Continued absence of remorse, including an express statement to a probation and parole officer that no remorse was felt, is a legitimate sentencing consideration that can weigh against an offender on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 61
- Criminal Procedure Act 1986 (NSW), Chapter 5, Schedule 1 (Tables 1 and 2), s 268

Cases:
- R v Palmer [2005] NSWCCA 349
- Zreika v R [2012] NSWCCA 44