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Court of Criminal Appeal 18 October 2013

Bonett v R

[2013] NSWCCA 234

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING RELEVANCE OF MOTIVE VIGILANTISM WHETHER QUASI CUSTODY CONSIDERED

Citation: Bonett v R [2013] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 18 October 2013
Judges: Gleeson JA, RA Hulme J, Adamson J (unanimous)

Background

The appellant pleaded guilty in the Parramatta District Court to aggravated robbery with deprivation of liberty under s 95(1) of the Crimes Act 1900, and a related offence of taking and driving a conveyance without consent. The offences arose from a planned home invasion targeting a 41-year-old man. The appellant and co-offenders justified the robbery on the basis that they believed the victim had been obtaining sexual favours from a 16-year-old, characterising his conduct as paedophilia.

During the robbery, the victim was forced to take tablets, bound, and had his cash and property stolen. A co-offender assaulted the victim and fractured his eye socket. The appellant was sentenced to an aggregate term of four years' imprisonment with a non-parole period of two years, reflecting a 20% discount for a guilty plea entered on the day of trial.

The appellant sought leave to appeal against that sentence on multiple grounds, including alleged errors in the sentencing judge's treatment of the victim's injuries, the relevance of vigilante motive, parity with co-offenders, manifest excess, and a proposed fresh evidence ground relating to quasi-custody.

  • Whether the sentencing judge erred by taking into account the victim's injuries when those injuries were caused by a co-offender and were not an element of the specific charge
  • Whether treating the vigilante motive as an aggravating factor constituted error
  • Whether the sentence was disproportionate compared to co-offenders, giving rise to a justifiable sense of grievance
  • Whether the aggregate sentence was manifestly excessive
  • Whether fresh evidence concerning quasi-custody should be admitted on appeal, and whether a proposed additional ground of appeal should be allowed

Decision

Victim injuries and the De Simoni principle: The appellant argued that treating the victim's injuries as an aggravating factor breached the principle in R v De Simoni, which prohibits sentencing a person for a more serious offence than the one charged. The Court upheld the sentencing judge's reasoning, drawing on Josefski v R, which confirmed that a sentencing court may take into account foreseeable harm to a victim even where that harm was not a formally charged element of the offence. The injuries were reasonably foreseeable in the context of a planned home invasion of this nature.

Vigilante motive: The Court confirmed that a vigilante motive does not operate to reduce the objective seriousness of an offence. Taking the law into one's own hands is not a mitigating circumstance, regardless of the offender's belief in the justness of their cause.

Parity with co-offenders: The appellant's sentence was significantly lower than that of the principal co-offender, who received seven years and two months with a four-year non-parole period. The Court found no justifiable sense of grievance in the disparity; the differences in sentence reflected differences in criminality and the discount each offender received. The comparison with the third co-offender, Knowles, who received a substantially lighter sentence, was also addressed, and the Court found that difference was explicable by the distinct charge and lesser role Knowles played.

Fresh evidence and quasi-custody ground: The appellant sought to introduce fresh evidence on a proposed additional ground that quasi-custody had not been considered at sentencing. The Court applied the test in R v Goodwin, which requires that fresh evidence on appeal satisfy three cumulative requirements: it must have real significance to the proceedings; its significance must have been unknown to the appellant at the time of sentencing; and its existence must not have been made known to legal representatives at the time. The Court found these requirements were not met, noting no submission on quasi-custody had been made at the hearing and no sufficient evidence had been adduced. Leave to add the proposed ground was refused.

Orders Made

  • Leave to amend the application to add proposed ground 7 (fresh evidence as to quasi-custody) refused
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court may take into account foreseeable harm suffered by a victim even where that harm was inflicted by a co-offender and was not a separately charged element, provided the harm was a reasonably foreseeable consequence of the offending conduct: Josefski v R applied.
  • Vigilante motive does not operate as a mitigating factor in sentencing; the Court of Criminal Appeal confirmed that self-appointed enforcement of perceived wrongs does not reduce the objective gravity of an offence.
  • Parity between co-offenders does not mandate identical sentences where differences in role, culpability, and plea discount explain the disparity; no justifiable sense of grievance arises merely from a lighter sentence received by another participant.
  • Under the Goodwin test, fresh evidence on a sentence appeal is admissible only when three cumulative conditions are satisfied: real significance to the proceedings, the significance being unknown to the appellant at sentencing, and the evidence's existence not having been known to legal representatives at the time. These requirements are not alternatives.
  • Refusing to allow a proposed additional ground on appeal is appropriate where the ground is bound to fail because the evidentiary and procedural preconditions for its success were never established at first instance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 95(1), 96, 111(2), 154A(1)(a), 166
- Crimes (Domestic Violence) Act 2007 (NSW): s 13
- Criminal Appeal Act 1912 (NSW): s 6(3)
- Criminal Procedure Act 1986 (NSW): ss 166, 168(3), 268(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 44(2), 53A

Cases:
- R v De Simoni [1981] HCA 31; 147 CLR 383
- Josefski v R [2010] NSWCCA 41; 217 A Crim R 183
- R v Goodwin (1990) 51 A Crim R 328
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- McKellar v R [2010] NSWCCA 295
- Matthews v R [2013] NSWCCA 187
- R v Birks (1990) 19 NSWLR 677
- R v Cartwright (1989) 17 NSWLR 243
- R v Fordham (1997) 98 A Crim R 359
- R v Many (1990) 51 A Crim R 54
- R v LBK [2001] NSWCCA 248
- R v Swan [2006] NSWCCA 47
- Renshaw v R [2012] NSWCCA 91
- Zreika v R [2012] NSWCCA 44
- Quealey v R [2010] NSWCCA 116
- Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24