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Court of Criminal Appeal 18 November 2013

Prince v R

[2013] NSWCCA 274

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL AGAINST S 33 OFFENCE ERROR IN SENTENCING SPECIAL CIRCUMSTANCES CONVICTION APPEAL DISMISSED

Citation: [2013] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 18 November 2013
Judges: Gleeson JA, McCallum J, Schmidt J

Background

The appellant was convicted by a jury in February 2012 of two offences arising from a violent incident in Tamworth on the evening of 20 June 2010: affray under s 93C of the Crimes Act 1900, and wounding with intent to cause grievous bodily harm under s 33(1)(a). The Crown's case turned on witness identification evidence placing the appellant as the person who struck the victim, Mr Waters, on the head with a weapon, causing a 10cm scalp laceration requiring suturing.

The appellant did not contest the affray conviction. He appealed the s 33 wounding conviction on two grounds and also sought leave to appeal the sentence imposed by King DCJ in the District Court.

King DCJ had sentenced the appellant to a fixed term of 18 months for the affray, and a non-parole period of 4 years with a 2-year balance of term for the s 33 offence. A standard non-parole period of 7 years applied to the s 33 offence, which carried a maximum penalty of 25 years imprisonment.

  • Whether the trial judge erred in directions to the jury regarding the alternative charge of reckless wounding in company
  • Whether the verdict on the wounding with intent charge was unreasonable and could not be supported by the evidence, given the reliability of the identification evidence
  • Whether the sentence was manifestly excessive and whether the sentencing judge was entitled to proceed on the basis that the appellant personally inflicted the wounds
  • Whether an undisclosed period of pre-sentence custody in bail-refused conditions required the sentences to be quashed and the matter re-sentenced

Decision

Ground 1 (jury directions): The Court unanimously rejected this ground. Schmidt J, with whom Gleeson JA agreed, found no error in the trial judge's directions to the jury on the alternative charge of reckless wounding in company.

Ground 2 (unreasonable verdict): The majority (Schmidt J and Gleeson JA) accepted that the jury ought to have entertained a reasonable doubt about whether it was the appellant himself who wielded the weapon, given weaknesses in the identification evidence. However, the majority found the verdict could still be sustained on the basis of joint criminal enterprise. The conviction appeal was therefore dismissed. McCallum J respectfully disagreed with the majority's conclusion on the primary Crown case, forming the view that the identification evidence was sufficiently strong to sustain a finding beyond reasonable doubt that the appellant was the person who struck the victim. That view, being in the minority, did not affect the outcome on conviction.

Sentence appeal: The Crown itself identified an error at the hearing that had not been raised in the grounds of appeal. The appellant had spent approximately 19 days in custody on a bail-refused basis before sentencing, but this period was never drawn to the sentencing judge's attention. The Crown properly conceded that, had it been disclosed, King DCJ would have taken it into account in fixing the commencement date of the sentences. This error required the Court to quash the sentences and re-sentence the appellant. Schmidt J, applying the principles from R v Markarian and taking into account the appellant's deprived upbringing, social disadvantage, and the need for both general and specific deterrence (consistent with the guidance in R v Fernando and affirmed in Bugmy v The Queen), re-sentenced the appellant to a total term of 6 years, with a non-parole period of 4 years and a balance of term of 2 years, adjusted to account for the 19 days previously overlooked.

Orders Made

  • Conviction appeal dismissed.
  • Leave to appeal on sentence granted.
  • Sentences imposed by King DCJ quashed and replaced as follows:
  • On the s 93C affray charge: fixed term of 18 months imprisonment commencing 20 January 2012 and expiring 19 July 2013.
  • On the s 33 wounding offence: non-parole period of 3 years and 6 months commencing 20 July 2012 and expiring 19 January 2016, with a balance of term of 2 years commencing 20 January 2016 and expiring 19 January 2018.
  • First eligible date for release on parole: 20 January 2016.

Key Takeaways

  • A jury verdict on identification evidence will not be set aside simply because an appellate court, reading a transcript, experiences some doubt. Under the test in M v The Queen and SKA v The Queen, the question is whether the jury must have entertained a doubt, not merely whether it might have. The jury's advantage in seeing and hearing witnesses remains a significant consideration.

  • Where a conviction can be sustained on a joint criminal enterprise basis, a weakness in the primary Crown case (that the appellant personally inflicted the wound) does not necessarily render the verdict unreasonable. The majority upheld the conviction on that alternate basis.

  • An undisclosed period of pre-sentence custody spent bail-refused can constitute a material error in sentencing, even where it is not raised as a ground of appeal. The Crown's own identification of the error at the hearing was sufficient to prompt the Court of Criminal Appeal to quash and re-sentence.

  • In sentencing for serious violence by an offender with a background of social deprivation and disadvantage, the principles from R v Fernando, as affirmed in Bugmy v The Queen, require that moral culpability be moderated to reflect reduced capacity for self-control. However, they do not displace the need for deterrence, particularly where the offending was premeditated and part of a group assault.

  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 may be found where ongoing supervision after release is clearly warranted, justifying a longer parole period relative to the non-parole period than the statutory default.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 93C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 54A(1)
- Criminal Appeal Act 1912 (NSW), ss 6(1), 6(3)

Cases:
- Bourke v The Queen [2010] NSWCCA 22; (2010) 199 A Crim R 38
- Bugmy v The Queen [2013] HCA 37
- Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Libke v R [2007] HCA 30; (2007) 230 CLR 559
- M v The Queen [1994] HCA 63; (1994) 181 CLR 487
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- Munda v Western Australia [2013] HCA 38
- Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
- R v Engert (1995) 84 A Crim R 67
- R v Fernando (1992) 76 A Crim R 58
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400