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Court of Criminal Appeal 6 December 2013

Youssef v R

[2013] NSWCCA 308

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL AGGRAVATED KIDNAPPING NO ERRORS MADE OUT

Citation: Youssef v R [2013] NSWCCA 308
Court: Court of Criminal Appeal
Date: 6 December 2013
Judges: Hoeben CJ at CL, Blanch J, R A Hulme J

Background

The appellant pleaded guilty in the District Court to wounding with intent to cause grievous bodily harm and specially aggravated kidnapping, arising from a sustained attack on a 53-year-old woman with a serious intellectual disability. The victim had attended the appellant's home with her son, who had been mowing lawns there. After the son left, the appellant and others attacked the victim in the kitchen, stabbing her multiple times with a knife, binding her hands and mouth with tape, and forcing her to ingest diazepam. The victim sustained numerous injuries, including wounds that penetrated muscle tissue and a potentially life-threatening laceration to the chest.

Judge Neilson sentenced the appellant in the District Court to 6 years and 9 months on each count, with non-parole periods of 4 years. The kidnapping sentence was accumulated by 6 months on the wounding sentence, producing a total effective sentence of 7 years 3 months with a minimum custodial term of 4 years 6 months.

The appellant sought leave to appeal on four grounds, abandoning one and adding a fifth at the hearing. The Court of Criminal Appeal granted leave but dismissed the appeal.

Legal Issues

  • Whether the sentencing judge erred by treating harm exceeding the basic element of actual bodily harm as an aggravating factor when sentencing for the kidnapping offence
  • Whether the judge erred by factoring the benefit to the victim of not having to give evidence into the utilitarian value of the guilty pleas
  • Whether the judge gave insufficient weight to the appellant's mental condition and over-emphasised general deterrence
  • Whether the principle of totality required the sentences to be served entirely concurrently rather than partially accumulated

Decision

Ground 1: Harm beyond the basic element as an aggravating factor

The kidnapping offence under s 86(3) of the Crimes Act 1900 requires actual bodily harm as an element. The appellant argued the judge erred by treating the injuries as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, which prohibits giving additional weight to a factor that is already an element of the offence. The Court rejected this argument. The judge had not double-counted the element itself; he had properly treated the harm that went significantly beyond actual bodily harm as an additional aggravating consideration. That approach is consistent with established Court of Criminal Appeal authority. This ground was effectively abandoned at the hearing.

Ground 2: Utilitarian value of guilty pleas and benefit to the victim

The appellant contended that the judge wrongly treated the victim's being spared from giving evidence as part of the utilitarian value of the guilty plea, rather than as a matter bearing on remorse. The Court found no practical error. The appellant received a discount at the top of the usual range for utility of the pleas, and also received a finding of true remorse. The Court observed that the appellant had given a derogatory account of the victim in her police interview and denied any involvement; the pleas were not entered until 13 months later in the Local Court. The Court also noted that the point about saving the victim from giving evidence had been raised by the appellant's own counsel in submissions below.

Ground 3: Mental condition and general deterrence

The appellant argued the sentencing judge failed to address whether her mental condition, including Major Depressive Disorder and epilepsy, made her an unsuitable vehicle for general deterrence. The Court acknowledged the judge's reasons on this point were terse. However, the sentencing remarks were delivered after only a brief adjournment following extensive submissions, and the judge could not be expected to address every argument raised across more than 20 pages of transcript. The Court found the judge had plainly considered the appellant's mental health at length, made extensive mitigating findings, and noted her conditions had improved since entering custody. No error was established, though the Court granted leave given the lack of express reasoning on the deterrence point.

Ground 5: Totality and partial accumulation

The new ground contended that the offences shared so many common features that complete concurrency was required. The Court disagreed. The kidnapping offence involved a distinct element, the detention of the victim, which was not relevant to the wounding count. Much of that detention occurred after the wounding and included restraining the victim with tape. The wounding offence, for its part, incorporated the element of intent to cause grievous bodily harm. Each offence added to the appellant's total criminality in a way that justified partial accumulation. The degree of accumulation imposed by the judge was described as modest.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court does not double-count an element of an offence by treating harm that substantially exceeds that element as a separate aggravating factor; it is the excess beyond the basic element that is properly aggravated.
  • Where a guilty plea discount is assessed at the top of the usual range and a finding of true remorse is separately made, an appellant cannot demonstrate practical prejudice from the manner in which the judge characterised ancillary benefits of the plea.
  • A causal connection between a mental condition and the offending is not a precondition for reducing the weight given to general deterrence, but the onus of establishing mitigation on this basis rests with the offender, and no automatic reduction follows from the mere presence of a mental disorder.
  • Terse sentencing remarks on a particular mitigating factor do not necessarily establish error; appellate courts consider the context of the full sentencing proceedings, including the length and content of submissions, when assessing whether a matter was genuinely overlooked.
  • Partial accumulation of sentences is appropriate where distinct offences contain different elements that each independently increase an offender's total criminality, even when the offences arise from the same criminal episode.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Benitez [2006] NSWCCA 21; (2006) 160 A Crim R 166
- R v Boney [2008] NSWCCA 313
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Chisari [2006] NSWCCA 19
- R v Engert (1995) 84 A Crim R 67
- R v Halls [2008] NSWCCA 251
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270