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Court of Criminal Appeal 9 December 2013

Ramea v R

[2013] NSWCCA 310

Assault & violence
CRIMINAL LAW PLEA OF GUILTY ATTACK ON TAXI DRIVER WITH GLASS NO EXPLANATION FOR DELAY WHETHER TRIAL JUDGE ADOPTED TWO PAROLE PERIOD

Citation: Ramea v R [2013] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 9 December 2013
Judges: Hoeben CJ at CL, Johnson J, Latham J (judgment by Latham J, with whom the others agreed)

Background

The applicant pleaded guilty to wounding with intent to cause grievous bodily harm under s 33(1)(a) of the Crimes Act 1900, following a violent attack on a taxi driver in the early hours of 18 October 2008. The applicant and two unidentified companions hailed the victim's taxi, directed him to a quiet street, and the applicant then smashed a glass into the driver's face before striking him repeatedly. The victim required 24 sutures to facial lacerations, including arterial bleeding near his right eye.

The applicant was sentenced in July 2009 to a non-parole period of six years with a balance of term of three years. He sought an extension of time to appeal that sentence more than four years later, well outside the ordinary time limit.

  • Whether the four-year delay in seeking leave to appeal should be excused, given no explanation was offered for most of the delay
  • Whether the sentencing judge adopted a prohibited two-stage sentencing approach and gave determinative weight to the standard non-parole period (Muldrock error)
  • Whether the judge erred in assessing the objective gravity of the offence
  • Whether the judge erred in finding the offence was committed in company and in treating prior convictions as an aggravating factor
  • Whether the judge failed to give proper weight to the applicant's subjective circumstances
  • Whether the sentence of six years' non-parole was manifestly excessive

Decision

Extension of time and threshold for intervention: The Court of Criminal Appeal applied the approach from Abdul v R [2013] NSWCCA 247, assessing the grounds in a relatively summary fashion to determine whether refusing the extension would cause substantial injustice. No explanation was offered for the four-year delay in respect of five of the six grounds. The Court therefore assessed each ground on its merits to determine whether an injustice warranted intervention.

Muldrock error: The applicant argued the sentencing judge had followed the discredited two-stage approach condemned in Muldrock v The Queen [2011] HCA 39, pointing to the judge's citation of R v Knight and a sequential treatment of objective gravity before subjective matters. Latham J rejected this. The passage from Knight that the judge cited expressed no more than that there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence, which remains an uncontroversial proposition post-Muldrock. A reference to Knight does not automatically establish that determinative weight was attached to the standard non-parole period.

Objective gravity and aggravating factors: The finding that the offence was committed in company was supported by the agreed facts, which recorded two other males accompanying the applicant. The judge's assessment of the offence as slightly above mid-range of objective seriousness was open on those facts, given the sustained and unprovoked nature of the attack. No error was identified in how the judge weighed prior convictions or the applicant's subjective circumstances, including his intoxication and early guilty plea.

Manifest excess: A review of comparable sentencing statistics and decided cases did not support the contention that a six-year non-parole period was plainly unjust for this offence. Several cases involving similar or less serious conduct resulted in comparable or higher non-parole periods. The application was refused.

Orders Made

  • The application for an extension of time within which to seek leave to appeal the sentence was refused.

Key Takeaways

  • Citing R v Knight in sentencing remarks does not, without more, establish that a judge has attached determinative weight to a standard non-parole period or committed Muldrock error.
  • The proposition that there must be an "appropriate relationship" between the standard non-parole period and the objective criminality of the offence remains valid after Muldrock, provided the standard non-parole period is treated as a benchmark rather than a determinative first step.
  • Where an applicant offers no explanation for a lengthy delay in seeking leave to appeal a sentence, the Court of Criminal Appeal will still examine the merits to assess whether refusing an extension would cause substantial injustice, but the absence of any explanation weighs heavily against the application.
  • A finding that an offence was committed "in company" is properly supported where agreed facts record the presence of companions, even if those individuals are unidentified.
  • Comparison sentencing cases and statistics must affirmatively demonstrate that a sentence is plainly unjust before a ground of manifest excess will succeed; merely pointing to lower sentences in other cases is insufficient.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(a) (wounding with intent to cause grievous bodily harm; maximum 25 years; standard non-parole period 7 years)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Abdul v R [2013] NSWCCA 247
- Aitchison v R [2012] NSWCCA 82
- Aldous v R [2012] NSWCCA 153
- Butler v R [2012] NSWCCA 23
- Carroll v R [2012] NSWCCA 118
- Mendes v R [2012] NSWCCA 103
- R v Knight; R v Biuvanua [2007] NSWCCA 283