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Court of Criminal Appeal 9 April 2014

Peters v R

[2014] NSWCCA 49

Assault & violence
CRIMINAL LAW SENTENCING APPEAL AGAINST DEGREE OF ACCUMULATION NO CONTRAVENTION OF TOTALITY PRINCIPLE

Citation: Peters v R [2014] NSWCCA 49
Court: Court of Criminal Appeal, NSW
Date: 9 April 2014
Judge(s): Basten JA; Fullerton J; Davies J

Background

The applicant was convicted by a jury of two offences arising from a violent attack on a victim at a rural property in NSW: causing grievous bodily harm under s 33(1)(b) of the Crimes Act 1900 (NSW), and reckless wounding under s 35(4) of the same Act. The applicant, who had significant psychiatric difficulties, a dysfunctional background, and drug addiction, had no recollection of the offending and went to trial on the question of identity.

The attack involved striking the victim repeatedly with a pipe-like object, rendering him semi-conscious, and then using a knife to sever parts of two fingers after offering the victim a grotesque choice of which fingers to lose. McLoughlin DCJ SC sentenced the applicant to ten years imprisonment (with a six-and-a-half-year non-parole period) for the more serious offence and three years (with a two-year non-parole period) for reckless wounding, accumulating the longer sentence by 12 months on the shorter one.

The applicant did not challenge the individual sentences. The sole issue before the Court of Criminal Appeal was whether the 12-month element of accumulation was appropriate, or whether the sentences should have been served fully concurrently.

  • Whether the sentencing judge erred by accumulating the sentences by 12 months, given that both offences arose from a single continuous course of conduct
  • Whether the totality principle required fully concurrent sentences in these circumstances
  • Whether a concession by the prosecutor at sentencing constrained the sentencing judge's discretion
  • Whether the finding that the offending was mid-range in seriousness (based primarily on planning and intent) affected the appropriate degree of accumulation

Decision

The Court of Criminal Appeal rejected all grounds of the application and refused leave to appeal. Basten JA, with whom Fullerton J and Davies J agreed, held that the characterisation of the offending as a single course of conduct did not, of itself, require fully concurrent sentences. Although a single continuous episode was involved, the offending occurred in clear stages and the offender could have desisted at any point.

On the prosecution's comments at sentencing, Basten JA found that the prosecutor's remark that "there may be cause for some partial accumulation, but it would be of a minor nature" did not amount to a binding concession and provided no basis for restricting the sentencing judge's discretion. The Court also noted that the applicant's own trial counsel had acknowledged some accumulation was appropriate given the distinct acts of violence, and that this acknowledgment was not disclosed by the applicant in seeking fully concurrent sentences on appeal.

The argument that full concurrency was warranted because the prosecution could theoretically have charged the entire episode as a single offence under s 33(1)(b) was also dismissed. The Court found no suggestion of double counting, and observed that had a single charge been laid, the sentence for that offence would likely have exceeded the sentence imposed on the more serious count alone.

Finally, the Court rejected the attempt to distinguish the decision in Iskov v R [2011] NSWCCA 241, clarifying that courts do not follow or distinguish precedents on a facts-matching basis. There was no demonstrated error in the sentencing judge's identification or application of the relevant principles, and the degree of accumulation was within an appropriate range.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • A single continuous episode of offending does not automatically require fully concurrent sentences where the offending occurred in distinct stages and the offender had the opportunity to desist between them.
  • The Court of Criminal Appeal confirmed that a prosecutor's observation at sentencing that accumulation "would be of a minor nature" does not constitute a binding concession constraining the sentencing judge's discretion.
  • Where two charges arise from the same criminal episode, no double counting arises simply because the prosecution chose to lay separate charges rather than a single more serious charge, provided the sentencing reflects the true totality of criminality.
  • In refusing leave, the Court emphasised that appellate courts do not follow or distinguish sentencing decisions on a facts-matching basis; the relevant inquiry is whether the sentencing judge correctly identified and applied the applicable principles.
  • No error was established where the mid-range assessment of seriousness rested on apparent planning and intention, as that finding was open to the sentencing judge and did not itself determine the appropriate degree of accumulation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b) (causing grievous bodily harm with intent)
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)

Cases:
- Iskov v R [2011] NSWCCA 241