Citation: Malicki v R; R v Malicki [2015] NSWCCA 162
Court: Court of Criminal Appeal, New South Wales
Date: 25 June 2015
Judge(s): Leeming JA (principal judgment); Johnson J and Beech-Jones J (agreeing)
Background
The appellant was convicted after a nine-day trial of causing injury to a man she believed would be called as a witness in judicial proceedings, contrary to s 326(2) of the Crimes Act 1900 (NSW). The offence arose from an assault in a Sydney shopping centre on 31 October 2011. The victim was attending the Supreme Court that day to give evidence in a murder trial involving the appellant's partner's brother. During the assault, the appellant's partner inflicted the majority of the injuries. The appellant admitted to striking the victim twice with her fists, saying she feared for her partner's safety.
The jury returned a guilty verdict in February 2013. Sentencing was delayed until May 2014, when the primary judge imposed 20 months' imprisonment to be served by way of an Intensive Correction Order (ICO), effectively a supervised community-based sentence. The maximum penalty for the offence was 10 years' imprisonment.
Two appeals were heard together. The appellant filed a conviction appeal, raising three alleged misdirections in the jury charge. The Crown filed a sentence appeal, arguing the ICO was manifestly inadequate. By the time both appeals were heard, the appellant had already served more than half her sentence.
Legal Issues
- Whether the trial judge misdirected the jury on the elements of the s 326(2) offence, including the meaning of "causing injury" and the belief element
- Whether the trial judge misdirected the jury in response to a question about the interaction between joint criminal enterprise and self-defence
- Whether the trial judge failed to give adequate directions in response to the jury's question about inability to agree on three elements of the offence
- Whether a misdirection that operated favourably to the accused could constitute a miscarriage of justice
- Whether the sentence of 20 months served as an ICO was manifestly inadequate, given that the Crown had abandoned reliance on much of the alleged criminal conduct by the time of sentencing
Decision
Conviction appeal
The Court of Criminal Appeal accepted that the trial judge had misdirected the jury on the elements of the offence. However, the misdirection operated in the appellant's favour, not against her. No objection had been taken by defence counsel at trial. The court noted that a misdirection favourable to an accused does not ordinarily result in a miscarriage of justice, and no miscarriage was established here. Leave was refused on grounds 1 and 2, and the conviction appeal was dismissed.
Crown sentence appeal
The Crown's sentence appeal faced a fundamental difficulty: by the time of the sentencing hearing, a different Crown advocate had abandoned the joint criminal enterprise case entirely, including the allegation that the appellant had "lured" the victim into a secluded area. The sentencing judge therefore proceeded on the basis of a relatively minor assault by the appellant alone. The Court held that no error was demonstrated in that approach, because the Crown had itself confined the sentencing case in that way.
The court also rejected the Crown's argument that the sentencing judge had "tailored" the sentence to achieve an outcome not otherwise available. The court noted that such an inference requires a strong evidentiary foundation and could not be supported on the sentencing remarks in this case. Given the narrow criminality before the sentencing judge, and the appellant's significant mitigating circumstances (including a history of substance exposure from a young age, mental illness, and substantial rehabilitation progress), the sentence was described as relatively lenient but not an "affront to justice" or "plainly unjust." The Crown appeal was dismissed.
Orders Made
Conviction appeal:
- Leave refused in respect of grounds 1 and 2
- Appeal dismissed
Crown sentence appeal:
- Appeal dismissed
Key Takeaways
- A jury misdirection that operates favourably to the accused does not ordinarily result in a miscarriage of justice, and the Court of Criminal Appeal will not intervene on that basis alone.
- Where the Crown abandons significant aspects of an offender's alleged criminality before sentencing, the sentencing court is bound to proceed on the narrower case as put, and the Crown cannot later challenge the resulting sentence on grounds that wider conduct was not reflected in the outcome.
- Under the "tailoring" principle, a court will only infer that a sentencing judge has engineered a sentence to achieve an unavailable result where the evidentiary foundation is strong; the mere fact that a lenient sentence was imposed does not support such an inference.
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that the standard for Crown sentence appeals requires the outcome to be an "affront to justice" or "plainly unjust," a threshold not met here in light of how the Crown had itself run the sentencing hearing.
- The decision illustrates how strategic choices made by the Crown during trial and at sentencing can significantly constrain the available grounds for a subsequent Crown appeal against sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 326(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7 and Part 5
- Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6
- Criminal Legislation Amendment Act 1995 (NSW)
- Criminal Appeal Rules, r 4
Cases:
- Gordon v R [2009] NSWCCA 72
- Kural v The Queen (1987) 162 CLR 502
- Linney v R [2013] NSWCCA 251
- Marinellis v R [2006] NSWCCA 307
- Panchal v R; R v Panchal [2014] NSWCCA 275
- Polley v Johnson [2014] NSWSC 1191
- R v Cahill [2015] NSWCCA 53
- R v Harris [2015] NSWCCA 81
- R v Lansdell (Court of Criminal Appeal (NSW), 22 May 1995, unrep)
- R v Schaffer [2005] NSWCCA 193; 153 A Crim R 372
- SKA v The Queen [2011] HCA 13; 243 CLR 400