AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
18
Court of Criminal Appeal 5 March 2015

Sabongi v R

[2015] NSWCCA 25

Also reported as (2015) 249 A Crim R 167
Assault & violenceDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL ALCOHOL FUELLED VIOLENCE SEPARATE OFFENCES OF DOMESTIC VIOLENCE BREACH OF BOND DELAY IN SENTENCING

Citation: Sabongi v R [2015] NSWCCA 25
Court: Court of Criminal Appeal, NSW
Date: 5 March 2015
Judges: Hoeben CJ at CL, Johnson J, Hamill J (judgment delivered by Hamill J)

Background

The applicant pleaded guilty to four offences arising from two separate incidents in Sydney's CBD late on the evening of 3 July 2010. These included two counts of assault occasioning actual bodily harm, an affray, and the most serious count, recklessly causing grievous bodily harm in company, after the applicant struck a victim on the head with a glass bottle, fracturing the victim's skull and requiring surgery involving metal plates. The victim spent time in intensive care, suffered lasting physical and psychological harm, and was forced to withdraw from university.

Sentencing also addressed five domestic violence offences committed between June 2007 and March 2008 against a former partner. Those matters had originally been resolved in the Local Court by a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. Because the 2010 CBD offences were committed while the bond was still in force, the District Court was required to deal with both sets of offences together.

Judge Hoy SC imposed a total effective sentence of 8 years with a total effective non-parole period of 6 years, achieved through a combination of partially concurrent and partially accumulated individual sentences. The applicant sought leave to appeal, contending the overall sentence was excessive and raising several specific grounds.

  • Whether the sentencing judge erred by failing to apply an adequate discount for the applicant's late plea of guilty
  • Whether the sentencing judge erred in the accumulation of the domestic violence sentences and the 2010 offences
  • Whether special circumstances existed (within the meaning of the Crimes (Sentencing Procedure) Act 1999) justifying a reduction in the non-parole period below the statutory default ratio of one-third
  • Whether the total effective non-parole period of 6 years failed to give proper effect to the finding of special circumstances, particularly given the accumulation of sentences and the applicant's need for extended post-release supervision
  • Whether the length of delay between the offending and sentencing warranted further mitigation

Decision

Hamill J (with whom Hoeben CJ at CL and Johnson J agreed) rejected most of the applicant's grounds but upheld the appeal on the limited basis that the total effective non-parole period did not adequately reflect the finding of special circumstances.

On the plea discount, the court accepted that the plea was late and that only a modest discount was warranted. The judge's approach to this issue was not found to be in error. On delay, the court acknowledged that the passage of several years between the offences and sentencing was a relevant mitigating factor, but found the sentencing judge had given it appropriate weight in the context of serious offending.

Regarding accumulation, the court found no error in the structure of the individual sentences or the partial accumulation between the two sets of offences. The court confirmed that where a sentencing judge accumulates sentences and finds special circumstances on that basis, the statutory non-parole ratio must be adjusted at the level of the total effective sentence, not merely for individual components. The sentencing judge had found special circumstances but had attributed them primarily to factors other than accumulation. The resulting total effective non-parole period of 6 years out of 8 years was, however, found to be insufficiently adjusted to give practical effect to the finding.

The court held that the total effective sentence of 8 years should not be disturbed given the gravity of the offending. However, the total effective non-parole period was reduced from 6 years to 5 years and 3 months by varying only the sentence on the most serious count (count 7). This adjustment was directed to providing the applicant with a longer period of supervised parole, supporting his rehabilitation while still serving the other purposes of sentencing, including deterrence, denunciation, and community protection.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences on the domestic violence sequences (10, 5, 11, 13, and 2) confirmed
  • Sentences on counts 1, 3, and 4 confirmed
  • Sentence on count 7 quashed and replaced with a non-parole period of 3 years and 3 months (commencing 5 February 2016, expiring 4 May 2019) and a balance of term of 2 years and 9 months (commencing 5 May 2019, expiring 4 February 2022)
  • Total effective sentence remains 8 years; total effective non-parole period reduced to 5 years and 3 months
  • The applicant eligible for release to parole at expiration of the non-parole period on count 7

Key Takeaways

  • Where a sentencing court accumulates sentences and finds special circumstances, the statutory one-third ratio between the non-parole period and the total sentence must be applied and adjusted at the level of the total effective sentence, not only at the level of individual component sentences.
  • A finding of special circumstances that does not translate into a meaningful adjustment to the total effective non-parole period may constitute error, even where the individual sentences are otherwise unimpeachable.
  • Significant delay between offending and sentencing is a recognised mitigating factor, but it will not overcome the weight of objective seriousness where the offending is grave; in this case, a near-fatal skull fracture caused with a glass bottle was treated as offending of the highest order.
  • Rehabilitation prospects, positive custodial conduct reports, and the applicant's age and personal circumstances were accepted as relevant to the special circumstances finding, supporting a longer period of supervised parole rather than a reduction in the total sentence.
  • In dismissing the bulk of the grounds, the Court of Criminal Appeal reaffirmed the principle from House v The King that appellate intervention in sentencing requires demonstrated error; the court limited its intervention to the narrow question of the non-parole period ratio.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 58, 98
- Crimes Act 1900 (NSW), ss 35, 59, 61, 93
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 268

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Johnson v The Queen [2004] HCA 15; 205 ALR 346
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- Carroll v The Queen [2010] NSWCCA 55; 77 NSWLR 45
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- AB v R [2014] NSWCCA 31
- AI v R [2011] NSWCCA 95
- CM v R [2013] NSWCCA 341
- Houri v R [2013] NSWCCA 279
- Khanchitanon v R [2014] NSWCCA 204
- Kaminic v R [2014] NSWCCA 116
- R v Borkowski [2009] NSWCCA 102
- Mulato v R [2006] NSWCCA 282
- Cicekdag v R [2007] NSWCCA 218
- Pattalis v R [2013] NSWCCA 171
- Hopley v R [2008] NSWCCA 105
- Heron v R [2006] NSWCCA 215
- Fina'i v R [2006] NSWCCA 134
- MH v R [2011] NSWCCA 230
- MB v R [2013] NSWCCA 254