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Court of Criminal Appeal 13 November 2015

R v MF

[2015] NSWCCA 283

Assault & violence
CRIMINAL LAW APPEAL SENTENCING WHETHER MANIFESTLY INADEQUATE PRINCIPLES OF CROWN APPEALS WHERE SENTENCING YOUNG OFFENDER

Citation: R v MF [2015] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 13 November 2015
Judges: Bathurst CJ, Rothman J, McCallum J

Background

The respondent, referred to as MF (a pseudonym required by legislation because he was a child at the time of the offence), pleaded guilty to causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence involved a horrific attack on a woman known as K, who was set alight with an accelerant in a laneway in March 2012. MF was 17 years old at the time.

MF's adult cousin, M, recruited and ultimately coerced MF into carrying out the attack. MF told police that M had threatened him with a gun and had applied escalating pressure over several weeks before the night of the offence. Although duress did not provide a complete defence on the facts, it was a significant factor in sentencing. MF later signed an undertaking to give evidence against M, whose trial without MF's testimony rested on a circumstantial case alone.

The sentencing judge in the District Court imposed a sentence of 6 years imprisonment with a non-parole period of 3 years, reflecting what the judge described as a notional head sentence of 11 years reduced by 45% for MF's guilty plea and his past and promised future assistance to authorities. The Crown appealed, contending the sentence was manifestly inadequate.

  • Whether the sentence of 6 years (with a 3-year non-parole period) was manifestly inadequate for an offence of this gravity
  • Whether the sentencing judge erred in his treatment of general deterrence when sentencing a young offender who acted under non-exculpatory duress
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to intervene even if error were established
  • What principles govern Crown appeals in circumstances where the offending is so particular as to provide no useful guidance for future sentencing exercises

Decision

McCallum J (with whom Rothman J agreed, and Bathurst CJ agreed subject to one observation) dismissed the appeal. Her Honour found that the sentencing judge had undertaken a careful and principled exercise of the sentencing discretion. The particularity of the case demanded fine judgments across multiple competing considerations, including the age of the offender, the presence of non-exculpatory duress, the promise of significant assistance to the Crown, and the grave objective seriousness of the offence.

On the question of general deterrence, Bathurst CJ noted some doubt as to whether the sentencing judge had fully incorporated general deterrence into the head sentence, as distinct from the non-parole period. However, his Honour concluded that this potential error provided no basis for intervention. The exceptional circumstances meant that any resentencing would provide no meaningful guidance to other courts, and the sentence, while somewhat lenient, did not reach the threshold of an affront to justice that would require correction.

McCallum J confirmed that rehabilitation was an appropriate primary focus when sentencing a 17-year-old offender, and that the weight given to rehabilitation did not come at the impermissible expense of punishment or deterrence. The proposition that general deterrence must carry fixed or predominant weight in every sentencing exercise was found to be inconsistent with the principles of individualised justice that underpin the sentencing discretion.

The Court also noted that the Crown had put no separate submissions on the residual discretion to decline to intervene. McCallum J observed that, in accordance with established authority, the residual discretion should ordinarily receive specific attention in Crown appeals.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a sentence will not be set aside on appeal merely because it appears lenient; the test is whether the sentence is so unreasonable or plainly unjust as to amount to an affront to justice.
  • Where the circumstances of an offence are so particular that any resentencing exercise would provide no guidance to other courts, this strongly informs the exercise of the residual discretion not to interfere.
  • General deterrence does not carry fixed or predominant weight in every sentencing exercise; the sentencing court must synthesise all relevant statutory purposes, and rehabilitation may appropriately take priority when sentencing a young offender.
  • Non-exculpatory duress, though not a complete defence, can operate as a significant mitigating factor and affect the weight properly given to deterrence in a sentencing exercise.
  • Crown appeals should ordinarily include specific submissions addressing the residual discretion not to intervene, even where the appellant contends error has been established.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 15A, 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 23, 54D
- Crimes Act 1900 (NSW), ss 27, 33
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- AM v R [2012] NSWCCA 203
- BP v The Queen [2010] NSWCCA 159
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- CMB v Attorney General for New South Wales [2015] HCA 9
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Griffiths v The Queen [1977] HCA 44; 137 CLR 293
- Markarian v R [2005] HCA 25; 228 CLR 357
- McGrath v R [2010] NSWCCA 48
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Baker [2000] NSWCCA 85
- R v Borkowski [2009] NSWCCA 102
- R v Ellis (1986) 6 NSWLR 603
- R v LNT [2005] NSWCCA 307
- R v Majid [2010] NSWCCA 121
- R v MF [2014] NSWDC 136 (decision under appeal)