Citation: De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32
Court: Court of Criminal Appeal, NSW
Date: 13 March 2015
Judges: Beazley P, Adams J, Fullerton J
Background
Four co-offenders were each convicted of one count of specially aggravated break, enter and commit a serious indictable offence under s 112(3) of the Crimes Act 1900 (NSW). The serious indictable offence was larceny, and the circumstance of special aggravation was the use of a shotgun or rifle. The maximum penalty for this offence is 25 years' imprisonment, with a standard non-parole period of 7 years.
In the early hours of 4 July 2011, the four offenders broke into a home where a man, his partner, and four young children (aged two to ten) were asleep. They were armed with a rifle, a knife, and a taser. The offenders pointed the rifle at the male victim's head, held it inches from the female victim's face and pulled the trigger (it did not discharge), struck the male victim with either a fist or rifle butt, threatened victims with the knife and taser, and demanded money, phones, and drugs before stealing laptops and other items and demanding car keys.
The sentencing judge treated all four offenders as participants in a joint criminal enterprise. Sentences ranged from 8 years to 8 years and 6 months non-parole period, with balances of term between 4 years and 4 years and 6 months. Each sentence reflected a discount for a guilty plea, ranging from 10 to 25 per cent.
Legal Issues
- Whether the sentences imposed on each applicant were manifestly excessive
- Whether the sentencing judge erred in finding the offending of Zechel, Puru, and De Jong approached or was "close to" a worst case under s 112(3)
- Whether the sentencing judge gave adequate weight to De Jong's Aboriginality, youth, and social dysfunction, including the principles from R v Fernando
- Whether the commencement date fixed for Zechel's sentence was in error
Decision
The Court of Criminal Appeal, in reasons delivered by Fullerton J (with Beazley P and Adams J agreeing), addressed each applicant's grounds in turn. The central contested question was whether the sentencing judge was correct to characterise the offending as approaching the worst category, given the broad range of conduct captured by s 112(3). The Court examined the Schedule of comparable authorities in detail to assess where the offending properly sat within that range.
On the "worst case" ground, the Court found that the sentencing judge did err in characterising the offending as approaching the worst case for the three applicants who pressed that ground. While the offending was undoubtedly serious, having regard to the breadth of conduct covered by s 112(3) and the range of sentences in comparable cases, the offending fell below that threshold.
On De Jong's subjective circumstances, the Court considered the Fernando principles and the extent of dysfunction and drug use in his background. The Court accepted that the sentencing judge had not adequately engaged with the degree of social deprivation and its contribution to De Jong's offending.
The Court also found that the commencement date for Zechel's sentence had been fixed in error and that the correct commencement date should have been 20 September 2012, not 10 November 2012.
Orders Made
• Appeal allowed. Both offenders re-sentenced to non-parole period of 2 years with an additional term of 1 year and 4 months.
• Appeal allowed. Re-sentenced to non-parole period of 5 years and 3 months with an additional term of 1 year and 9 months.
• Appeal dismissed.
• Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that s 112(3) of the Crimes Act 1900 captures a wide range of conduct, and a sentencing court must carefully calibrate where on that range the particular offending falls before characterising it as approaching the worst case.
- A finding that offending is "close to" a worst case is a significant sentencing determination that must be supported by proper comparison with the breadth of offending the provision encompasses, not simply by reference to the gravity of the conduct in isolation.
- Where an offender is Aboriginal and has been exposed to significant social dysfunction, youth disadvantage, and early drug use, the R v Fernando principles require the sentencing court to engage meaningfully with the extent to which those circumstances contributed to the offending, not merely to acknowledge them in passing.
- An error in fixing the commencement date of a sentence is a discrete and correctable error, available to be remedied on appeal regardless of whether the main ground of manifest excess succeeds.
- Comparable sentence decisions form an important reference point when assessing manifest excess, and the Court's detailed schedule of analogous s 112(3) cases illustrates the significance of systematic comparison across the available range.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 105A(1), 112(3)
- Crimes Amendment (Reckless Infliction of Harm) Act 2012 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54B(4)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- R v Fernando (1992) 76 A Crim R 58
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Blackwell v R [2011] NSWCCA 93; 81 NSWLR 119
- Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
- Kentwell v The Queen [2014] HCA 37
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Aslett v R [2012] NSWCCA 235
- AB v R [2014] NSWCCA 339
- Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284
- Gray v R [2007] NSWCCA 366
- Little v R [2010] NSWCCA 210
- Marshall v R [2007] NSWCCA 24
- Micklesson v R [2009] NSWCCA 61
- Milane v R [2006] NSWCCA 281
- R v Baghdadi [2008] NSWCCA 239
- R v Chaaban [2006] NSWCCA 107
- R v Cheh [2009] NSWCCA 134
- R v Dole; R v Nguyen [2010] NSWCCA 101
- R v Huynh [2005] NSWCCA 220
- R v Van Rysewyk [2008] NSWCCA 130