Citation: R v Dong, Matur; R v Marial; R v Dong, Ayuok; R v Mathiang [2016] NSWCCA 195
Court: Court of Criminal Appeal (NSW)
Date: 2 September 2016
Judge(s): Payne JA; R A Hulme J; Adamson J
Background
Four young men, all members of the Sudanese immigrant community in Australia, pleaded guilty to causing grievous bodily harm with intent, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years. The victim was an elder in the same community, who the offenders believed had assaulted their mothers on separate occasions.
On 25 June 2013, the four men drove to a house where the victim was present, intending (as the sentencing judge found) only to speak with him. When they approached, the victim became aggressive and struck the first blow, arming himself with a stick. The offenders then picked up fence palings from the ground and attacked the victim, overpowering him. After leaving the scene, they returned a short time later and struck the victim again while he was on the ground. The victim suffered depressed skull fractures, a fractured jawbone, and a fractured finger, and spent 13 days in hospital.
In the District Court, the sentencing judge imposed a two-year term of imprisonment on each offender, but suspended execution of each sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), releasing all four on supervised good behaviour bonds. The Crown appealed all four sentences as manifestly inadequate.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the offending as falling at the low end of the range for the offence
- Whether the sentencing judge made a factual error by treating the offenders' return to the scene (the "second phase" of the attack) as motivated by retrieving a mobile phone, a fact not in evidence at sentencing
- Whether the sentences were manifestly inadequate
- Whether, if error was established, the Court of Criminal Appeal should exercise its residual discretion under s 5D of the Criminal Appeal Act 1912 (NSW) to decline to intervene
Decision
Payne JA (with whom Hulme J and Adamson J agreed) found that the sentencing judge had erred in assessing objective seriousness. The error arose in part from the judge's mistaken reliance on a mobile phone retrieval as the explanation for the offenders' return to the scene, a fact drawn from an earlier draft statement of agreed facts that had not been tendered in the sentencing proceedings. The Crown's failure to correct the judge's misapprehension contributed to this error.
Despite identifying error, the Court turned to the residual discretion available under s 5D of the Criminal Appeal Act 1912, which permits the Court to decline to re-sentence even where error is established. The Court noted that all four offenders had made substantial progress toward rehabilitation in the three years since the offending. This was described as a powerful factor weighing against intervention.
The Court also took into account that re-sentencing would have limited utility as guidance for future sentencing judges given the highly specific factual circumstances, and that justice to the individual offenders should not be sacrificed for the purpose of general deterrence guidance where rehabilitation was already well advanced.
Accordingly, while the Court found the sentences were erroneously lenient, it exercised the residual discretion to dismiss the Crown appeals in all four cases without interfering with the suspended sentences.
Orders Made
- Appeal dismissed in each case
Key Takeaways
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The Court of Criminal Appeal confirmed that even where a Crown appeal establishes sentencing error and manifest inadequacy, the residual discretion under s 5D of the Criminal Appeal Act 1912 (NSW) permits the Court to decline to re-sentence, particularly where rehabilitation has progressed significantly in the period since the offending.
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A sentencing court's reliance on facts not in evidence, even where those facts arise from earlier documents on the court file, can constitute error in assessing objective seriousness. The Crown's failure to correct the misapprehension at first instance was identified as a relevant consideration in the exercise of residual discretion.
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In dismissing all four appeals, the Court treated post-sentence rehabilitation as a "powerful factor" capable of outweighing the Court's usual inclination to correct an erroneously lenient sentence, provided the increase warranted would not amount to mere tinkering.
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Where a re-sentence would provide limited broader guidance to future sentencing judges and would come at a significant cost to the individual offenders' prospects of rehabilitation, the residual discretion weighs toward non-intervention.
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Under s 33(1)(b) of the Crimes Act 1900 (NSW), the absence of premeditation, the victim's initiation of violence, and the opportunistic rather than planned nature of the weapons used are capable of placing an offence at the low end of objective seriousness, though the Court found the sentencing judge here assessed that range with insufficient account of the second phase of the attack.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 33(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Cases:
- Amado v R [2011] NSWCCA 197
- BP v R [2010] NSWCCA 159; 201 A Crim R 379
- CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
- Da-Pra v R; R v Da-Pra [2014] NSWCCA 211
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- House v The King (1936) 55 CLR 499
- Mulato v Regina [2006] NSWCCA 282
- R v Hernando [2002] NSWCCA 489; 136 A Crim R 451
- R v Latouff (Court of Criminal Appeal (NSW), Mahoney ACJ, 12 December 1996, unrep)
- RCW v R (No 2) [2014] NSWCCA 190; 244 A Crim R 541
- Regina v Z [2006] NSWCCA 342; 167 A Crim R 436
- Zamagias v Regina [2002] NSWCCA 17