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Court of Criminal Appeal 7 March 2016

Bajouri v R

[2016] NSWCCA 20

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE VICTIM IMPACT STATEMENT APPEAL AGAINST SENTENCE FRESH EVIDENCE

Citation: Bajouri v R [2016] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 7 March 2016
Judges: Johnson J, Button J, Fagan J

Background

The appellant pleaded guilty in the District Court to intentionally causing grievous bodily harm and common assault arising from an incident at a Liverpool hotel in May 2012. He had attacked a stranger without warning, punching him to the ground and then stomping on his face while the victim lay unconscious on his back. The injuries were catastrophic, including multiple fractures across virtually every bone of the victim's face, requiring surgery, hardware permanently implanted in the skull, and a six-week liquid diet during recovery.

Judge Haesler SC sentenced the appellant to a non-parole period of five years with a balance of term of three years for the more serious charge, with a concurrent fixed term of three months for the assault. The plea was entered on the day the trial was due to commence.

The appellant sought leave to appeal against the severity of the sentence on two grounds: that the sentencing judge wrongly treated the victim impact statement as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and that Facebook images discovered after sentencing constituted fresh evidence warranting a reduced sentence.

  • Whether the sentencing judge erred by treating the victim impact statement as an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999, given that the statement was the only material relied upon for that finding.
  • Whether post-sentencing Facebook images of the victim constituted fresh evidence whose absence at sentencing produced a miscarriage of justice.

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's approach to the victim impact statement. The statement described severe and lasting physical and psychological consequences: prolonged pain, depression, anxiety, loss of independence, relocation of the family home, significant weight loss, and ongoing symptoms including blackouts, memory loss and anticipated further surgery. The Court found that the statement bore directly on the seriousness of the harm occasioned, which is a legitimate aggravating consideration, and that the sentencing judge was entitled to have regard to it in the way he did.

On the second ground, the Court considered the long-established principles governing the admission of fresh evidence on sentence appeals. The relevant Facebook images, discovered by the appellant after sentencing, purportedly showed the victim engaging in physical activities and were apparently intended to suggest that his injuries were not as severe or lasting as described. The Court applied the test from R v Goodwin and the more restrictive formulation confirmed in R v Fordham and Bland v R: fresh evidence will generally not be received unless its absence produced a miscarriage of justice, meaning the evidence must have real significance capable of affecting the outcome.

The Court rejected the Facebook evidence on that basis. Whether or not the appellant could satisfy the threshold requirement about the circumstances of late discovery, the images were not of sufficient weight to affect the sentence. The Court declined to receive the material and dismissed the second ground.

In concluding, the Court observed that neither specific error had been made out. The appellant had not advanced a manifestly excessive ground, and the Court noted that such a ground would in any event have failed, given the brutality of the assault, the gravity of the victim's injuries, and the appellant's substantial record of alcohol-fuelled violence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A victim impact statement describing serious and lasting physical and psychological harm can properly be considered when a sentencing court assesses the gravity of an offence, including in the context of aggravating factors under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.
  • Fresh evidence on a sentence appeal will not be received unless it is shown that its absence at the original sentencing produced a miscarriage of justice, requiring the evidence to have real significance capable of affecting the outcome: R v Goodwin; R v Fordham; Bland v R.
  • Post-sentencing material suggesting that a victim's ongoing impairment may have been overstated does not automatically qualify as fresh evidence warranting reception, particularly where it lacks sufficient weight to alter the sentencing result.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a plea entered on the day of trial, combined with a serious record of similar offending and the extreme brutality of an assault, can properly result in a sentence that allows little room for leniency despite favourable subjective circumstances.
  • No miscarriage of justice arises from the mere fact that evidence was unavailable at sentencing; the evidence must be capable of making a real difference to the sentence actually imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33(1)(b), s 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(g)

Cases
- Bland v R [2014] NSWCCA 82; (2014) 241 A Crim R 51
- EG v R [2015] NSWCCA 21
- Gallagher v The Queen (1986) 160 CLR 392
- R v De Marco (NSWCCA, 20 November 1995, unreported)
- R v Fordham (1997) 98 A Crim R 359
- R v Goodwin (1990) 51 A Crim R 328
- R v Tuala [2015] NSWCCA 8