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Court of Criminal Appeal 12 October 2016

Marial v R

[2016] NSWCCA 234

Assault & violence

Citation: Marial v R [2016] NSWCCA 234
Court: Court of Criminal Appeal, New South Wales
Date: 12 October 2016
Judge(s): Payne JA, Fagan J, N Adams J

Background

The appellant pleaded guilty in the Local Court to one count of recklessly wounding a person in company, contrary to s 35(3) of the Crimes Act 1900 (NSW), which carries a maximum penalty of ten years imprisonment and a standard non-parole period of four years. The offence occurred in July 2014 when the appellant, then aged 21, participated with three others in a sustained, unprovoked attack on a stranger in Guildford. The victim was stabbed in the cheek with a ballpoint pen and then repeatedly punched and kicked, including while on the ground, before eventually taking refuge in his apartment block while the attack continued.

The appellant was sentenced in the District Court on 12 June 2015 to a non-parole period of 3 years 6 months and a balance of term of a further 3 years 6 months, with the sentence backdated to the date of arrest. He applied to the Court of Criminal Appeal for leave to appeal against the sentence.

The co-offender, Akot, had contested the charge at trial, faced an offence with a higher maximum penalty (wounding in company with intent to rob), and received an undiscounted non-parole period 10 months longer than the starting point used for the appellant.

  • Whether the sentencing judge fell into error in fixing the balance of term, resulting in a total sentence that was disproportionate to the objective seriousness of the offence
  • Whether, after allowing a 25% discount for an early guilty plea, the balance of term should have been reduced so as not to exceed the non-parole period
  • Whether the sentence was inconsistent with that imposed on the co-offender in a manner giving rise to a legitimate sense of grievance (the parity principle)

Decision

Fagan J, with whom Payne JA and Adams J agreed, found that the sentencing judge had erred in fixing the balance of term. After applying the 25% discount for the early guilty plea, the resulting balance of term was disproportionately long relative to the non-parole period. This constituted a specific error of principle warranting intervention.

On parity, Fagan J found no legitimate grievance arose from the comparison with Akot's sentence. Akot had not pleaded guilty, faced a higher maximum penalty, and his undiscounted non-parole period was only 10 months greater than the appellant's undiscounted starting point. The differential reflected the marginally greater objective seriousness of Akot's offence, which included an attempted robbery element.

The Court resentenced the appellant by maintaining the same non-parole period of 3 years 6 months but significantly reducing the balance of term from 3 years 6 months to 1 year 10 months. This brought the overall sentence into proper proportion with the non-parole period, accounting for the early guilty plea discount and the commencement date of 28 July 2014.

On the subjective circumstances, Fagan J noted that the appellant's criminal history (commencing at age 20 and including offending while on a supervised bond), his limited and self-centred expressions of remorse, and his apparent minimisation of responsibility afforded him little mitigation. The appellant's high blood alcohol reading on the night did not excuse his conduct.

Orders Made

  • Leave to appeal granted
  • Sentence imposed by Culver DCJ on 12 June 2015 quashed
  • In lieu thereof, the appellant sentenced to imprisonment comprising a non-parole period of 3 years 6 months commencing 28 July 2014 and expiring 27 January 2018, and a balance of term of 1 year 10 months commencing 28 January 2018 and expiring 27 November 2019
  • The appellant eligible for release on parole at the expiration of the non-parole period

Key Takeaways

  • A sentencing error in fixing the balance of term can constitute sufficient error to justify appellate intervention, even where the non-parole period itself is not challenged.
  • The parity principle requires a co-offender to demonstrate a legitimate sense of grievance; a difference in sentence reflecting distinct charges, different maximum penalties, and an absence of a guilty plea does not ordinarily give rise to such a grievance.
  • Under s 35(3) of the Crimes Act 1900 (NSW), acting in company is the gravamen of the offence: the element reflects the particular danger and intimidation a group attack creates for a lone victim and justifies a relatively high maximum penalty.
  • An early guilty plea discount of 25% applied by the sentencing court was upheld on appeal; however, the discount must flow consistently through both the non-parole period and the balance of term to avoid a disproportionate overall sentence.
  • Where an offender's expressed remorse is directed primarily at personal consequences rather than harm to the victim, and is contradicted by statements made to a psychologist, a sentencing court is entitled to treat that remorse as minimal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 35(3) (reckless wounding in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- AI v R; R v SB and AI [2011] NSWCCA 95
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- Chen v R [2013] NSWCCA 116
- Graham v R [2009] NSWCCA 212
- Hammond v R [2015] NSWCCA 89
- McGeown v R [2014] NSWCCA 314
- Mulato v R [2006] NSWCCA 282
- R v Maea [2011] NSWDC 215
- TYN v R [2009] NSWCCA 146
- Veen (No 2) v R (1988) 164 CLR 465; [1988] HCA 14