Citation: R v Jeremiah [2016] NSWCCA 241
Court: Court of Criminal Appeal, NSW
Date: 2 November 2016
Judges: Meagher JA, Davies and Fagan JJ
Background
The respondent pleaded guilty in the District Court to assault occasioning actual bodily harm in company, an offence committed on 22 October 2014 against a fellow inmate at Parklea Correctional Centre while the respondent was on remand. The assault involved the respondent stomping on the victim's head, including a second time after Corrective Services officers briefly interrupted the attack.
The respondent was already serving sentences for an unrelated group of serious offences committed on 25 September 2013, for which he had been sentenced separately. Those sentences carried non-parole periods expiring on 24 March 2017.
The sentencing judge imposed a sentence for the in-custody assault with a non-parole period commencing 1 January 2016 and expiring 31 January 2017, making it entirely concurrent with the pre-existing sentences. The Crown appealed on the ground that the sentence was manifestly inadequate because the judge failed to accumulate it to any extent upon the existing term.
Legal Issues
- Whether the sentencing judge erred by imposing a sentence wholly concurrent with an existing, unrelated term of imprisonment
- Whether the principle of totality required accumulation where the offences were separate, unrelated, and committed in entirely different circumstances
- Whether general deterrence for offences committed in custody required a degree of accumulation
- How the respondent's sentence should be calibrated against those imposed on co-offenders, having regard to parity
Decision
The Court of Criminal Appeal upheld the Crown appeal, finding the sentence manifestly inadequate. The principle of totality requires that an aggregation of sentences reflect a "just and appropriate measure of the total criminality involved," citing Postiglione v The Queen (1997) 189 CLR 295 and Mill v The Queen (1988) 166 CLR 59. Where offences are entirely separate and unconnected in character and occasion, a fully concurrent sentence fails to reflect that discrete criminality.
The Court rejected the respondent's argument that the absence of the earlier sentencing judge's remarks on sentence created an "evidential vacuum" that hampered the decision on accumulation. The bare facts were sufficient: the in-custody assault occurred inside a prison during remand, while the earlier offences were committed outside prison before arrest. Those circumstances alone were enough to establish entirely separate criminality, and the respondent bore any evidential burden to introduce material suggesting otherwise.
General deterrence for in-custody violence was identified as a particularly important consideration. A wholly concurrent sentence conveys the impression that an inmate may commit further offences while serving a term without material consequence. The Court referred to the principle, drawn from cases including R v Fyffe [2002] NSWSC 751, that courts must impose sentences calculated to deter violence in prison and to afford protection to other inmates.
On resentencing, the Court considered parity with co-offenders. It disagreed with the sentencing judge's view that a co-offender's role was more serious than the respondent's. Both participated in a cowardly group assault, and after applying a 10% discount for the respondent's guilty plea, the Court determined that his sentence should match that imposed on the co-offender: a non-parole period of 1 year 3 months and a balance of term of 5 months, commencing immediately after the expiry of the pre-existing non-parole periods on 24 March 2017.
Orders Made
- The appeal is allowed.
- The sentence imposed on the respondent on 30 June 2016 for assault occasioning actual bodily harm on 22 October 2014 is quashed.
- In lieu thereof, the respondent is sentenced to imprisonment for a non-parole period of 1 year 3 months commencing 25 March 2017 and expiring 24 June 2018, with a balance of term of 5 months commencing 25 June 2018 and expiring 24 November 2018.
Key Takeaways
- A fully concurrent sentence for an offence that is entirely separate and unrelated in character and circumstance to an existing sentence will ordinarily fail the totality principle, which requires that combined sentences reflect the total criminality involved.
- Where the separateness of offences is apparent from basic uncontested facts, the absence of detailed earlier sentencing remarks does not create a barrier to finding that accumulation is warranted; the respondent bears the evidential burden to introduce material suggesting greater concurrency is appropriate.
- The Court of Criminal Appeal confirmed that general deterrence carries particular weight in sentencing for in-custody violence, and that a wholly concurrent sentence undermines both deterrence and public confidence in the administration of justice.
- Under s 56(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a convicted inmate who offends against the person while in custody receives a consecutive sentence unless otherwise ordered; although that provision did not apply to a remand prisoner, the Court noted that full accumulation in this case was consistent with the legislative policy underlying it.
- Parity between co-offenders requires careful comparison of individual roles; in this case, the Court found the respondent's conduct of stomping on an already-impaired victim was no less serious than a co-offender striking first with a weapon.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 59(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 56(2)
Cases
- CMB v Attorney General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Pannowitz v R [2016] NSWCCA 13
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Fyffe [2002] NSWSC 751
- R v Hoskins [2004] NSWCCA 236
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Regina v Wheeler [2000] NSWCCA 34