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Court of Criminal Appeal 16 December 2016

Rudolf v R

[2016] NSWCCA 313

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE TIME CUSTODY ERROR NOT DEMONSTRATED

Citation: Rudolf v R [2016] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 16 December 2016
Judge(s): Meagher JA, Johnson J, Rothman J

Background

The appellant was a 24-year-old man convicted of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900. In March 2015, he approached his former football coach at a Sydney hotel and, without warning, struck the victim twice with powerful punches. The victim, who was 30 years older, substantially shorter, and lighter than the appellant, suffered a hairline jaw fracture and a torn ligament in his right knee.

The appellant was sentenced in the Sydney District Court in June 2016 to a total term of two years' imprisonment, comprising an 18-month non-parole period followed by a six-month balance of term. He sought leave to appeal, arguing the sentencing judge erred by failing to consider alternatives to full-time custody.

  • Whether the sentencing judge erred by failing to give adequate consideration to alternatives to full-time imprisonment before imposing a custodial sentence for assault occasioning actual bodily harm.

Decision

The Court of Criminal Appeal refused leave to appeal, with all three judges agreeing that no error had been demonstrated. Johnson J (with whom Meagher JA and Rothman J agreed) found that the sentencing judge's remarks, read as a whole, indicated she had applied the process of instinctive synthesis required by Markarian v The Queen, weighing all relevant factors before arriving at the appropriate sentence.

The sentencing judge had made several adverse findings against the appellant. She rejected his account of provocation, found his conduct was unprovoked and only minimally premeditated, and concluded that he had treated the assault as an acceptable way of "teaching a lesson" to the victim. Those findings, combined with the appellant's prior criminal history and the need for both specific and general deterrence, supported the conclusion that full-time imprisonment was the only appropriate outcome.

Johnson J also underlined the objective gravity of the offence. The attack involved two separate punches delivered without warning by a large, young man against an older and much smaller victim, causing significant injuries. A sentence short of full-time custody would not have adequately reflected that gravity or fulfilled the purposes of punishment, as established in Douar v R.

The Court found that the sentencing remarks effectively excluded any foundation for imposing a non-custodial or suspended sentence. The appellant had therefore failed to establish that the sentencing judge overlooked alternatives to full-time custody, and the sole ground of appeal was rejected.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • No error was established where a sentencing judge's remarks, considered as a whole, demonstrated proper application of the instinctive synthesis approach and weighed all relevant factors before imposing a full-time custodial sentence.
  • Under s 59(1) of the Crimes Act 1900, the maximum penalty is five years' imprisonment and there is no standard non-parole period, leaving the sentencing court with broad discretion calibrated to the circumstances of the particular offence.
  • A complete assessment of objective gravity for offences of violence requires consideration of the comparative size and age of the offender and victim, as confirmed by reference to R v Carroll (2010) 77 NSWLR 45.
  • Sentencing remarks that effectively exclude any basis for a non-custodial alternative will satisfy an appellate court that the sentencing judge did turn their mind to such alternatives, even without explicit step-by-step reasoning.
  • In dismissing the appeal, the Court reinforced that unprovoked attacks by a physically dominant offender on a significantly older and smaller victim, causing meaningful bodily harm, may properly attract full-time imprisonment even for a first offence of this kind.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- R v Carroll [2010] NSWCCA 55; 77 NSWLR 45
- McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549
- R v Cousins [2002] NSWCCA 340; 132 A Crim R 444
- R v Zamagias [2002] NSWCCA 17
- Walker v R [2016] NSWCCA 213