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Court of Criminal Appeal 18 March 2016

R v Meatuai

[2016] NSWCCA 42

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING

Citation: R v Meatuai [2016] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 18 March 2016
Judges: Hoeben CJ at CL, Fullerton J, RS Hulme AJ

Background

The respondent pleaded guilty on the first day of trial to two counts of aggravated break and enter under s 112(2) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. Both offences arose from a single incident on 5 December 2013, when the respondent and another man entered a dwelling and subjected its two occupants to a sustained, violent assault.

The male occupant was punched repeatedly to the face and body with great force. When the female occupant attempted to intervene, she was punched multiple times, pushed into a glass wardrobe with sufficient force to shatter it, dragged by her hair, and then kicked and punched as she lay on the floor. Both victims sustained significant injuries.

The sentencing judge at first instance found the offending to be "well above the mid-range" for offences of this type, but imposed concurrent sentences of four years and six months on each count, with non-parole periods of three years. The effective total sentence was five years with a non-parole period of three years and six months. The Crown appealed, submitting the sentences were manifestly inadequate.

  • Whether the sentences imposed by the sentencing judge were manifestly inadequate in light of his own finding of objective seriousness.
  • Whether the sentencing judge properly reflected the standard non-parole period and the principles under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) in the sentences he imposed.
  • Whether the Court of Criminal Appeal's residual discretion to decline to re-sentence, even upon finding error, should be exercised in the respondent's favour.
  • Whether, and to what extent, the sentences for two serious offences arising from the same incident should be accumulated.

Decision

All three judges agreed that the Crown appeal should be allowed. The sentencing judge had expressly found the offending to be well above the mid-range of seriousness, yet the sentences he imposed were inconsistent with that finding. The Court found that this constituted an error of sentencing discretion, in that the sentences failed to reflect the judge's own assessment of objective gravity and did not adequately account for the sentencing purposes of denunciation and specific deterrence under s 3A of the Crimes (Sentencing Procedure) Act 1999.

The Court also addressed the respondent's submission that identifying the error in itself could be sufficient to dispose of the Crown appeal, without increasing the sentence. Fullerton J rejected this approach, finding no evidence from the respondent that warranted exercising the residual discretion in his favour. The increase was necessary to avoid sentences inconsistent with established sentencing principles, particularly given the serious and unprovoked violence inflicted on two victims in their own home.

On the question of structure, the three judges divided. RS Hulme AJ proposed dismissing the appeal in respect of one count while allowing it on the other, keeping both sentences effectively concurrent. Fullerton J, with whom Hoeben CJ at CL agreed, favoured allowing the appeal on both counts and accumulating the sentences by 12 months, with the sentence on the second count (concerning the female victim) marginally higher to reflect the greater severity of that assault. Fullerton J noted the need to avoid double punishment, given that the element of break, enter and steal was common to both counts.

RS Hulme AJ also observed a practical difficulty with the concept of a "mid-range" for offences under s 112(2). Because those offences are defined by reference to a broad class of underlying serious indictable offences, ranging enormously in gravity, identifying a meaningful mid-point in the abstract is, in his Honour's view, practically impossible.

Orders Made

By majority (Fullerton J and Hoeben CJ at CL):

  • The Crown appeal is allowed.
  • The sentence on Count 1 is quashed and substituted with a non-parole period of 3 years and 6 months commencing 5 December 2013, with a balance of term of 2 years expiring 4 June 2019.
  • The sentence on Count 2 is quashed and substituted with a non-parole period of 3 years commencing 4 June 2015, with a balance of term of 2 years expiring 4 June 2020.
  • The total effective sentence is 6 years and 6 months, commencing 5 December 2013 and expiring 4 June 2020, with an effective non-parole period of 4 years and 6 months, with the respondent eligible for parole consideration from 4 June 2018.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a sentencing judge expressly finds offending to be "well above the mid-range of seriousness," the sentence imposed must meaningfully reflect that finding. A failure to do so constitutes an error in the exercise of the sentencing discretion.
  • Identifying sentencing error on a Crown appeal does not automatically justify declining to re-sentence. The respondent must put on evidence capable of supporting the exercise of the residual discretion in their favour; absent such evidence, the Court will ordinarily proceed to re-sentence.
  • Where two serious assaults arise from the same incident but involve distinct victims, some degree of accumulation of sentences is appropriate to reflect the separate criminality, moderated by totality and the need to avoid double punishment for elements common to both counts.
  • RS Hulme AJ noted that identifying the "middle range of seriousness" for offences under s 112(2) of the Crimes Act 1900 is practically impossible in the abstract, given the extraordinarily broad range of underlying indictable offences that may be committed upon breaking and entering premises.
  • A six-month overall increase to sentences for serious, random, and unprovoked violence against two victims in their home was characterised by RS Hulme AJ as not only a breach of applicable sentencing principles, but also as an affront to the administration of justice capable of undermining public confidence in the criminal justice system.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 5D, s 54A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- CMB v The Attorney General (NSW) [2015] HCA 9; 243 A Crim R 282
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Regina v Dunn [2004] NSWCCA 41
- R v Feuerstein [2015] NSWCCA 82
- R v JP [2015] NSWCCA 267
- R v Van Ryn [2016] NSWCCA 1
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465