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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: Court of Criminal Appeal
Date: 18 March 2016
Judge(s): Hoeben CJ at CL, Fullerton J, RS Hulme AJ

Background

The respondent pleaded guilty to two charges of breaking and entering a dwelling and committing a serious indictable offence, contrary to section 112(2) of the Crimes Act 1900 (NSW). Both charges arose from a single incident on 5 December 2013, when the respondent and a co-offender entered the victims' home and the respondent carried out severe, unprovoked physical assaults on two occupants in their own bedroom. The respondent was intoxicated by methamphetamine at the time.

The sentencing judge in the District Court imposed concurrent sentences of 4 years and 6 months (non-parole period of 3 years) on each count, accumulated by only 6 months, producing an effective total term of 5 years with a non-parole period of 3 years and 6 months. The Crown appealed on the ground that the sentences were manifestly inadequate.

Legal Issues

  • Whether the sentences imposed by the sentencing judge were manifestly inadequate, having regard to the finding that the offending was "well above the mid-range" of seriousness.
  • Whether accumulating the sentences by only 6 months was justified where a second, more serious assault was committed on a second victim.
  • Whether the Court's residual discretion should be exercised to increase the respondent's sentence, rather than simply identifying the error.
  • How the principle against double punishment for a common element, as stated in Pearce v The Queen, applied to the structuring of sentences.

Decision

Ground 1: Whether the individual sentences were manifestly inadequate

RS Hulme AJ assessed each assault as falling at or very close to the top of the range of offences of assault occasioning actual bodily harm under section 59(1) of the Crimes Act. The breaking and entering, the use of the victims' home, and the involvement of a co-offender all required further reflection in the sentences. However, his Honour concluded that the individual sentences of 4 years and 6 months, although very lenient, could not be characterised as manifestly inadequate when considered in isolation (at [41]).

Fullerton J, by contrast, accepted the Crown's submission that the sentences on each count failed to reflect the sentencing judge's own finding of offending "well above the mid-range for an offence of this kind." Her Honour was satisfied the sentencing discretion miscarried and the sentences were erroneously lenient (at [5], [8]).

Ground 2: Whether the accumulation of sentences was manifestly inadequate

The Court was unanimous that accumulating the sentences by only 6 months was manifestly inadequate. RS Hulme AJ noted the principle from Regina v Dunn that there is a distinct difference between assaulting one victim and assaulting two, and that the small increase could not be justified given principles of totality or the seriousness of the second assault (at [42]). He described the inadequacy as an affront to the administration of justice that risked undermining public confidence in the criminal justice system (at [44]).

Ground 3: Exercise of the residual discretion

Fullerton J rejected the respondent's submission that identifying the error, without increasing the sentence, was sufficient to achieve the purpose of Crown appeals. She was satisfied the Crown had addressed the residual discretion arguments, and that declining to intervene would produce sentences inconsistent with the need for specific deterrence and denunciation of serious violence by intruders in people's homes (at [9]-[11]).

Issue: Structuring of re-sentence and the Pearce principle

Both Fullerton J and RS Hulme AJ identified that the sentencing judge had failed to account for the common element of breaking and entering shared by both counts, contrary to the principle in Pearce v The Queen that an offender must not be punished twice for a common element (at [33]). They differed, however, on precisely how the re-sentence should be structured. The majority (Hoeben CJ at CL and Fullerton J) preferred Fullerton J's structure, under which both sentences were quashed and fresh sentences imposed on each count, with the sentence for the second count (the assault on Ms Vickers) marginally less than that for the first, accumulated by 12 months (at [3]-[4]). RS Hulme AJ proposed a different structure that dismissed the appeal on the second count and increased only the first count's sentence, but the majority did not adopt that approach.

Note on assessing "middle range" under section 112(2)

RS Hulme AJ observed that determining where the "middle range of seriousness" falls for offences under section 112(2) is practically impossible, given the breadth of serious indictable offences the provision encompasses, ranging from assault occasioning actual bodily harm through to detention for advantage and grievous bodily harm with intent. Although both counsel accepted the sentencing judge's finding of "well above the mid-range," RS Hulme AJ expressed considerable doubt whether that finding was correct in the abstract (at [28]-[30]).

Orders Made

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

Key Takeaways

  • Accumulation of sentences by only 6 months where an offender committed serious, unprovoked assaults on two separate victims in the same incident was held to be manifestly inadequate, regardless of whether the individual sentences, considered alone, were within range (at [42]).

  • Under the principle in Pearce v The Queen, where two charges share a common element (here, the single act of breaking and entering), concurrent sentences are not the appropriate mechanism for avoiding double punishment; the sentences themselves must be structured to reflect the common element (at [33]).

  • The Court of Criminal Appeal confirmed that determining the "middle range of seriousness" for offences under section 112(2) of the Crimes Act 1900 is practically impossible, given that the provision captures serious indictable offences spanning an enormous range of gravity (at [28]-[30]).

  • In exercising the residual discretion on a Crown appeal, merely identifying the sentencing error without increasing the sentence was insufficient where the existing sentences were inconsistent with established principles of specific deterrence and denunciation of serious violence against victims in their own homes (at [9]-[11]).

  • Serious physical violence inflicted by an intruder on multiple victims in their home, combined with a substantial prior record of violence and drug-related offending and limited subjective mitigation, required sentences that reflected the full weight of the relevant sentencing objectives, including general deterrence, specific deterrence, community protection, and denunciation (at [34]-[38]).

Legislation and Cases Referenced

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

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 610; 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