Citation: Assi v R (No 2) [2016] NSWDC 268
Court: District Court of NSW
Date: 29 January 2016
Judge(s): Neilson DCJ
Background
The appellant had been convicted of two offences of dishonestly obtaining a financial advantage by deception in the Local Court at Kogarah in December 2014. The two offences involved sums of $137,819.70 and $183,066.79. The Local Court imposed an effective head sentence of two years and three months with an 18-month non-parole period.
The appellant sought leave to withdraw his guilty pleas, which was refused (see Assi v Regina [2015] NSWDC 343). He then pursued a severity appeal in the District Court, arguing the sentences were excessive in light of circumstances that had changed or become better understood since the Local Court proceedings.
By the time of the District Court sentencing appeal, the appellant's physical and mental health had deteriorated significantly, spinal surgery was anticipated, and he had provided substantial assistance to authorities. A suppression order applied to the details of that assistance and to related exhibit material.
Legal Issues
- Whether the sentences imposed by the Local Court were excessive in light of fresh evidence, including the appellant's worsened health and his assistance to authorities
- Whether home detention was an appropriate sentencing disposition under s 78 of the Crimes (Sentencing Procedure) Act 1999 given the combination of health, safety, and caring circumstances
- Whether the purposes of sentencing, including general and personal deterrence and retribution, could be adequately served by a home detention order rather than full-time custody
Decision
Neilson DCJ accepted that the appellant's circumstances had changed materially since the Local Court sentencing. Medical evidence established deteriorating spinal conditions requiring surgery, a diagnosis of anxiety disorder (described as either panic disorder or post-traumatic stress disorder), and depressive illness. The appellant was also the primary carer for his elderly mother, providing approximately two hours of care almost every day.
The court placed considerable weight on the assistance the appellant had given to authorities. That assistance was described as being of significant value. Oral evidence from a NSW Police officer, given in closed court, persuaded his Honour that placing the appellant in full-time custody in a Corrective Services facility would create a grave risk to his personal safety, as well as risks to the safety of members of his family.
The Crown did not oppose a home detention outcome. Neilson DCJ was satisfied that the sentencing objectives of general deterrence, personal deterrence, and retribution would be fully served by home detention, given the totality of the appellant's circumstances. A suitability assessment completed in January 2016 confirmed the appellant was appropriate for a home detention order.
On the sequence one offence, the court substituted a three-year good behaviour bond with supervision conditions. On the more serious sequence two offence, his Honour imposed a term of 15 months imprisonment with a 12-month non-parole period, to be served by way of home detention.
Orders Made
- Sequence 1 (obtaining $137,819.70 by deception): Local Court sentence set aside; appellant ordered to enter a three-year good behaviour bond from 29 January 2016, with conditions including good behaviour, residence at a specified address, notification of any change of address, and supervision by the Probation and Parole Service
- Sequence 2 (obtaining $183,066.79 by deception): Local Court sentence set aside; appellant imprisoned for 15 months with a non-parole period of 12 months, sentence to be served by way of home detention
- Exhibit 13 directed to be resealed, accessible only to the sentencing judge or a judge of the Court of Criminal Appeal
Key Takeaways
- The District Court confirmed that fresh evidence of significantly worsened health, including anticipated spinal surgery and diagnosed psychiatric conditions, can constitute a proper basis for substituting a less restrictive sentencing disposition on a severity appeal.
- Where an offender's assistance to authorities generates a credible and serious risk to personal safety in custody, that risk is a relevant and potentially decisive factor in the choice between full-time custody and an alternative disposition such as home detention.
- Home detention can satisfy the sentencing purposes of general deterrence, personal deterrence, and retribution in fraud matters involving large sums, particularly where the combination of health, safety, and personal circumstances is compelling.
- The role of an offender as primary carer for a dependent family member, here an 88-year-old mother with multiple medical conditions, was identified as a relevant sentencing consideration.
- Under s 78 of the Crimes (Sentencing Procedure) Act 1999, a court must be satisfied by a suitability assessment before making a home detention order; in this case, the assessment confirmed suitability and the appellant signed the required undertaking before the order was made.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 78, 9
Cases:
- Assi v Regina [2015] NSWDC 343 (prior District Court decision on application for leave to withdraw guilty pleas)