Citation: Al Saadi v R [2017] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 26 May 2017
Judges: Macfarlan JA; Latham J (primary reasons); Campbell J
Background
The applicant pleaded guilty to one count of specially aggravated detention for advantage, whilst in company and inflicting actual bodily harm, under s 86(3) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment. The offending involved the applicant and two others luring a 16-year-old victim to an isolated riverbank location and subjecting him to a prolonged assault lasting up to an hour. The assault included punching, kicking, striking with tree branches, and the application of a lit cigarette to the victim's body by the co-accused Jafar.
The applicant, who was 20 years old at the time, admitted to kicking the victim between 20 and 30 times as hard as he could, and to restraining the victim during parts of the assault. He was arrested shortly afterwards and cooperated with police. He also pleaded guilty and agreed to give evidence against Jafar.
The sentencing judge imposed 3 years and 3 months imprisonment, with a non-parole period of 1 year, 7 months and 15 days. A combined discount of 35 per cent was applied: 10 per cent for the utilitarian value of the guilty plea and 25 per cent for future assistance to authorities. The applicant then sought leave to appeal against that sentence.
Legal Issues
- Whether the sentencing judge applied an inadequate discount for the guilty plea, given that the plea also enabled the applicant's evidence to be used against a co-accused
- Whether the sentence was disproportionate to the applicant's role in the offence relative to the ringleader
- Whether the sentencing judge erred in placing the offending at the upper end of the mid-range of objective seriousness, particularly by taking into account the cigarette burns inflicted by Jafar rather than the applicant
Decision
On the discount for the plea: The applicant argued that the utilitarian value of the guilty plea should have been assessed at a higher rate because the plea's timing allowed the Crown to use his evidence at Jafar's trial, effectively doubling its benefit. Latham J rejected this as contrary to principle and unsupported by authority. Sections 22 and 23 of the Crimes (Sentencing Procedure) Act 1999 create distinct and separate bases for discounts: s 22 addresses the utilitarian benefit of a plea, and s 23 addresses assistance to authorities. Collapsing the two would constitute impermissible double-dipping.
The Court also noted that counsel who had appeared at sentencing appeared again on the appeal, despite having himself urged a combined discount of 35 per cent below, which was the very figure the judge accepted. The applicant received the benefit he had sought at first instance, and the Court saw no reason why he should not be bound by that conduct.
On the applicant's role and objective seriousness: The applicant argued that the sentencing judge had erroneously inflated the objective seriousness of the offence by taking into account Jafar's act of burning the victim with a cigarette, conduct the applicant said he had not foreseen. However, the applicant had been sentenced on the basis of participation in a joint criminal enterprise and his counsel conceded, when pressed, that the applicant was culpable for all acts carried out within that enterprise. The Court found the attempt to quarantine the cigarette burns from that enterprise was inconsistent with the applicant's own plea and the agreed facts.
The sentencing remarks, delivered ex tempore, were found to reflect a thorough and considered approach to both objective and subjective factors. The references to the cigarette burns were appropriate to describe the nature and cruelty of the overall offending and did not impermissibly elevate the objective gravity of the applicant's individual conduct. Leave to appeal was refused on all grounds.
Orders Made
- Leave to appeal against sentence refused
Key Takeaways
- The Court of Criminal Appeal confirmed that the utilitarian value of a guilty plea under s 22 and the discount for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 serve distinct policy purposes and cannot be merged or aggregated to inflate either component.
- A submission that a plea's timing amplified its utilitarian value because it enabled the offender's evidence against a co-accused was rejected as an attempt at impermissible double-dipping between two separate statutory regimes.
- Where an applicant received the precise discount that their own counsel had advanced at first instance, the Court of Criminal Appeal treated that applicant as bound by that position on appeal.
- Under the doctrine of joint criminal enterprise, a participant is culpable for all acts carried out in the course of the enterprise by any participant, regardless of whether that specific act was foreseen by the applicant personally.
- No error was established in a sentencing judge's characterisation of an offence as objectively serious where the agreed facts described a prolonged assault involving multiple methods of violence, multiple perpetrators, a vulnerable victim, and an element of cruelty.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) s 86
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 22, 23
Cases:
- R v Thompson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Dib [2003] NSWCCA 117
- R v Robert Borkowski [2009] NSWCCA 102; 197 A Crim R 1
- R v Stambolis [2006] NSWCCA 56; 160 A Crim R 580
- R v Cartwright (1989) 11 NSWLR 243
- R v XX [2017] NSWCCA 90