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Court of Criminal Appeal 3 March 2017

R v MM; R v WK

[2017] NSWCCA 19

Assault & violenceFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL SENTENCING WHETHER MANIFESTLY INADEQUATE GANGLAND CRIME OFFENDING OF A SERIOUS NATURE

Citation: R v MM; R v WK [2017] NSWCCA 19
Court: Court of Criminal Appeal (NSW)
Date: 3 March 2017
Judges: Bathurst CJ (with Rothman J and Garling J agreeing)

Background

The two respondents, MM and WK, were members of the Brothers for Life (BFL) Blacktown Chapter, a criminal group. Between mid-2013 and November 2013, both men participated in a series of extremely serious offences, including multiple shootings in which firearms were discharged with intent to cause grievous bodily harm, aggravated home invasions, and participation in a criminal group. The offences included what the court described as gangland-style attacks, among them the shooting at a Chokolatta Café in which WK was one of the actual shooters.

Both respondents pleaded guilty and provided assistance to authorities. The sentencing judge applied substantial discounts: 55% for MM and 60% for WK. The sentencing judge also found special circumstances in both cases, adjusting the ratio between the non-parole period and the total term. MM received an aggregate sentence of 7 years, with a non-parole period of 4 years. WK received the same aggregate structure.

The Crown appealed both sentences on the sole ground that they were manifestly inadequate. At the time of the offences, MM was aged approximately 22 to 23 and WK was 18. Both came from deprived backgrounds, and WK had a low level of intellectual disability. Each had been subject to non-exculpatory duress from the Qaumi brothers, the leaders of the BFL chapter.

  • Whether the aggregate sentences imposed on MM and WK were manifestly inadequate, having regard to the objective seriousness of the offences
  • Whether the indicative sentences assigned to individual counts were themselves inadequate, such that the resulting aggregate was infected by error
  • Whether the sentencing judge gave appropriate weight to the substantial discounts for assistance and guilty pleas, the respondents' youth and deprived backgrounds, the duress each faced, and WK's intellectual disability
  • Whether leniency in a sentence, without more, crosses the threshold of manifest inadequacy sufficient to warrant intervention on Crown appeal

Decision

Bathurst CJ found that the individual offences were, without question, extremely serious. Several of the indicative sentences assigned to individual counts were assessed as lenient, and in some instances arguably too lenient. However, the Chief Justice noted that the sentencing judge had to balance a range of significant mitigating factors: both respondents were relatively young, had deprived backgrounds, and were subject to real (though non-exculpatory) duress from the BFL leadership. These factors did not excuse the conduct but remained relevant to moral culpability.

The substantial discounts for assistance to authorities and guilty pleas also weighed heavily. The Court acknowledged the importance of protecting the integrity and utility of such discounts. An aggregate sentence for MM of approximately 15 years and 6 months before discount, and for WK of 17 years and 6 months before discount, were both described as lenient. However, leniency alone does not satisfy the high threshold required for a Crown appeal to succeed.

The Court confirmed that the test on a Crown appeal is manifest inadequacy, not mere leniency. After taking into account all the relevant subjective circumstances and the discounts applied, Bathurst CJ was not satisfied that either sentence crossed that threshold. The Crown's appeal against both respondents was therefore dismissed.

Orders Made

  • Crown appeal against the sentence imposed on MM dismissed
  • Crown appeal against the sentence imposed on WK dismissed

Key Takeaways

  • A sentence that is lenient, even substantially so, does not automatically meet the threshold of manifest inadequacy required for a Crown appeal to succeed on sentence.
  • Where offenders cooperate with authorities and plead guilty, courts will protect the integrity of the resulting discounts; the Court of Criminal Appeal treated the large discounts (55% and 60%) as a legitimate feature of the sentencing exercise rather than as a source of error.
  • Non-exculpatory duress (duress that does not amount to a defence) remains a relevant mitigating factor going to moral culpability, even where the underlying offending is objectively serious.
  • Youth, deprived background, and intellectual disability are recognised mitigating factors in NSW sentencing, consistent with the High Court's approach in Bugmy v The Queen, and their combined weight can support lenient outcomes without those outcomes being manifestly inadequate.
  • In dismissing both appeals, the Court of Criminal Appeal reaffirmed that the appellate standard on Crown sentence appeals requires more than a finding that the sentencing judge was generous; identifiable error or a sentence outside the permissible range is required.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A(1)(a), 59(2), 93GA(1B), 93T(1), 99(1), 113(3)
- Crimes (Sentencing) Procedure Act 1999 (NSW)
- Firearms Act 1996 (NSW), ss 7(1), 7A(1), 50(a)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Franklin v R [2013] NSWCCA 122
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51
- LG v R [2012] NSWCCA 249
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- PD v R [2012] NSWCCA 242
- Postiglione v The Queen (1997) 189 CLR 295
- R v Hammoud (2000) 118 A Crim R 66; [2000] NSWCCA 540
- Melbom v R [2011] NSWCCA 22
- R v Rae [2013] NSWCCA 9
- R v Tuala [2015] NSWCCA 8
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64