Citation: Suksa-Ngacharoen v Regina [2018] NSWCCA 142
Court: NSW Court of Criminal Appeal
Date: 10 August 2018
Judges: Leeming JA and Bellew J (majority); Wilson J (dissenting on manifest excess)
Background
The appellant, a Thai national with no prior criminal history, was sentenced following guilty pleas to causing grievous bodily harm by explosion (contrary to s 46 of the Crimes Act 1900 (NSW)) and related domestic violence offences including breaching an apprehended domestic violence order. The offending involved a deliberate explosion directed at the victim, who was the appellant's girlfriend, and the consequences for her were described as devastating and permanent.
The sentencing judge imposed a total effective sentence of 19 years imprisonment, with a total effective non-parole period of 14 years and 3 months. The principal sentence for the s 46 offence was 18 years imprisonment, incorporating a 25% discount for the guilty plea, which placed the undiscounted starting point at 24 years imprisonment. The maximum penalty for that offence is 25 years.
The appellant sought leave to appeal on seven grounds, challenging various aspects of the sentencing process including the use of agreed facts, procedural fairness, the assessment of premeditation and objective gravity, findings on remorse and rehabilitation, and manifest excess.
Legal Issues
- Whether the sentencing judge erred in the use of agreed facts and whether a sentencing court is bound by them
- Whether procedural fairness was afforded in the call-up of prior bond breaches
- Whether the sentencing judge correctly assessed the extent of premeditation
- Whether the objective gravity of the offending was correctly assessed
- Whether the findings on remorse and rehabilitation were open on the evidence
- Whether the total sentence of 19 years (with an undiscounted starting point of 24 years for the principal offence) was manifestly excessive, given the favourable subjective findings made
Decision
The Court was unanimous in dismissing grounds 1 to 6. The sentencing judge's approach to agreed facts, procedural fairness, premeditation, objective gravity, and the assessment of remorse was found to disclose no error.
On the question of manifest excess (ground 7), the Court divided. Leeming JA and Bellew J (the majority) held that the sentence was manifestly excessive. They identified an unarticulated error of principle: the sentencing judge had made a series of favourable subjective findings about the appellant (language and cultural difficulties in custody, rehabilitation efforts, absence of prior criminal history, and expressions of genuine sorrow), but those findings were not meaningfully reflected in the sentence actually imposed. With an undiscounted starting point of 24 years out of a maximum of 25 years, the majority concluded that the modest departure from the maximum was irreconcilable with the weight of those favourable findings.
The majority proceeded to resentence the appellant, taking into account updated affidavit evidence of further rehabilitation in custody, which was unchallenged by the Crown. Wilson J dissented on this ground, concluding that the crime was so objectively serious as to place it at the very top of the range, that a stern sentence was warranted, and that the majority's disagreement with the sentencing judge's exercise of discretion did not reach the threshold of manifest excess. Her Honour would have dismissed the appeal entirely.
Orders Made
- Leave to appeal granted (majority)
- Appeal allowed on the ground of manifest excess
- Original sentence set aside
- Appellant resentenced (specific resentencing orders not fully reproduced in the text provided)
Key Takeaways
- The Court of Criminal Appeal confirmed that where discounts for guilty pleas apply, the undiscounted starting point must be examined separately to avoid discounts concealing what would otherwise be a manifestly excessive sentence.
- An unarticulated error of principle can be inferred where a sentencing court makes multiple favourable subjective findings but imposes a sentence so near the maximum that those findings cannot have been meaningfully reflected in the result.
- Sentencing statistics drawn from very small samples carry little weight: the fact that a sentence is the highest in a statistical sample does not, of itself, establish manifest excess, since by definition some case must always occupy that position.
- Wilson J's dissent illustrates that appellate intervention for manifest excess requires more than a different exercise of discretion; the sentence must be so far outside the available range that error is the only available inference.
- Under the manifest excess standard, an appellate court considering resentencing may receive fresh evidence of post-sentence rehabilitation by affidavit, tendered on the "usual basis" described in Betts v The Queen (2016) 258 CLR 420, provided it is untested and unchallenged.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 46
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
Cases
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198
- Jolly v R [2013] NSWCCA 76
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MLP v R [2014] NSWCCA 183
- R v Dodd (1991) 57 A Crim R 349
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Kendall v R [2015] NSWCCA 13
- Porter v R [2008] NSWCCA 145