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Court of Criminal Appeal 27 August 2018

Melaisis v R

[2018] NSWCCA 184

Assault & violenceTheft & property
CRIME APPEAL AGAINST SENTENCE WHERE HISTORY OF STEROID ABUSE WHERE LOW RISK OF RE OFFENDING PAROLE PERIOD OF ONE YEAR AND 10 MONTHS

Citation: Melaisis v R [2018] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 27 August 2018
Judge(s): Macfarlan JA, Hoeben CJ at CL, Fagan J

Background

The applicant was convicted after a jury trial in the District Court at Campbelltown of aggravated robbery under s 95 of the Crimes Act 1900 (NSW). The offence arose from a confrontation in a shopping centre car park in December 2015, when the applicant forcibly seized a mobile phone from a man who had been trying to photograph the applicant's vehicle registration plate during a dispute over a parking space.

During the struggle, the applicant twisted the complainant's thumb, causing ligament damage that required physiotherapy over approximately two months. The applicant later discarded the phone, which the complainant was able to retrieve undamaged using a tracking application. The applicant had pleaded guilty at the outset of trial to an alternative charge of assault occasioning actual bodily harm, but the Crown did not accept that plea in discharge of the indictment. The sole live issue at trial was whether the applicant had intended to permanently deprive the complainant of the phone.

The trial judge sentenced the applicant to three years' imprisonment with a non-parole period of one year and ten months. The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that two additional errors had been made in the sentencing process.

  • Whether the sentencing judge erred by failing to give any weight to the degree of pre-trial disclosure made by the applicant
  • Whether the applicant was denied procedural fairness by the manner in which the sentencing judge relied on facts from prior offences committed in 2008
  • Whether the head sentence of three years with a non-parole period of one year and ten months was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding the sentence was manifestly excessive in the circumstances. The Court took into account a combination of mitigating factors: the offence was unpremeditated and of short duration, the phone was recovered undamaged, the applicant faced a low assessed risk of reoffending, he was in stable employment, and he lived in a positive family environment. While a prior conviction for assault from 2008 meant the applicant was not entitled to leniency on that account, his otherwise favourable subjective circumstances warranted a reduced sentence.

The Court also rejected the sentencing judge's finding of "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which had been used to justify a balance of term (the period after release on parole) greater than one-third of the non-parole period. The sentencing judge had cited two reasons: first, accumulation of sentences, which the Court of Criminal Appeal found was not a meaningful basis for the finding; and second, the need to assist the applicant's return to employment, which the Court found was unsupported by evidence. The pre-sentence report had specifically noted that the applicant was unlikely to benefit from supervision given his low reoffending risk.

Having rejected the special circumstances finding, the Court resentenced the applicant to a non-parole period of one year and three months, with a balance of term fixed at exactly one-third of that period, being five months. This produced a total sentence of one year and eight months for the aggravated robbery charge.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 11 August 2017 for aggravated robbery (count 1) quashed
  • In lieu thereof, the applicant sentenced to a non-parole period of 1 year and 3 months commencing 14 June 2017 and expiring 13 September 2018, with a balance of term of 5 months expiring 13 February 2019 (total sentence of 1 year and 8 months)

Key Takeaways

  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) must be grounded in evidence; bare references to "accumulation" or anticipated employment benefits, without evidential support, are insufficient to justify extending the balance of term beyond one-third of the non-parole period.
  • The Court of Criminal Appeal treated the combination of an unpremeditated, brief offence, recovery of undamaged property, low assessed reoffending risk, and stable personal circumstances as collectively warranting a meaningfully lower sentence than the one imposed at first instance.
  • Under s 95 of the Crimes Act 1900 (NSW), the aggravated form of robbery carries a maximum of 20 years' imprisonment, but the objective and subjective features of a particular offence will substantially shape where a sentence falls within that range.
  • Normally, the Court of Criminal Appeal will adopt a sentencing judge's finding of special circumstances; this case illustrates that the Court will depart from that approach where the stated reasons do not withstand scrutiny.
  • Prior convictions for assault, even where they remove an entitlement to leniency, do not alone determine the appropriate sentence where other subjective factors are strongly favourable.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(1), 95, 95(2)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases cited: No specific cases were cited in the portions of the judgment provided.