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Court of Criminal Appeal 7 September 2018

Sefian v R

[2018] NSWCCA 194

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL ONLY SMALL ADJUSTMENT TO NON PAROLE PERIOD MADE ERROR ESTABLISHED NEED TO RESENTENCE

Citation: Sefian v R [2018] NSWCCA 194
Court: NSW Court of Criminal Appeal
Date: 7 September 2018
Judges: Hoeben CJ at CL; Price J; Harrison J

Background

The applicant was convicted after trial of two serious offences: robbery in company causing grievous bodily harm (maximum 25 years, standard non-parole period 7 years) and aggravated break and enter and commit a serious indictable offence (maximum 20 years, standard non-parole period 5 years). The offending involved the applicant and an unidentified co-offender posing as energy company workers to gain access to the home of an elderly couple. The applicant subjected the female victim to a sustained and severe beating, while threatening the disabled male victim at gunpoint. The female victim suffered permanent blindness in one eye, a fractured cheekbone, broken ribs, subdural haematoma, and lasting facial disfigurement.

The sentencing judge imposed an aggregate term of 15 years imprisonment with an 11-year non-parole period, backdated to 24 April 2013. The non-parole period represented 73.3% of the total term. The sentencing judge had found special circumstances warranting a departure from the statutory ratio of non-parole period to head sentence, but the actual adjustment made was only three months.

The applicant filed his notice of appeal approximately two and a half years out of time, and accordingly required leave to appeal out of time before the Court of Criminal Appeal could consider his single ground of appeal.

  • Whether the Court should grant an extension of time to file the notice of appeal, given a delay of approximately two and a half years
  • Whether the sentencing judge erred by finding special circumstances but making only a minimal adjustment to the non-parole period, thereby failing to give proper effect to that finding
  • Whether, if error was established, resentencing would produce a lesser sentence than that already imposed

Decision

On the extension of time application, the Court exercised its discretion under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) to grant leave. The explanation offered was not wholly satisfactory, but the Court considered there was sufficient substance in the ground of appeal to warrant granting the extension. The delay arose from a miscommunication between the applicant and his former solicitors, who had failed to file any notice despite the applicant believing they were attending to the matter.

On the substantive ground, the Court accepted that error was established. The sentencing judge had found special circumstances, which ordinarily calls for a meaningful adjustment to the ratio of non-parole period to head sentence. The three-month reduction was inconsistent with that finding, and the Court was not satisfied the sentencing judge had intended to make only such a small adjustment.

However, having identified error and proceeded to resentence, the Court concluded that no lesser sentence was warranted in law. Hoeben CJ at CL found that, having regard to the grave objective seriousness of the offending and the relative paucity of mitigating circumstances, an appropriate sentence would in fact be higher than that which the sentencing judge had imposed. The existing parole period was already substantial, and there was no basis in the sentencing judge's findings or the evidence to conclude that a longer parole period would produce a materially better rehabilitation outcome.

Harrison J added that in cases involving long head sentences, minor adjustments to the parole-to-non-parole ratio are often of little practical significance in terms of achieving rehabilitation outcomes. His Honour considered the nominated parole period was entirely appropriate given the applicant's particular circumstances.

Orders Made

  • Leave to appeal against sentence out of time granted
  • Leave to appeal granted
  • The appeal dismissed

Key Takeaways

  • A finding of special circumstances at sentencing requires the court to make a meaningful adjustment to the statutory ratio of non-parole period to head sentence; a reduction of only three months was found to be inconsistent with such a finding, establishing appellate error.
  • In dismissing the appeal, the Court of Criminal Appeal applied the principle that even where sentencing error is established, an appeal will be dismissed if resentencing would produce a sentence no more favourable to the applicant than the one originally imposed.
  • The prospects of success on the substantive ground of appeal is a relevant consideration when the Court exercises its discretion to grant an extension of time to file a notice of appeal under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW).
  • Where a head sentence is substantial, the practical utility of extending the parole period is a legitimate consideration; a longer parole period does not automatically improve rehabilitation prospects if the existing period is already adequate for that purpose.
  • A delay arising from a misunderstanding between an applicant and former solicitors can support an extension of time application, even where the explanation is not entirely satisfactory, provided there is some merit in the ground relied upon.

Legislation and Cases Referenced

Legislation
- Children's (Criminal Proceedings) Act 1987 (NSW), s 15
- Crimes Act 1900 (NSW), ss 98, 105A, 112(2)
- Crimes (Administration of Sentences) Regulation 2008 (NSW), cl 228
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)
- Criminal Appeal Act 1912 (NSW), s 10(1)(b)

Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Hornhardt v R [2017] NSWCCA 186
- Lehn v R [2016] NSWCCA 255
- MD v R [2015] NSWCCA 37
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
- Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Allen v R [2015] NSWCCA 113; AM v R [2012] NSWCCA 203; BR v R [2015] NSWCCA 255; Caristo v R [2011] NSWCCA 7; CM v R [2013] NSWCCA 341; Collier v R [2012] NSWCCA 213; DG v R [2017] NSWCCA 139; Heron v R [2006] NSWCCA 215; Jiang v R [2010] NSWCCA 277; Jinnette v R [2012] NSWCCA 217; Sabongi v R [2015] NSWCCA 25; Soames v R [2014] NSWCCA 158; Trad v R [2009] NSWCCA 56