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Court of Criminal Appeal 24 October 2018

Byron v R

[2018] NSWCCA 239

Assault & violenceDrugs
CRIMINAL LAW SENTENCE APPEAL ASSAULT OCCASIONING ACTUAL BODILY HARM SUPPLYING A PROHIBITED DRUG STREET LEVEL DEALER

Citation: Byron v R [2018] NSWCCA 239
Court: Court of Criminal Appeal, NSW
Date: 24 October 2018
Judges: Hoeben CJ at CL, Price J, Davies J

Background

The applicant pleaded guilty in the Local Court to two offences committed on consecutive nights in January 2017: assaulting a taxi driver who pursued him for an unpaid fare, causing a broken tooth and laceration, and supplying 19 grams of cocaine. The District Court sentenced him to an aggregate term of one year and seven months' imprisonment, to be served by way of an intensive correction order (ICO). Two further offences involving possession of cocaine and dealing with the proceeds of crime were taken into account on a Form 1.

The applicant, who represented himself on appeal, challenged the sentence on several grounds. He disputed the accuracy of the pre-sentence and ICO assessment reports, argued that supervision conditions were unnecessary because he had already undergone relevant treatment, and contended that the overall sentence was manifestly excessive. At the hearing, the Court of Criminal Appeal explained to him that a sentence appeal requires demonstrating error by the sentencing judge.

  • Whether the pre-sentence report and ICO assessment contained inaccuracies that undermined the sentencing judge's findings about the applicant's character and understanding of responsibility.
  • Whether the ICO supervision conditions were appropriate given treatment the applicant had already undertaken during the bail period.
  • Whether the aggregate sentence of 19 months served by way of ICO was manifestly excessive.

Decision

On the first two grounds, the Court found no identifiable error in the sentencing judge's approach. The pre-sentence report was tendered without objection at the sentence proceedings, and the applicant was legally represented at that time but did not give evidence. Any dispute about the accuracy of that material could have been addressed through sworn testimony; the applicant's failure to give evidence at first instance limited his ability to challenge the factual basis on appeal.

On the claim that supervision conditions were unnecessary, the Court gave this short shrift. The applicant's assertion that he had already completed relevant treatment did not establish any error in the ICO conditions as imposed by Community Corrections. The conditions reflected the court's assessment of what was appropriate at the time of sentencing.

On manifest excess, the Court applied the established appellate principles, including those confirmed in Hili v The Queen and Hughes v R: appellate intervention is only warranted where the difference from an appropriate sentence is so marked that some misapplication of principle must be inferred, or where the sentence is so far outside the available range as to indicate error. The Court found that the assault was serious, having been committed against a vulnerable victim pursuing a legitimate request. The drug supply was not for personal use but involved street-level dealing for profit, evidenced by the quantity of cocaine, multiple phones, and significant cash.

The Court also noted that the applicant's submissions focused on his current rehabilitation while overlooking the other sentencing purposes of punishment, denunciation, victim recognition, and deterrence. In fact, the Court observed that a term of full-time imprisonment would not have fallen outside the appropriate range for the two offences. The ICO was, in that sense, already a favourable outcome.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A self-represented appellant who did not give evidence at first instance faces significant difficulty challenging the factual findings underpinning a sentencing judge's assessment of character or responsibility.
  • The Court of Criminal Appeal confirmed that manifest excess requires more than a subjective sense of severity: the sentence must fall so far outside the available range that error is the only inference, or there must be a discernible misapplication of principle.
  • In dismissing the appeal, the Court noted that an ICO rather than full-time custody was itself a favourable outcome for the applicant, reducing the persuasive force of a manifest excess argument.
  • Post-sentence rehabilitation, while relevant, does not override the other statutory purposes of sentencing such as punishment, denunciation, and deterrence.
  • Where a prohibited drug supply involves multiple phones, significant cash, and commercial motivation rather than personal use, a sentencing court is entitled to treat the offending as more serious street-level dealing rather than incidental supply.

Legislation and Cases Referenced

Cases:
- Hughes v R [2018] NSWCCA 2
- Khoury v R [2011] NSWCCA 118
- R v Fordham (1997) 98 A Crim R 359
- Zreika v R [2012] NSWCCA 44
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Legislation: No specific legislation was identified in the provided text.