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Court of Criminal Appeal 7 December 2018

Tohifolau v R

[2018] NSWCCA 283

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE ASSAULT UPON FELLOW INMATE IN PRISON LATE GUILTY PLEA 5% DISCOUNT IN SENTENCE FOR EARLY PLEA PAROLE PERIOD OF 9 YEARS

Citation: Tohifolau v R [2018] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 7 December 2018
Judges: Basten JA; Schmidt J; Fagan J

Background

The appellant was a 20-year-old man of Pacific Islander descent who, on 1 August 2015, assaulted a fellow inmate at Wellington Correctional Centre. He entered the victim's cell, directed the cellmate to leave, and beat the victim severely about the head. The victim was left unconscious on the floor and was not discovered for over an hour.

The injuries were catastrophic. The victim sustained a fractured skull, brain haemorrhage, and seizures, and spent six months in intensive care followed by a prolonged rehabilitation admission. He was left with permanent brain damage requiring full-time care for the rest of his life.

The appellant pleaded guilty well into a judge-alone trial. The sentencing judge (Hunt DCJ in the District Court) allowed a 5% utilitarian discount for the late plea, found no remorse, and imposed a head sentence of 12 years and 4 months with a non-parole period of 9 years. The appellant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge impermissibly took the appellant's criminal record into account when assessing the objective seriousness of the offence.
  • Whether the sentencing judge, having found special circumstances, failed to give effect to his stated intention to structure the non-parole period at approximately 70% of the head sentence.
  • Whether the overall sentence was manifestly excessive.

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's treatment of the criminal record. The Court found that, on a fair reading of the remarks on sentence, the judge had used the criminal record only for permissible purposes, such as assessing prospects of rehabilitation and the relevance of prior imprisonment, and had not improperly elevated the objective seriousness of the offence by reference to it.

On the second ground, the Court noted that the non-parole period of 9 years represented approximately 73% of the head sentence of 12 years and 4 months. While this exceeded the 70% ratio the judge had expressed as his intention, the Court found the difference was not material and did not constitute appealable error. Even if some error could be identified in the ratio, the Court stated that no lesser sentence was warranted in law given the gravity of the offending.

On manifest excess, the Court applied the principle from Dinsdale v The Queen that a sentence is manifestly excessive only if it is unreasonable or plainly unjust, or so far outside the available range that error can be inferred. The Court found the sentence fell within that range, having regard to the premeditated and sustained nature of the assault, the permanent and devastating injuries inflicted, the appellant's callous indifference to the victim's condition (demonstrated by recorded conversations four months after the assault), the late guilty plea, and the complete absence of remorse.

The Court declined to reduce the sentence on any of the three grounds and upheld the orders made below.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may refer to an offender's criminal record when assessing rehabilitation prospects and the effect of prior imprisonment, without that reference being treated as improperly aggravating the objective seriousness of the offence.
  • A minor departure from a stated ratio between the non-parole period and head sentence does not automatically constitute appealable error, particularly where no lesser sentence is warranted in law on the facts.
  • Under the test for manifest excess established in Dinsdale v The Queen, an appellate court will intervene only where the sentence is unreasonable, plainly unjust, or so far outside the available range that error must be inferred. The threshold is high.
  • A 5% utilitarian discount for a guilty plea entered late in a judge-alone trial was held to be the maximum appropriate in the circumstances, particularly where the plea was characterised as "an acknowledgement of the inevitable" rather than an expression of remorse.
  • Recorded statements showing callous indifference to the victim's serious and permanent injuries, made months after the offence, provided a proper basis for the sentencing court to find no remorse and to impose sentence accordingly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33(1)(b) (causing grievous bodily harm with intent; maximum 25 years; standard non-parole period 7 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hughes v R [2018] NSWCCA 2
- AM v R [2012] NSWCCA 203
- R v Jeremiah [2016] NSWCCA 241