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Court of Criminal Appeal 9 March 2018

Alesbhi v R; Esbhi v R

[2018] NSWCCA 30

Assault & violencePublic order & justice offences
CRIME APPEAL AGAINST SENTENCE SEVERITY AFFRAY FAIL TO APPEAR RANGE OFFENCE

Citation: Alesbhi v R; Esbhi v R [2018] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 9 March 2018
Judge(s): Simpson JA, R A Hulme J, Hidden AJ

Background

Two co-offenders were convicted of affray arising from a violent group attack on two victims at their home in Granville in March 2013. The attack involved approximately ten men armed with baseball bats, fence palings, a metal pole, a knife, and a Taser-like device, and resulted in injuries to both victims requiring hospitalisation. Both victims were discharged from hospital on the night of the attack, and the judge found no evidence of long-term physical injury.

After the sentencing hearing concluded in September 2016, both applicants fled Australia, flying first to Indonesia and then to the Middle East. They returned voluntarily approximately six months later on 9 March 2017, at which point they were taken into custody. Evidence before the Court indicated they had been told by an interpreter, following the hearing, that they faced a 10-year custodial sentence.

In the District Court, Judge Colefax SC imposed aggregate sentences of 6 years imprisonment on each applicant, covering both the affray and the failure to appear under the Bail Act 2013. Both applicants sought leave to appeal against the severity of those sentences in the Court of Criminal Appeal.

  • Whether the trial judge erred in finding both the affray and the failure to appear offences were above the mid-range of seriousness
  • Whether the judge erred by treating planning as a statutory aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the judge erred by treating the presence of children as an aggravating factor under s 21A(2)(ea) of that Act, where there was no evidence children were actually present
  • Whether the correct procedure was followed in the District Court for instituting the failure to appear charge, and whether a certificate under s 166 of the Criminal Procedure Act 1986 was appropriate
  • Whether the voluntary return from overseas should have been taken into account in sentencing for the failure to appear offence
  • Whether the District Court was entitled to impose a sentence for the failure to appear offence that, when accumulated with the affray sentence, exceeded the Local Court's jurisdictional maximum

Decision

Planning as an aggravating factor: The Court found that the trial judge would have erred had he applied s 21A(2)(n) of the Crimes (Sentencing Procedure) Act (which applies to "pre-planned" offences in a specific statutory sense) because the applicants were with ten other armed men during a melee rather than acting as the planners of a deliberate operation. However, the judge was entitled to take into account "limited planning" as a general sentencing consideration under s 21A(1)(c) of that Act. On this basis, the ground was rejected.

Children as an aggravating factor: The Court identified an error in the trial judge's reliance on s 21A(2)(ea), which treats the presence of children as an aggravating circumstance. There was no evidence before the sentencing court that children were actually present during the affray.

Failure to appear procedure: This ground of appeal was withdrawn. The Court nonetheless expressed doubt about whether the use of a certificate under s 166 of the Criminal Procedure Act 1986 was the appropriate mechanism for bringing the failure to appear charge in the District Court, without deciding the point.

Voluntary return: The Court observed that the voluntary return of both applicants from overseas, in the knowledge that authorities were waiting for them, was a relevant mitigating matter in relation to the failure to appear offence. Although the trial judge had not been asked to take it into account, the Court noted it would be considered on resentencing.

Fresh sentences: Because the Court of Criminal Appeal was imposing fresh sentences, it was unnecessary to determine whether the trial judge had erred in classifying the offences as above the mid-range. The Court assessed the affray as warranting a starting sentence of 4 years for each applicant, reduced by 10 per cent for late guilty pleas to yield sentences of 3 years and 7 months. For the failure to appear, the Court characterised fleeing overseas on the eve of sentencing as a particularly egregious example of the offence, but gave weight to the voluntary return. An indicative sentence of 16 months was reduced by 25 per cent for early guilty pleas to 12 months. Applying totality principles with some notional accumulation, the Court set an aggregate term of 4 years for each applicant.

Orders Made

For both applicants:

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentences imposed in the District Court on 11 May 2017 quashed
  • In lieu, each offender sentenced to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years 6 months, dating from 9 March 2017

Key Takeaways

  • A sentencing court errs if it applies s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act (presence of children as an aggravating factor) without evidence that children were actually present at the time of the offence.
  • Under s 21A(1)(c) of the Crimes (Sentencing Procedure) Act, limited planning may be taken into account as a general sentencing consideration even where the requirements for the specific statutory aggravating factor in s 21A(2)(n) are not met.
  • Fleeing overseas on the eve of sentencing was characterised by the Court of Criminal Appeal as a particularly egregious form of failure to appear, though voluntary return with knowledge that authorities were waiting was identified as a relevant mitigating circumstance.
  • The Court of Criminal Appeal expressed, without deciding, doubts about whether a certificate under s 166 of the Criminal Procedure Act 1986 was the appropriate vehicle for bringing a failure to appear charge in the District Court.
  • Where the Court of Criminal Appeal conducts a resentencing exercise, it need not resolve whether the trial judge's characterisation of an offence's objective seriousness was itself erroneous, as the fresh sentence displaces the original assessment.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 79(1), 80
- Crimes Act 1900 (NSW), s 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 44(2B), 53A(2)(b), 58(1), 58(3A)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), ss 165(1), 166, 168(3)

Cases:
- AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
- Gore v R; Hunter v R [2010] NSWCCA 330
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Khanwaiz, Shajeel v R; Khanvez, Noman v R; Khanwaiz, Zeeshan v R [2012] NSWCCA 168
- McLaughlin v R [2013] NSWCCA 152
- Moore v R [2016] NSWCCA 185
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
- R v Price [2016] NSWCCA 50
- R v Seymour [2012] NSWSC 1010
- Samuel v R [2017] NSWCCA 239