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7
Court of Criminal Appeal 7 March 2018

Ngati v R

[2018] NSWCCA 32

Assault & violenceFraud & dishonestyFirearms & weapons
CRIME APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: [2018] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 7 March 2018
Judges: Payne JA; Garling J; Hidden AJ

Background

The applicant was sentenced in the District Court following his conviction by jury on four counts of obtaining property by deception under s 192E of the Crimes Act 1900 (NSW). He had also pleaded guilty, at the commencement of two earlier trials, to assault occasioning actual bodily harm and possession of an unregistered firearm.

The offences arose from two separate criminal episodes involving different victims. In one incident, the victim was forcibly removed from his car, taken into a house, and his bank card details obtained under duress, resulting in four unauthorised withdrawals totalling $2,400. The assault and firearm offences formed part of the broader surrounding criminality.

The sentencing judge imposed an aggregate sentence of five years' non-parole period plus an additional term of 18 months under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), commencing 11 November 2015. Indicative sentences were identified for each offence. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by imposing an aggregate sentence that exceeded the sum of the individual indicative sentences
  • Whether the sentencing judge erred by accumulating the indicative sentences in fixing the aggregate sentence
  • Whether the aggregate sentence was manifestly excessive

Decision

Issue 1: Aggregate exceeding sum of indicative sentences

Payne JA, with whom Garling J and Hidden AJ agreed, found that the aggregate sentence did not in fact exceed the sum of the indicative sentences. There was, at most, a small degree of accumulation between the obtaining-by-deception counts. The sentencing judge was not required to specify precisely how much each indicative sentence was to be accumulated. To impose that requirement would undermine one of the core purposes of aggregate sentencing: removing the need for a cumbersome "cascading stairway" sentencing structure when the totality principle requires some accumulation.

Issue 2: Accumulation of indicative sentences

The court held it was open to the sentencing judge to accumulate the indicative sentences in the way she did. The three distinct episodes of criminal conduct (the deception counts, the assault, and the firearm offence) warranted a degree of accumulation. The degree of accumulation applied fell within the sentencing judge's acceptable discretion, and no error was demonstrated.

Issue 3: Manifest excess

The court rejected the submission that the sentence was manifestly excessive. The aggregate sentence was backdated to account for approximately 13 months of pre-sentence custody and ran only partially concurrently with a pre-existing 18-month non-parole period for a police pursuit offence. The court noted the applicant's extensive criminal record (eight prior terms of full-time imprisonment), poor prospects of rehabilitation, late guilty pleas on two counts, the involvement of two separate victims, and the seriousness of each offence. General and specific deterrence were legitimate and appropriately weighted considerations. The sentence was held to be well within the range of the sentencing discretion and was neither unreasonable nor plainly unjust.

Orders Made

  • The suppression order of 5 February 2018 prohibiting publication of the applicant's name was discharged; the applicant is to be referred to by his name, Anthony Ngati, not by the pseudonym "AN"
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not required to specify the precise degree of accumulation applied to each indicative sentence; requiring such precision would undermine the efficiency purpose of aggregate sentencing.
  • Where multiple distinct criminal episodes are being sentenced together, some accumulation of indicative sentences is permissible and may be appropriate to reflect the totality of the offending.
  • In dismissing the manifest excess ground, the court affirmed that the relevant inquiry is whether the aggregate sentence is unreasonable or plainly unjust, not whether a different combination of individual sentences might have been constructed.
  • Suppression and pseudonym orders do not persist automatically on appeal; where no basis for continuation is established, the Court of Criminal Appeal will discharge them.
  • An applicant's extensive prior custodial history, poor rehabilitation prospects, and failure to plead guilty at an early stage are all legitimately weighty factors in aggregate sentencing, and courts are entitled to give emphasis to general and specific deterrence in such circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Firearms Act 1996 (NSW), s 7(1)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Dimian v R [2016] NSWCCA 223
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hughes v R [2018] NSWCCA 2
- JM v R [2014] NSWCCA 297
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Obeid v R [2017] NSWCCA 221
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64