Citation: Banks v R [2018] NSWCCA 41
Court: NSW Court of Criminal Appeal
Date: 21 March 2018
Judges: Simpson JA, R A Hulme J, Hidden AJ
Background
The applicant was an inmate at Parklea Correctional Centre serving a lengthy sentence when, in July 2015, he stabbed a fellow inmate with a improvised prison weapon known as a "shiv." A co-offender had first pushed the victim against a wall and punched him repeatedly. The applicant then stabbed the victim once above the hip, handing the weapon to another inmate who disposed of it. The victim was hospitalised overnight and discharged in a stable condition.
The applicant later admitted his involvement and explained that he believed the victim had previously committed a home invasion at his partner's home. He pleaded guilty in the District Court to reckless wounding in company under s 35(3) of the Crimes Act 1900, which carries a maximum sentence of 10 years and a standard non-parole period of 4 years.
The District Court sentenced him to 4 years and 6 months imprisonment, with a non-parole period of 3 years and 3 months, to commence on 31 December 2025 when his existing sentence would expire. The sentence was therefore wholly accumulated (added on top of) the sentences he was already serving. He sought leave to appeal.
Legal Issues
- Whether the sentencing judge erred in assessing the offence as falling within the mid-range of objective seriousness
- Whether the sentencing judge erred in imposing a sentence wholly consecutive with the existing sentences the applicant was serving
- Whether the sentencing judge erred in failing to find special circumstances that would justify departing from the standard ratio between non-parole period and total sentence length
Decision
Objective seriousness: The Court of Criminal Appeal affirmed the mid-range assessment. The attack was planned and motivated by revenge, the victim was defenceless at the time, and the co-offender had "softened him up" beforehand. While the wound was not severe and did not target a vital organ, the surrounding circumstances supported the finding. Critically, the Court emphasised that a challenge to a sentencing judge's assessment of objective gravity requires identification of specific legal error, not merely a competing assessment that could arguably have been made.
Starting point and the plea discount: Although the Court upheld the mid-range finding, it concluded the sentencing judge's undiscounted starting point of 6 years was too high relative to the maximum of 10 years. The Court substituted a starting point of 5 years, applied the 25% utilitarian discount for the guilty plea, and arrived at a head sentence of 3 years and 9 months with a non-parole period of 2 years and 9 months.
Full accumulation: The Court found that wholly accumulating the sentence onto the existing lengthy sentences produced a disproportionate relationship between the effective non-parole period and the overall head sentence. This was the operative error warranting resentencing. The Court noted that preserving an appropriate proportion requires a significant extension of the existing non-parole period to reflect the criminality involved, but does not necessitate full accumulation.
Re-sentence: To achieve a proper proportion, the Court backdated the new head sentence to commence on 31 March 2024, making it wholly concurrent with the existing overall sentence. However, it maintained the non-parole period expiring on 30 December 2026, which extended the applicant's existing effective non-parole period by one year. The resulting proportion of effective non-parole period to overall sentence was approximately 80%, which the Court accepted as appropriate in the circumstances.
Orders Made
- Leave to appeal granted
- Appeal allowed
- District Court sentence quashed
- Applicant sentenced to imprisonment with a non-parole period of 2 years and 9 months, commencing 31 March 2024 and expiring 30 December 2026
- Balance of term of 1 year, commencing 31 December 2026 and expiring 30 December 2027
- Eligible for release on parole on 31 December 2026
Key Takeaways
- A challenge to a sentencing judge's assessment of objective seriousness requires more than pointing to an arguably different assessment; specific error of the kind identified in House v The King must be established before an appellate court will intervene.
- Wholly accumulating a new sentence upon lengthy existing sentences can constitute sentencing error where it produces a disproportionate relationship between the effective non-parole period and the overall head sentence.
- The Court of Criminal Appeal confirmed that several approaches are available to achieve an appropriate proportion between non-parole period and total sentence, including backdating the commencement of the new sentence to create concurrent running while still extending the effective non-parole period.
- Motivations such as revenge, protection of reputation, or perceived self-help cannot mitigate the objective seriousness of violent offences committed in custody, consistent with the principle that violence and disorder between prisoners will not be tolerated.
- Where a starting point, though defensible in its qualitative characterisation, sits too high against the statutory maximum, the resulting sentence may still warrant appellate correction even if no discrete legal error in the gravity assessment itself is established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35, 59
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 56
Cases:
- Jinnette v R [2012] NSWCCA 217
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- R v Jeremiah [2016] NSWCCA 241
- Salafia v R [2015] NSWCCA 141
- House v The King (referenced in the context of appellate error principles)
- Ali v R [2010] NSWCCA 35
- Mulato v R [2006] NSWCCA 282