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Court of Criminal Appeal 20 April 2018

Anae v R

[2018] NSWCCA 73

Assault & violence
CRIME APPEAL AGAINST SENTENCE WHETHER ERROR IN NOT FINDING REMORSE WHETHER LESSER SENTENCE WARRANTED

Citation: Anae v R [2018] NSWCCA 73
Court: Court of Criminal Appeal, NSW
Date: 20 April 2018
Judge(s): Hoeben CJ at CL, Johnson J, Price J

Background

The applicant pleaded guilty in the Local Court to one count of recklessly causing grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW), and maintained that plea in the District Court. The offence arose from an incident in the early hours of 1 May 2016, when the applicant struck the victim with an open hand after a dispute concerning the victim's relationship with the applicant's cousin. The victim fell and struck his head on the roadway, suffering skull fractures, intracranial haemorrhage, brain contusions, cervical spine injury, and an extremely severe traumatic brain injury. He was hospitalised for over a month.

The applicant had consumed approximately twelve beers before the incident and later admitted to police that he intended to confront the victim about the relationship. After the assault, he fled the scene and lied to police before attending a station the following day.

Judge Colefax SC sentenced the applicant to four years and six months imprisonment, with a non-parole period of three years and four months, after applying a 25 per cent discount for the utilitarian value of the guilty plea. The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge's conduct during proceedings gave rise to a reasonable apprehension of bias
  • Whether the judge erred by not finding special circumstances to justify a different ratio between the non-parole period and the balance of term
  • Whether the judge erred by not finding that the applicant had demonstrated genuine remorse
  • Whether the overall sentence was manifestly excessive

Decision

Apprehension of bias: The Court rejected this ground. Price J examined the sentencing proceedings and concluded that a fair-minded observer, aware of the relevant context, would not have formed a reasonable apprehension that the judge was biased against the applicant. The conduct complained of did not meet the legal threshold established by the High Court in Antoun v R (2006).

Special circumstances: The Court found no error in the judge's refusal to find special circumstances. The sentencing judge was not required to adjust the standard ratio between the non-parole period and the head sentence, and the material before him did not compel such a finding.

Remorse: The Court was not persuaded, on the balance of probabilities, that the applicant had demonstrated genuine remorse. Price J noted that the applicant did not give evidence before the sentencing judge. While the forensic psychologist's report recorded that the applicant expressed regret "in hindsight," and character testimonials referenced remorse, the Court found this insufficient to establish genuine remorse as a mitigating factor. Specific deterrence was given weight alongside the general deterrence and denunciation recognised by the sentencing judge.

Manifest excess: The Court reviewed comparative cases and sentencing statistics and found they did not support a conclusion that the sentence was manifestly excessive. Exercising its own independent discretion, the Court concluded that both the head sentence of four years and six months and the non-parole period of three years and four months appropriately reflected the criminality involved and the applicant's subjective circumstances. No lesser sentence was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A fair-minded observer must have regard to the full context of sentencing proceedings when assessing whether conduct gives rise to a reasonable apprehension of bias; the threshold is not easily met.
  • Where a defendant does not give evidence at sentencing, assertions of remorse conveyed through a psychologist's report or character testimonials may be insufficient to establish genuine remorse on the balance of probabilities.
  • The Court of Criminal Appeal confirmed that the absence of a finding of special circumstances does not itself constitute error; the material before the sentencing court must compel such a finding.
  • In dismissing the appeal, the Court exercised its independent sentencing discretion and found that a sentence of four years and six months, with a non-parole period of three years and four months, was appropriate for a guilty plea to recklessly causing grievous bodily harm that resulted in an extremely severe traumatic brain injury.
  • Comparative sentencing statistics and case references do not automatically establish manifest excess; the Court examines whether the sentence appropriately reflects the specific criminality and subjective circumstances before it.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases:
- Antoun v R [2006] HCA 2; 224 ALR 51
- Ellis v R [2015] NSWCCA 262
- Hudd v R [2013] NSWCCA 57
- Imbornone v R [2017] NSWCCA 144
- Jiang v R [2010] NSWCCA 277
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Pattalis v R [2013] NSWCCA 171
- R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Sutton [2004] NSWCCA 225
- Tarrant v R [2018] NSWCCA 21