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61
Court of Criminal Appeal 2 August 2019

R v Fangaloka

[2019] NSWCCA 173

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING ROBBERY IN COMPANY APPLICATION OF HENRY CRITERIA CAUSING ACTUAL BODILY HARM WHOLLY CONCURRENT SENTENCES

Citation: R v Fangaloka [2019] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 2 August 2019
Judge(s): Basten JA at [1]; Johnson J at [77]; Price J at [78]

Background

The respondent pleaded guilty to robbery in company and assault occasioning actual bodily harm in company, arising from a confrontation at a Dulwich Hill unit in June 2016. The respondent had accompanied a younger acquaintance who sought to recover perceived losses from a man whose stolen property had led to the acquaintance's arrest. During the confrontation, the respondent picked up a Stanley knife belonging to the victim, held it close to the victim's neck, and punched him twice. The acquaintance separately punched a second occupant multiple times; the respondent bore joint liability for that assault.

In April 2019, the District Court sentenced the respondent to two years imprisonment for the robbery in company and 12 months for the assault, both to be served by way of intensive correction order. Although the judge expressed an intention to accumulate the sentences by six months, the orders as drawn were entirely concurrent.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW) on three specific grounds and on the basis of manifest inadequacy.

  • Whether the sentencing judge applied a mistaken view of the facts in assessing the objective seriousness of the offences
  • Whether the sentencing judge misapplied the principle in The Queen v De Simoni by treating the use of a knife as irrelevant to objective seriousness simply because no armed robbery charge was laid
  • Whether the sentences as imposed were entirely concurrent, contrary to the judge's expressed intention to accumulate them
  • Whether the sentences were manifestly inadequate
  • How s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) operates, including the meaning of "community safety" as the "paramount consideration" when imposing an intensive correction order, and how that interacts with the other statutory purposes of sentencing

Decision

The respondent conceded all three specific errors. The judge had misidentified the victim of the assault offence (attributing the punches to the robbery victim rather than to the second occupant), had incorrectly treated the knife as irrelevant to objective seriousness by misapplying De Simoni, and had failed to give effect to her own intention to accumulate the sentences. The Court of Criminal Appeal found that these errors, taken together, warranted resentencing rather than merely technical correction of the commencement date.

On the De Simoni point, the Court confirmed that a sentencing judge may take into account the use of a weapon as a feature aggravating objective seriousness even where the offender is not charged with the more serious armed offence. The De Simoni principle prohibits sentencing an offender for a more serious offence than the one charged; it does not prevent relevant factual circumstances from informing the assessment of seriousness within the charged offence.

The Court then examined s 66 of the Crimes (Sentencing Procedure) Act 1999 in depth, engaging critically with aspects of the reasoning in R v Pullen [2018] NSWCCA 264. The Court held that "community safety" as the paramount consideration under s 66 does not mean that the other statutory purposes of sentencing in s 3A (such as punishment, deterrence, and rehabilitation) are irrelevant or subordinate. Rather, those purposes must be weighed, with community safety operating as an overriding constraint: a court cannot impose an intensive correction order if doing so would be inconsistent with community safety. The Court declined to read s 66 as collapsing all sentencing considerations into a single community safety inquiry.

On resentencing, the Court imposed a total effective term of 2 years and 6 months, with the assault sentence accumulating by six months on the robbery sentence, both to be served by intensive correction order. The Court was satisfied that, on the resentencing exercise, community safety did not preclude the making of an intensive correction order.

Orders Made

• Intensive correction order subject to standard conditions with an additional condition that the offender abstain from illegal drugs
• Adjustment of commencement date for the assault offence to 2 October 2020

Key Takeaways

  • The De Simoni principle does not prevent a sentencing court from treating the use of a weapon as an aggravating feature when assessing objective seriousness, provided the offender is not thereby punished as if convicted of a more serious offence than the one charged.

  • Where a sentencing judge expresses a clear intention to accumulate sentences but the orders as drawn are entirely concurrent, the error is more than merely technical and may require resentencing rather than simple adjustment of a commencement date.

  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration for an intensive correction order, but the Court of Criminal Appeal held that this does not render the other statutory purposes of sentencing in s 3A irrelevant: they remain part of the sentencing exercise, subject to community safety operating as an overriding constraint.

  • A factual misidentification of the victim when assessing objective seriousness constitutes an error capable of vitiating a sentence, particularly where multiple offences with different victims are being sentenced together.

  • In dismissing the Pullen approach insofar as it suggested community safety effectively absorbed all other sentencing considerations, the Court of Criminal Appeal clarified the proper analytical framework for intensive correction orders under the amended legislation.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 8, 9, 66, 67, 68; Pts 5, 7, 8
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 4, 97
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Weapons Prohibition Act 1998 (NSW), Sch 1

Cases
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Pullen [2018] NSWCCA 264
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Davies v R [2019] NSWCCA 45
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Douar v The Queen (2005) 159 A Crim R 154; [2005] NSWCCA 455
- R v Carroll; Carroll v The Queen (2010) 77 NSWLR 45; [2010] NSWCCA 55
- Liao v R [2007] NSWCCA 132
- R v Zamagias [2002] NSWCCA 17
- R v Dodd (1991) 57 A Crim R 349
- R v Geddes (1936) 36 SR (NSW) 554