Citation: Udovcic v R [2019] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 21 August 2019
Judges: Payne JA, Davies J, Hidden AJ (judgment by Hidden AJ, with whom Payne JA and Davies J agreed)
Background
The applicant pleaded guilty in the District Court to two counts arising from a violent home invasion in Burwood in August 2015: assault occasioning actual bodily harm in company (against one victim, Mr Banham) and wounding with intent to cause grievous bodily harm (against another victim, Mr Jenkinson). The applicant and two co-offenders entered the victims' residence armed with a baseball bat, knuckle dusters, and a knife. The applicant struck Mr Jenkinson approximately 21 times with the baseball bat, and later joined his co-offender in continuing to beat Mr Jenkinson while the co-offender stabbed him with knives. Mr Jenkinson's injuries were serious, requiring surgery, a blood transfusion, and hospitalisation for seven days.
The sentencing judge imposed an aggregate term of 10 years' imprisonment with a non-parole period of 7 years and 6 months. The indicative sentences were 3 years and 1 month for the assault count and 9 years for the wounding with intent count.
The applicant sought leave to appeal against the sentence on three grounds: that his representation in the District Court was incompetent; that the discount applied to reflect his late guilty pleas was inadequate; and that the overall sentence was excessive.
Legal Issues
- Whether the applicant's legal representation in the District Court was incompetent, such that a miscarriage of justice occurred
- Whether the sentencing judge applied an inadequate discount for the applicant's late pleas of guilty
- Whether the aggregate sentence of 10 years with a 7 year and 6 month non-parole period was excessive or otherwise infected by error
Decision
Incompetent representation: The applicant argued that his former solicitor and counsel failed to lead any oral or documentary evidence about his subjective circumstances, and failed to properly advise him about the benefits of an early guilty plea. The Court examined the applicable test, drawing on authorities including TKWJ v The Queen and R v Borkowski, which require demonstration of both the relevant failure and that a different outcome was reasonably possible. The Court accepted that the absence of any subjective evidence was a shortcoming, but found that the applicant had not established what evidence could or should have been led, nor that its absence produced a different sentencing result. The incompetence ground failed.
Discount for late guilty pleas: The applicant's pleas were entered at the door of the court, after the trial had been listed. The sentencing judge applied a 10 percent discount. The Court confirmed, consistent with R v Thomson and Houlton, that the discount for a late plea will generally be at the lower end of the available range. No error was demonstrated in the 10 percent figure, and this ground was not made out.
Excessive sentence: The applicant contended that the indicative sentence of 9 years for the wounding with intent count was disproportionate, particularly compared with the sentence received by the co-offender, Mr Toutounji, who was considered more culpable. The Court accepted that parity between co-offenders is a relevant consideration, but found that the sentences did not give rise to a justifiable sense of grievance. The sentencing judge's assessment of the objective gravity of the wounding offence as slightly above the mid-range was open on the facts. The Court also found that the sentencing judge's conclusion that the applicant had shown no genuine remorse was open, given the lateness of the pleas and the applicant's "final capitulation" on the facts. The aggregate sentence appropriately reflected the totality principle and was neither unreasonable nor plainly unjust.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A ground of incompetent representation requires more than identifying a shortcoming in counsel's conduct; the applicant must also establish that the deficiency produced, or could reasonably have produced, a different outcome at sentencing.
- Where guilty pleas are entered at a very late stage, the available discount under R v Thomson and Houlton will ordinarily sit at the lower end of the range, and a 10 percent discount for a plea at the door of the court does not of itself disclose error.
- Parity between co-offenders remains a relevant sentencing consideration, but a difference in sentence does not establish error unless it produces a justifiable sense of grievance, particularly where the sentencing judge has assessed the roles and culpability of each offender.
- A sentencing judge's finding that an offender showed no genuine remorse is open where guilty pleas were entered very late and the offender disputed the facts until shortly before the sentence hearing.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence importing significant concurrency between indicative sentences is capable of reflecting a proper application of the totality principle.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 59(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- De Wet v R [2015] NSWCCA 23
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Porter v R [2015] NSWCCA 59
- R v AB [2011] NSWCCA 229
- R v Birks (1990) 19 NSWLR 677
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Hookey [2018] NSWCCA 147
- R v Nicholson [2010] NSWCCA 80
- R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Tsiakas v R [2015] NSWCCA 187