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Court of Criminal Appeal 4 June 2020

R v Dabboussi

[2020] NSWCCA 111

Sexual offencesAssault & violence
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE ACCUMULATION OF NON PAROLE PERIODS BY TWO MONTHS WHETHER SENTENCES MANIFESTLY INADEQUATE DISCRETION TO RE

Citation: R v Dabboussi [2020] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 4 June 2020
Judge(s): Bell P, Davies J, Button J (all agreeing)

Background

The respondent pleaded guilty in the District Court to two distinct and serious offences: sexual intercourse without consent and reckless wounding. Each offence arose from entirely separate incidents. Additional related offences were taken into account on separate Form 1 documents (a procedural mechanism by which a court acknowledges further charges when sentencing, without recording separate convictions).

On 13 December 2019, her Honour Judge English sentenced the respondent to a head sentence of 2 years and 10 months for the sexual offence and a head sentence of 2 years and 3 months for the reckless wounding. The wounding sentence was set to commence six months into the sexual offence sentence. As a result, the head sentence for the wounding was entirely subsumed within the head sentence for the sexual offence, and the total non-parole period was extended by only two months to reflect the wounding's criminality.

The Crown appealed under section 5D of the Criminal Appeal Act 1912 (NSW), contending that the sentences were manifestly inadequate and that the sentence structure failed to reflect the gravity of the two separate courses of serious criminal conduct.

  • Whether the sentencing judge erred in her assessment of the need for specific deterrence
  • Whether the totality principle was applied appropriately, given that the head sentence for the wounding was entirely subsumed within the head sentence for the sexual offence
  • Whether the sentences were manifestly inadequate in all the circumstances
  • Whether, having found error, the Court of Criminal Appeal should exercise its discretion to re-sentence the respondent

Decision

The Court of Criminal Appeal allowed the Crown appeal, finding error in the sentence structure imposed at first instance. Button J (with Bell P and Davies J agreeing) identified that structuring the sentences so that the entire head sentence for the wounding was absorbed within the sexual offence sentence, and accumulating the non-parole periods by only two months, failed to adequately reflect the separate and serious nature of the wounding offending.

The Court found that the totality principle, which requires a sentencing court to ensure the overall sentence is appropriate and proportionate when multiple offences are being sentenced, had not been correctly applied. The result at first instance was that the wounding, a distinct episode of serious criminality attracting a maximum penalty of 7 years' imprisonment, was afforded almost no independent weight in the total sentence.

Having identified error, the Court exercised its discretion to re-sentence the respondent. The degree of cumulation between the two sentences was increased from six months to one year, meaning the sexual offence sentence was ordered to commence one year after the wounding sentence, rather than six months. The individual head sentences remained unchanged, but the restructuring produced a materially longer total sentence.

The revised sentences produced a total head sentence of 3 years and 10 months, with a total non-parole period of 2 years and 5 months. This represented an increase of one year in the total head sentence and seven months in the total non-parole period compared with the sentences imposed at first instance.

Orders Made

  • Crown appeal allowed
  • Sentences imposed on 13 December 2019 quashed
  • Respondent re-sentenced for reckless wounding (taking into account relevant Form 1): non-parole period of 1 year 4 months commencing 8 January 2019, expiring 7 May 2020, followed by a parole period of 11 months expiring 7 April 2021
  • Respondent re-sentenced for sexual intercourse without consent: non-parole period of 1 year 5 months commencing 8 January 2020, expiring 7 June 2021, followed by a parole period of 1 year 5 months expiring 7 November 2022
  • Date of release to parole fixed at 7 June 2021

Key Takeaways

  • Where two separate and serious offences are sentenced together, structuring sentences so that one head sentence is entirely subsumed within the other may fail to give independent weight to the second offence's criminality, and may therefore misapply the totality principle.
  • Accumulating non-parole periods by only two months to reflect a distinct episode of reckless wounding, carrying a maximum of 7 years' imprisonment, was found to produce a manifestly inadequate overall sentence in the circumstances of this case.
  • In dismissing the at-first-instance approach, the Court of Criminal Appeal restructured the sentences by increasing the period of cumulation between the two commencement dates from six months to one year, without altering the individual head sentences themselves.
  • A finding of error in sentencing does not automatically result in re-sentencing; the appellate court retains a discretion, and here exercised it given the significance of the structural error identified.
  • Under section 158 of the Crimes (Administration of Sentences) Act 1999 (NSW), because each individual head sentence remained below three years, the respondent retained entitlement to release to parole at the expiry of the second non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(4) (reckless wounding), 61L (sexual intercourse without consent)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against sentence)

Cases
- Cahyadi v R [2007] NSWCCA 1
- R v Loveridge [2014] NSWCCA 120