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Court of Criminal Appeal 1 July 2020

Brown v R

[2020] NSWCCA 132

Assault & violence
APPEAL SENTENCE APPEAL WHERE ALTERCATION AT MOTEL WHERE SENTENCE MANIFESTLY EXCESSIVE

Citation: Brown v R [2020] NSWCCA 132
Court: Court of Criminal Appeal, NSW
Date: 1 July 2020
Judge(s): Hoeben CJ at CL, Harrison J (principal judgment), Beech-Jones J

Background

The appellant had pleaded guilty in the District Court at Griffith to two offences arising from a violent early-morning attack at a motel in Leeton in March 2017. The first offence was recklessly inflicting grievous bodily harm in company on a male victim, whom the appellant stabbed with scissors, puncturing his lung. The second offence was assault occasioning actual bodily harm in company on a female victim, though the appellant played no direct physical role in that assault and his liability rested on joint criminal enterprise.

The attack followed an earlier altercation the previous evening, in which the appellant's partner had been aggressive with the female victim, who managed the motel. The appellant and his partner had been evicted and returned in the early hours to carry out the assault with others. The male victim came outside to intervene and was stabbed three times by the appellant.

The District Court sentenced the appellant to an aggregate term of 7 years and 3 months imprisonment with a non-parole period of 4 years and 10 months. The appellant sought leave to appeal, arguing the sentencing judge had made erroneous findings on objective seriousness and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by making findings on objective seriousness that contradicted concessions the Crown had made and of which the appellant had no notice, thereby denying him procedural fairness
  • Whether the aggregate sentence imposed was manifestly excessive in all the circumstances

Decision

On the first ground, the Court of Criminal Appeal rejected the appellant's argument. Harrison J confirmed that objective seriousness is a matter for the sentencing judge to determine, and the Crown cannot bind the court by concessions on that question. The court found the appellant was not denied procedural fairness: he had every opportunity to address the facts relevant to seriousness, and the sentencing judge's characterisation of the objective seriousness of each count was open on the evidence.

On the second ground, the court accepted that the aggregate sentence was, in the circumstances, unreasonable and plainly unjust. Harrison J identified several factors supporting a lesser sentence. For Count 2, while the assault was described as "particularly brutal," the appellant had played no direct physical role and his moral culpability was accordingly reduced, even though his legal liability was not. For Count 1, the stabbing was clearly the more serious offence, but the injuries resolved relatively quickly with no long-term physical consequences for the male victim.

The court also noted that questions of accumulation and totality remained relevant in assessing the appropriateness of an aggregate sentence, even where the individual indicative sentences are not themselves under direct challenge. Harrison J agreed with and adopted all the primary judge's factual findings, including on objective seriousness, but concluded that a lower aggregate sentence was warranted. The court resentenced the appellant accordingly.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentence imposed by the District Court on 9 August 2019 quashed
  • Appellant resentenced to an aggregate term of 6 years imprisonment commencing 20 September 2018 and expiring 19 September 2024, with a non-parole period of 3 years and 10 months expiring 19 July 2022
  • Indicative sentence for Count 1 (grievous bodily harm in company): 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months
  • Indicative sentence for Count 2 (assault occasioning actual bodily harm in company): 2 years imprisonment

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge is not bound by concessions made by the Crown regarding objective seriousness; that assessment remains squarely within the sentencing court's function.
  • No denial of procedural fairness arose simply because the judge's findings on seriousness differed from the Crown's concession, provided the defendant had the opportunity to address the relevant facts.
  • Where a defendant's liability for an offence rests on joint criminal enterprise rather than direct physical participation, reduced moral culpability is a relevant consideration on sentence, even though it does not diminish legal liability.
  • A sentence may be manifestly excessive even where all primary factual findings, including as to objective seriousness, are accepted as correct on appeal; manifest excess can arise from how those findings combine in an aggregate sentence.
  • The court's approach confirmed that totality and accumulation principles apply to aggregate sentences, and must be considered alongside individual indicative terms.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(1) and 59(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Chong v R [2017] NSWCCA 185
- KR v R [2012] NSWCCA 32
- McClelland v R [2019] NSWCCA 59
- Stojanovski v R [2013] NSWCCA 334