Citation: Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 2 September 2020
Judges: Hoeben CJ at CL, Davies J, Adamson J
Background
Two co-offenders pleaded guilty in the District Court to assault occasioning actual bodily harm in company and reckless wounding in company, arising from a violent attack on multiple victims at the Parramatta Bus Interchange in the early hours of New Year's Day 2019. The victims included a man who was punched and repeatedly kicked while on the ground, a bystander who intervened and was kneed twice in the eye and punched multiple times, and a third man who was struck before the main attack escalated. Both applicants were intoxicated at the time.
The sentencing judge, Buscombe DCJ, sentenced both applicants on 12 February 2020. The judge delivered ex tempore (on-the-spot, unreserved) remarks and, at the conclusion, misspoke by referring to the more serious offence of recklessly inflicting grievous bodily harm rather than reckless wounding.
Both applicants sought leave to appeal. One applicant (Cao) raised an additional ground of parity, arguing his sentence was unjustifiably similar to his co-offender's despite his lesser role, particularly in the reckless wounding count.
Legal Issues
- Whether the sentencing judge in fact sentenced the applicants for the more serious offence of recklessly inflicting grievous bodily harm, rather than the reckless wounding offence to which they had pleaded guilty
- Whether the sentencing judge impermissibly took into account the victim's injuries in a manner that exposed the applicants to liability for a more serious offence than charged (the De Simoni principle)
- Whether the indicative sentences for the reckless wounding count created an unjustifiable disparity between co-offenders whose roles in that offence were substantially different
Decision
Wrong offence reference. The Court found that the reference to the more serious offence at the end of the sentencing remarks was a slip in expression, not a genuine error in the exercise of the sentencing discretion. The judge had correctly identified the offences at the outset and throughout the bulk of the reasons. The Court rejected this ground for both applicants.
Victim injuries and the De Simoni principle. Under The Queen v De Simoni (1981), a sentencing court cannot take into account conduct that would have constituted a more serious offence than the one charged. The applicants argued that the judge's references to the severity of the victim's orbital fracture amounted to sentencing them as if they had caused grievous bodily harm. The Court rejected this ground. The judge's references to the injury were permissible: the nature and extent of the wound is a legitimate consideration in assessing objective seriousness for a wounding offence, and the judge's assessment of objective seriousness remained below the mid-range.
Parity. The Court upheld Cao's parity ground. The sentencing judge had explicitly found that McGregor-Macdonald was more involved in the reckless wounding count, and could not be satisfied beyond reasonable doubt that Cao had made physical contact with the victim at all. Despite this, both received identical indicative sentences of three years for that count. The Court found this produced an objectively justifiable sense of grievance for Cao. The similarity of subjective circumstances did not justify the equivalence, particularly given that the indicative sentences for count one already reflected different culpability. The Court reduced Cao's aggregate sentence by ten months.
Orders Made
In proceedings 2019/510 (Cao):
- Leave to appeal granted
- Appeal allowed
- Sentence quashed and replaced with an aggregate sentence of 3 years and 2 months' imprisonment commencing 20 January 2020 and expiring 19 March 2023, with a non-parole period of 19 months commencing 20 January 2020 and expiring 19 August 2021
In proceedings 2019/470 (McGregor-Macdonald):
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A single misstatement of the offence name at the conclusion of ex tempore sentencing remarks does not, of itself, establish that a judge sentenced an offender for the wrong offence, provided the correct offence was identified throughout the balance of the reasons.
- Under the De Simoni principle, a sentencing court may not use a victim's injuries as a basis for treating conduct as more serious than the offence charged; however, referring to the nature and extent of injuries to assess objective seriousness within the charged offence remains permissible.
- Parity between co-offenders does not require identical sentences; where one offender's role in a specific count is substantially lesser, the indicative sentence for that count should reflect that difference even if subjective circumstances are similar.
- In allowing Cao's parity appeal, the Court of Criminal Appeal confirmed that an objectively justifiable sense of grievance can arise from a single indicative sentence within an aggregate, not only from the aggregate sentence as a whole.
- Where a sentencing judge expressly finds that one co-offender's physical involvement cannot be established beyond reasonable doubt, that finding must carry material weight in calibrating indicative sentences between co-offenders.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 33, 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 53A
Cases:
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38
- McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
- Kingsley v R [2019] NSWCCA 19