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Court of Criminal Appeal 19 October 2020

Abdaly v R

[2020] NSWCCA 266

Assault & violence
CRIMINAL LAW SENTENCE APPEAL APPEAL DISMISSED.

Citation: Abdaly v R [2020] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 19 October 2020
Judges: Hoeben CJ at CL; Button J; N Adams J

Background

The applicant was sentenced in the Penrith District Court on 28 August 2019 for one count of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty of seven years imprisonment, with no standard non-parole period.

The offence occurred in June 2016. The applicant and two co-offenders confronted a victim seated in a car in a restaurant carpark, surrounding the vehicle with around six other men. The applicant splashed water on the victim through the open window and said words suggesting it was an inflammable substance. A co-offender then demanded the victim get out of the car, and the co-offenders proceeded to punch and kick the victim and steal cash and personal items from him. The applicant did not himself engage in the physical violence.

The applicant had been in custody since June 2017 on unrelated serious charges involving the same co-offenders. The fixed term of six months imprisonment imposed for this offence was backdated to commence from that date, meaning it had already fully expired by the time of sentencing. The applicant sought leave to appeal against the sentence.

  • Whether the sentencing judge awarded a proper discount for the plea of guilty
  • Whether the sentencing judge was entitled to impose a fixed term of imprisonment rather than a sentence with a non-parole period
  • Whether the sentence imposed was unreasonable and plainly unjust in all the circumstances

Decision

Guilty plea discount: The sentencing judge described the discount as "approximately 25 per cent." Button J (with N Adams J agreeing on this point) characterised that description as a slip in ex tempore remarks. The inference drawn was that a starting point of eight months had been adopted, the statutory discount was then applied, and the resulting fixed term of six months followed. On this analysis, the required discount had in fact been applied and no error was established.

Fixed term versus non-parole period: Hoeben CJ at CL analysed whether the sentencing judge was entitled to impose a fixed term under the Crimes (Sentencing Procedure) Act 1999 (NSW). The judge found that the threshold in s 5 had been crossed and that imprisonment was appropriate, having regard to the prevalence of the type of offending, the nature of the threat made to the victim, and the intimidating group context. The Court was satisfied that the sentencing judge's exercise of the discretion to impose a fixed term was not attended by legal error.

Unreasonable and plainly unjust: Applying the established appellate standard, the Court found that a wholly served sentence of six months could not be characterised as unreasonable or plainly unjust. The sentencing judge had weighed objective seriousness at the lower end of the scale, recognised the applicant's relative youth, prior good character, reasonable rehabilitation prospects, and the utilitarian value of the plea, while also accounting for the need for general and specific deterrence. No error in the exercise of sentencing discretion was demonstrated.

All three grounds of appeal were dismissed. Button J and N Adams J agreed with the orders proposed by Hoeben CJ at CL, differing only on the reasoning for ground 1 as noted above.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal against sentence is dismissed.

Key Takeaways

  • A reference to "approximately 25 per cent" as a guilty plea discount in ex tempore sentencing remarks does not necessarily constitute error where the arithmetic of the sentence is consistent with the statutory discount having been properly applied.
  • Where a sentencing judge identifies the s 5 threshold as crossed and imposes a fixed term rather than a sentence with a non-parole period, the Court of Criminal Appeal will not intervene unless legal error or an unreasonable outcome is demonstrated.
  • In dismissing the appeal, the Court confirmed that participation in a joint criminal enterprise to assault can ground a sentence of imprisonment even where the offender did not personally inflict the physical violence.
  • General deterrence for group-based unprovoked assaults by young men, combined with the intimidating nature of the surrounding conduct, was accepted as a legitimate sentencing consideration even where the objective seriousness of the individual offending fell towards the lower end of the scale.
  • A wholly served fixed term of six months was held not to be unreasonable or plainly unjust on these facts, notwithstanding that the sentence had expired before it was formally imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 59(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(2), 25D(1), 25D(2)(a), 45(4), 46(1), 54(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JJ v R [2020] NSWCCA 165
- Kristensen v R [2018] NSWCCA 189
- R v Altaf Thawer [2009] NSWCCA 158
- Sheather v R [2020] NSWCCA 162
- Waterstone v R [2020] NSWCCA 117