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Court of Criminal Appeal 21 October 2020

Foaiaulima v R

[2020] NSWCCA 270

Also reported as (2020) 285 A Crim R 222
Assault & violenceTheft & property
CRIME SENTENCE APPEAL METHOD OF APPLICATION MANIFEST EXCESS NO MANIFEST EXCESS BY MAJORITY, APPEAL DISMISSED.

Citation: Foaiaulima v R [2020] NSWCCA 270
Court: Court of Criminal Appeal, NSW
Date: 21 October 2020
Judges: Bathurst CJ, Johnson J, Rothman J

Background

The applicant was convicted in the District Court of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), with a further offence of disposing of stolen property taken into account on a Form 1. The sentencing judge imposed a head sentence of imprisonment, and the applicant sought leave to appeal on the basis that the sentence was manifestly excessive and that the sentencing judge had misapplied the guideline judgment in R v Henry (1999) 46 NSWLR 346.

The central dispute concerned the method by which the sentencing judge incorporated the Henry guideline into her assessment of the appropriate sentence. The applicant argued that she had conducted an impermissible two-stage process, first locating the offence within the Henry range and then separately layering aggravating and mitigating factors on top of that assessment.

The appeal raised questions about the proper relationship between guideline judgments, the instinctive synthesis approach to sentencing, and the requirements of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing judge erred in her method of applying the Henry guideline judgment, specifically by conducting a two-stage assessment rather than treating the guideline as an integrated part of the overall sentencing process.
  • Whether the sentencing judge's finding that the degree of planning exceeded that contemplated in the Henry guidelines was open on the facts.
  • Whether the resulting sentence was manifestly excessive.

Decision

By majority (Bathurst CJ and Johnson J, Rothman J dissenting), the Court dismissed the appeal. The majority accepted that the sentencing judge's remarks on sentence were open to two interpretations: one in which she impermissibly assessed objective seriousness by reference to Henry and then separately adjusted for additional aggravating and mitigating factors, and one in which she used Henry as a guidepost within an overall instinctive synthesis. The majority concluded that, read as a whole, the remarks on sentence reflected the latter, permissible approach.

Bathurst CJ identified several indicators supporting this conclusion. The sentencing judge referred to Markarian and Muldrock in explaining her approach, described Henry as one aspect bearing on sentence, and stated that she had assessed objective seriousness by reference to "all of the facts and circumstances of the case." These features were consistent with using the guideline as a check or indicator rather than as a mechanical starting point from which departures were then calculated.

On the third ground, the majority held that it was open to the sentencing judge to conclude that the planning involved in the offence was somewhat greater than the limited degree of planning contemplated in the Henry guidelines, given the facts she had outlined. The majority also agreed that the sentence was not manifestly excessive.

Rothman J dissented, concluding that the sentencing judge had in fact conducted a two-stage process. His Honour observed that the judge expressed the offence as falling at the lower end of the Henry range and then imposed a head sentence well above that range without expressly indicating an intention to depart from it. Rothman J was also concerned that the majority's approach risked encouraging a mechanical, additive process of layering factors on top of the guideline range.

Orders Made

The majority orders were:

  • Leave to appeal granted.
  • Appeal dismissed.

Rothman J, in dissent, proposed the following alternative orders:

  • Leave to appeal granted.
  • Appeal allowed.
  • The District Court sentence quashed and replaced with a head sentence of 3 years and 9 months imprisonment, commencing 31 July 2018 and concluding 30 April 2022, with a non-parole period of 2 years and 3 months concluding 30 October 2020.

Key Takeaways

  • The Court of Criminal Appeal confirmed, by majority, that a sentencing judge applying the Henry guideline judgment must treat it as an integrated guidepost within the overall instinctive synthesis process, not as a fixed starting point from which aggravating and mitigating factors are then mechanically added or subtracted.
  • Under s 42A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court is required to take a guideline judgment into account; compliance with this obligation does not, however, demand a separate or sequential analysis divorced from the holistic sentencing exercise.
  • A two-stage sentencing process that first determines the offence's position within a guideline range and then separately recalibrates for additional factors would be erroneous, consistent with the High Court's reasoning in Muldrock v The Queen (2011) 244 CLR 120 regarding standard non-parole periods.
  • Remarks on sentence must be read as a whole when determining whether a judge adopted a permissible or impermissible approach; isolated phrases that appear to suggest a two-stage method will not necessarily establish error if the overall reasoning discloses an instinctive synthesis.
  • The decision illustrates the ongoing interpretive difficulty in assessing compliance with guideline judgments, as the three judges on the panel reached opposite conclusions from the same sentencing remarks.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 52A, 60(1), 97, 98, 112, 189
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 36, 42A, 54A, 54B, Part 3
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Moodie v R [2020] NSWCCA 160
- Hawat v R [2020] NSWCCA 121
- Fedele v R (2015) 257 A Crim R 78; [2015] NSWCCA 286
- Hampton v R (2014) 243 A Crim R 193; [2014] NSWCCA 131
- R v Amati (2019) 279 A Crim R 73; [2019] NSWCCA 193
- Fahs v R [2007] NSWCCA 26
- Mulato v R [2006] NSWCCA 282
- R v Jurisic (1998) 45 NSWLR 209
- R v Hemsley [2004] NSWCCA 228
- Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Application by the Attorney General (No 3 of 2002) (2004) 61 NSWLR 305; [2004] NSWCCA 303