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14
Court of Criminal Appeal 20 March 2020

Taitoko v R

[2020] NSWCCA 43

Assault & violence
CRIMINAL LAW APPEAL AGAINST SENTENCE AGGREGATE SENTENCE OF 4 YEARS WITH NON PROPRIETY OF MAKING SUCH SUBMISSIONS SIGNIFICANCE OF AGREED FACTS WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Taitoko v R [2020] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 20 March 2020
Judges: Hoeben CJ at CL; Leeming JA; Lonergan J

Background

The appellant pleaded guilty in the District Court to five offences arising from a connected sequence of violent and threatening conduct lasting just over an hour on 8 February 2017 in Wyong, following sustained alcohol consumption. The offences involved four separate victims: a hotel manager who was threatened and feared for her safety, a man punched at a train station, a man punched in his car, and a woman who had a drink poured on her.

The five charges were: one count of intimidation intending to cause fear of physical or mental harm, two counts of reckless wounding, one count of common assault, and one count of destroying or damaging property. After a 25 percent discount for guilty pleas, the District Court imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 8 months.

The appellant filed a notice of appeal against sentence nearly a year after sentencing and more than 18 months after the sentence had commenced, meaning the majority of his original non-parole period had already been served before any appeal was lodged.

  • Whether the aggregate sentence was manifestly excessive, having regard to the principle of totality where offending constituted a single course of conduct
  • Whether the sentencing judge erred by failing to treat the woundings as technical in nature (wounds caused by punch breaking skin rather than by a weapon)
  • Whether the sentencing judge erred by failing to consider medical reports tendered in evidence
  • Whether unreasonable weight was given to photographs of the victims' injuries
  • Whether the objective seriousness of the reckless wounding counts was assessed correctly, including whether their susceptibility to summary prosecution was a relevant consideration
  • Whether the sentencing judge misunderstood submissions about provocation as an excuse rather than context
  • Whether the sentencing judge unreasonably devalued character references
  • Whether the sentencing judge failed to give appropriate weight to a psychologist's report
  • The propriety of supplementary submissions made after a decision was reserved and without leave

Decision

The Court dismissed the majority of the proposed grounds. Hoeben CJ at CL observed that grounds 2 through 7 lacked underlying merit and fell short of the standard expected of counsel's submissions. Leeming JA examined each ground in detail and found no error in the sentencing judge's approach to the photographic evidence, objective seriousness, the medical reports (which had not been drawn to the judge's attention), the susceptibility of charges to summary disposal, the provocation submissions, or the character references. The psychologist's report, which purported to diagnose psychiatric conditions, was also found to have been properly treated with appropriate caution.

The Court upheld the appeal solely on the basis that the aggregate sentence was manifestly excessive. The central error was that the sentence failed to give sufficient weight to totality: all five offences arose from a single episode of conduct lasting barely over an hour. The individual indicative sentences were not disturbed, but the degree of concurrency implicit in the aggregate sentence was found to be inadequate for offending that was properly characterised as one continuous series of events.

On resentencing, Leeming JA did not interfere with the assessment of objective seriousness, prospects of rehabilitation, or the finding that the appellant was of good character and genuinely remorseful. A finding of special circumstances was confirmed, extending the parole period to allow for supervised time in the community. A full-time custodial sentence remained warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed on ground 1 (manifest excess) only.
  • Appellant resentenced to an aggregate term of 3 years and 3 months imprisonment with a non-parole period of 2 years and 2 months.
  • Sentence backdated to commence 28 March 2018.
  • Sentence to expire 27 June 2021; non-parole period to expire 27 May 2020.
  • Earliest parole application date: 27 May 2020.
  • Indicative individual sentences confirmed as: 9 months (intimidation), 2 years with 16-month non-parole period for each reckless wounding count, 6 months (common assault), and 3 months (destroy or damage property).

Key Takeaways

  • Where multiple offences constitute a single continuous episode of conduct, the principle of totality requires a meaningful degree of concurrency in an aggregate sentence; failure to reflect this adequately can render a sentence manifestly excessive even where individual indicative terms are sound.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence must still be consistent with totality principles, and the indicative individual sentences do not themselves determine whether the aggregate is appropriate.
  • A sentencing judge cannot be said to have erred by failing to consider evidence that was tendered but not drawn to the court's attention by counsel; the obligation to direct the judge to relevant material rests with the parties.
  • Submissions based on agreed facts carry significant weight at sentencing; attempts to adduce evidence or make submissions that depart from agreed facts without leave are procedurally improper and were criticised by the Court.
  • The fact that charges under the Crimes Act 1900 (NSW) could have proceeded summarily is not, without more, a basis for reducing the objective seriousness of those offences at sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23, 35, 61, 195
- Crimes Amendment (Provocation) Act 2014 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 202 CLR 321
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Cahyadi v R [2007] NSWCCA 1
- Amante v R [2020] NSWCCA 34
- Baines v R [2016] NSWCCA 132
- Jung v R [2017] NSWCCA 24
- Lees v R [2019] NSWCCA 65
- Masters v R [2019] NSWCCA 233
- Hanna v Environment Protection Authority [2019] NSWCCA 299