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Court of Criminal Appeal 19 July 2021

Funaki v R

[2021] NSWCCA 165

Assault & violence
CRIME SENTENCING RECKLESS WOUNDING WHILST IN COMPANY JOINT CRIMINAL ENTERPRISE THREE VICTIMS WITH STAB WOUNDS ATTACK DIRECTED AT RIVAL GANG

Citation: Funaki v R [2021] NSWCCA 165
Court: NSW Court of Criminal Appeal
Date: 19 July 2021
Judges: Basten JA; Walton J; Adamson J

Background

In August 2019, a group of young people associated with a western Sydney gang invaded a birthday party near Northmead Park, intending to confront a rival gang member believed to be present. Three party guests suffered knife wounds serious enough to require hospital treatment. The group prepared in a nearby park beforehand, with several members disguising their faces and carrying weapons.

The appellant, Edward Funaki, was one of four offenders sentenced in the District Court. He drove co-offenders to and from the party and was present in the backyard during the attacks. He did not carry a weapon or personally wound anyone, but he had knowledge that co-offenders were armed and contemplated the use of those weapons.

Funaki pleaded guilty to three counts of reckless wounding whilst in company under s 35(3) of the Crimes Act 1900 (NSW), one count per victim. Each offence carried a maximum penalty of 10 years imprisonment and a standard non-parole period of four years. The sentencing judge imposed an aggregate term of three years and six months with a non-parole period of two years and four months, the lowest sentence among the four offenders sentenced at that time.

  • Whether the aggregate sentence of three years and six months was manifestly excessive, given that the appellant did not personally inflict wounds or carry a weapon
  • Whether the sentencing judge gave adequate weight to the appellant's entirely favourable personal circumstances, including no prior violence, no drug dependency, no mental health issues, and stable employment
  • Whether the sentencing judge erred in declining to impose an alternative to full-time custody

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. The court noted that the sentencing judge had expressly acknowledged and applied every favourable circumstance the appellant relied on, including his limited role in the physical violence, his lack of a criminal record, and the positive sentencing assessment report. The judge had found the objective seriousness of Funaki's conduct to be below the mid-range, and had structured the sentence to reflect a high degree of concurrency across the three offences.

On the question of full-time custody, the sentencing judge concluded that the gang-related nature of the offending and the need for general deterrence required custodial sentences for all four offenders, including Funaki. The Court of Criminal Appeal found no error in that reasoning. It also noted that an intensive correction order was unavailable in any event, because that option under the Crimes (Sentencing Procedure) Act 1999 (NSW) requires an aggregate sentence of three years or less, and the sentence actually imposed exceeded that threshold.

The appellant also pointed to the disparity between his sentence and that of his co-offender Cameron Ansah, who received an aggregate of four years and four months after being directly involved in striking and kicking victims. The court accepted that some disparity was warranted, but found the existing difference already reflected Funaki's lesser role. No relevant error on the part of the sentencing judge was demonstrated.

The applicable test for manifest excess, drawn from Obeid v R [2017] NSWCCA 221, requires that the sentence be so outside the available range that some misapplication of principle must be inferred, even if the error cannot be precisely identified. The court held that neither limb of that test was satisfied here.

Orders Made

  • Leave to appeal from the sentence imposed in the District Court on 20 November 2020 was granted.
  • The appeal was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a manifest excess ground requires more than arguing that a lesser sentence was available; the sentence must fall so far outside the permissible range that a misapplication of principle can be inferred.
  • Active participation in a joint criminal enterprise, including transporting co-offenders, concealing one's identity, and being present during attacks, can independently ground a custodial sentence even where the offender did not personally inflict injury.
  • Under ss 7(4) and 68(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an intensive correction order is unavailable where the aggregate sentence exceeds three years, meaning a sentencing challenge aimed at accessing that option must necessarily contest the aggregate term itself.
  • Entirely favourable personal circumstances do not automatically displace full-time custody where the sentencing court determines the seriousness of the offending, including its gang-related and premeditated nature, demands general deterrence.
  • No error was established in the co-offender sentencing comparison where the court had already reflected Funaki's lesser role through both the below-mid-range objective seriousness finding and the high degree of concurrency across three separate victim counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(3) (reckless wounding whilst in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 54A, 68 (intensive correction orders; standard non-parole periods; aggregate sentencing)

Cases:
- Obeid v R [2017] NSWCCA 221 (test for manifest excess on sentence appeal)
- Mulato v R [2006] NSWCCA 282 (cited in relation to sentencing principles)