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Court of Criminal Appeal 16 December 2021

Muniandy v R

[2021] NSWCCA 305

Assault & violencePublic order & justice offences

Citation: Muniandy v R [2021] NSWCCA 305
Court: NSW Court of Criminal Appeal
Date: 16 December 2021
Judges: Harrison J, Davies J, Wright J (reasons by Wright J)

Background

The appellant, a Malaysian national of Tamil ethnicity, was tried in the District Court alongside a co-accused on charges arising from an incident on 29 May 2019. He had gone to the victim's workplace, invited the victim into a hired van to speak with him about family matters, and then assaulted the victim for two to three minutes after the victim made offensive remarks about the appellant's mother. The van had not travelled far, the detention lasted approximately 20 minutes, and the victim was returned to his workplace shortly after 7:20 am.

The jury acquitted the appellant of the more serious charge of kidnapping in company with actual bodily harm, but found him guilty of the statutory alternative: kidnapping with actual bodily harm under s 86(2)(b) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 20 years' imprisonment. The co-accused was acquitted on all charges.

In April 2021, the District Court sentenced the appellant to 20 months' imprisonment with a non-parole period of 10 months. The appellant sought leave to appeal against that sentence on two grounds.

  • Whether the sentencing judge erred by treating an Intensive Correction Order (ICO) as too lenient a sentencing option, and by finding that no meaningful conditions could be imposed under an ICO because supervision would be suspended by Community Corrections.
  • Whether the sentence imposed, both the head sentence and the non-parole period, was manifestly excessive.

Decision

On the first ground, the Court found that the sentencing judge had misapplied the relevant principles when considering an ICO. The judge had declined to impose an ICO partly on the basis that it was insufficiently punitive and partly because Community Corrections would likely suspend supervision, meaning no meaningful additional conditions could be added. The Court of Criminal Appeal found these reasons reflected an error of principle in the approach to the sentencing discretion.

On the second ground, the Court was satisfied that, having regard to all the circumstances, the sentence was manifestly excessive. Even where no specific identifiable error can be pinpointed, manifest excess may be inferred from the sentence as a whole when it is disproportionate to the objective and subjective circumstances of the offending.

The Court proceeded to re-sentence. It adopted the sentencing judge's unchallenged findings on the objective seriousness of the offending and the appellant's subjective circumstances, including the unplanned nature of the assault, the appellant's remorse, and his previous good character. The Court also found special circumstances warranting a reduction in the proportion of the non-parole period to the head sentence, having regard to the appellant's relative youth, good character, lack of family support in Australia, and potential language difficulties.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 27 April 2021 quashed.
  • In lieu of that sentence, the appellant sentenced to 12 months' imprisonment commencing 25 April 2021, with a non-parole period of 7 months expiring 24 November 2021.
  • Immediate release of the appellant ordered.

Key Takeaways

  • A sentencing court errs in principle when it declines to impose an ICO on the basis that the ICO is too lenient as a sentencing option, particularly where that conclusion is compounded by a mistaken assumption about how Community Corrections would administer supervision conditions.
  • Manifest excess may be established without identifying a specific patent error in the sentencing remarks, provided the appellate court can infer error from the overall disproportionality of the sentence when assessed against the objective and subjective circumstances.
  • The Court of Criminal Appeal confirmed that, on re-sentencing, it exercises the sentencing discretion on the material before the original sentencing court, adopting unchallenged factual findings and assessments of objective seriousness.
  • Special circumstances justifying an adjustment to the standard non-parole period ratio can be found where an offender is relatively young, has no prior criminal history, lacks family support in Australia, and faces potential language difficulties.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), if the appellate court concludes that a less severe sentence was warranted in law and should have been passed, it is required to quash the original sentence and re-sentence accordingly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59, 86
- Crimes (Administration of Sentences) Act 1999 (NSW), s 82A
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cll 187, 189I
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 66, 67, 68, 69, 72, 73, 73A
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Elphick v R [2021] NSWCCA 167
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Cahill [2015] NSWCCA 53
- R v Fangaloka [2019] NSWCCA 173