Citation: Kaisuva v R; Soro v R [2021] NSWCCA 326
Court: Court of Criminal Appeal, NSW
Date: 30 December 2021
Judges: Basten JA, Davies J, Button J
Background
Two co-offenders pleaded guilty in the Local Court to aggravated break and enter a dwelling and commit a serious indictable offence, specifically assault occasioning actual bodily harm in company, contrary to s 112(2) of the Crimes Act 1900 (NSW). The offending arose from a late-night incident in Campbelltown in January 2020, during which the offenders forced their way into a neighbour's unit while searching for a woman they believed was inside. They assaulted the occupant, striking him with a glass bottle and kicking him while he was on the ground. One offender fractured bones in his hand while punching the door during the break-in.
Both offenders were sentenced in the District Court by Judge Colefax SC in November 2020. The first offender received three years' imprisonment with an 18-month non-parole period; the second received three years and two months with a non-parole period of one year and seven months. Both sought leave to appeal to the Court of Criminal Appeal, arguing the sentencing judge made factual errors and misapplied relevant principles.
Legal Issues
- Whether the sentencing judge made erroneous findings of fact, including a finding made contrary to unchallenged evidence about one offender's attendance at a rehabilitation program
- Whether the sentencing judge erred in finding that the second offender had lied to a forensic psychologist about his alcohol use since the offending
- Whether the sentencing judge erred in his treatment of extra-curial punishment (punishment suffered outside the formal justice system) in relation to the second offender's self-inflicted hand injury
- Whether, if errors were established, resentencing resulted in any lesser sentence being warranted
Decision
The Court granted leave to appeal in both matters and found that the sentencing judge had made errors in each case, albeit none that ultimately affected the outcome.
In relation to the first offender, the sentencing judge incorrectly cast doubt on his attendance at Odyssey House, which was not in dispute. Basten JA characterised this as an infelicity of expression in an ex tempore judgment rather than a substantive error. The Court noted that the judge was nonetheless entitled to give that attendance little weight on the question of rehabilitation, because no progress report from Odyssey House had been tendered.
For the second offender, the sentencing judge erred in finding he had been untruthful to a psychologist when he said he had not consumed alcohol since the night of the offending. The Court accepted that alternative explanations had not been explored, but observed that the psychologist herself was sceptical about the offender's prospects of abstaining from alcohol in the future, and the judge was equally entitled to hold that scepticism.
On the extra-curial punishment issue, Basten JA expressed doubt that a self-inflicted injury sustained in the course of committing an offence constitutes "punishment" in any ordinary sense of that word. Davies J accepted, on the authority of Quinn v R, that the broken hand did amount to extra-curial punishment and should form part of the instinctive synthesis, but found it was not a significant mitigating factor. Both approaches led to the same conclusion: no lesser sentence was warranted in either case, and both appeals were dismissed.
Orders Made
- Leave to appeal granted to the first offender; appeal dismissed.
- Leave to appeal granted to the second offender; appeal dismissed.
Key Takeaways
- A factual finding made contrary to unchallenged evidence constitutes error on sentence, but the error will not result in resentencing if no lesser sentence is warranted in law.
- Where rehabilitation evidence is tendered without supporting documentation (such as a progress report from a program attended), a sentencing court may give that evidence little weight even if the underlying fact is not disputed.
- Basten JA questioned whether a self-inflicted injury sustained during the commission of an offence qualifies as extra-curial punishment in any ordinary sense, signalling some tension with the broader application of that doctrine.
- In dismissing both appeals, the Court confirmed that errors in the characterisation of mitigating factors do not require resentencing where the overall sentence falls within the available range.
- Under s 112(2) of the Crimes Act 1900 (NSW), the maximum penalty for aggravated break and enter with a serious indictable offence is 20 years' imprisonment, with a standard non-parole period of five years.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2)
Cases:
- Alameddine v R [2006] NSWCCA 317
- Christodoulou v R [2008] NSWCCA 102
- Cvetkovic v R [2013] NSWCCA 66
- Elyard v R [2006] NSWCCA 43
- Quinn v R [2018] NSWCCA 297
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460