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Court of Criminal Appeal 13 July 2022

Hraichie v R

[2022] NSWCCA 155

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL OFFENCES COMMITTED IN CUSTODY ATTACKED FELLOW PRISONER CARVED ISIS SLOGAN INTO FOREHEAD WOUND WITH INTENT TO KILL

Citation: Hraichie v R [2022] NSWCCA 155
Court: NSW Court of Criminal Appeal
Date: 13 July 2022
Judges: Beech-Jones CJ at CL; RA Hulme J; N Adams J

Background

The applicant, an Australian-born man who entered custody in December 2015, committed a series of serious offences while imprisoned. On 7 April 2016, he attacked a fellow inmate, wounding him with intent to murder and causing grievous bodily harm, including carving an ISIS slogan into the victim's forehead. He also committed acts in preparation for terrorist attacks on Australian law enforcement officers and sent a threatening letter to the Commissioner of Corrective Services. Johnson J sentenced him on 2 August 2019 to a total effective sentence of 34 years with a non-parole period of 29 years across four offences.

Separately, in May 2017, while his existing non-parole periods had technically expired but remained in custody on refused bail, the applicant attempted to perform an "exorcism" on a fellow inmate. This gave rise to charges of aggravated take and detain a person and common assault. Culver DCJ sentenced him on 5 March 2020 to an aggregate of 10 years with a 5-year non-parole period, commencing after the expiry of the last non-parole period imposed by Johnson J.

The applicant sought leave to appeal both sets of sentences, raising focused complaints about the interaction between sentence commencement and end dates, the application of the totality principle, and particular statutory questions about accumulation of sentences under s 56 of the Crimes (Sentencing Procedure) Act 1999.

  • Whether Johnson J failed to have regard to the total effective period of the applicant's imprisonment, including time in custody from December 2015, when applying the totality principle
  • Whether the aggregate sentence imposed by Johnson J for the wounding and grievous bodily harm offences was manifestly excessive
  • Whether the degree of accumulation between Johnson J's sentences was excessive under the totality principle
  • Whether Culver DCJ's sentence miscarried because she was given incorrect information about the maximum penalty for the common assault offence under s 61 of the Crimes Act 1900
  • Whether s 56 of the Crimes (Sentencing Procedure) Act 1999, which mandates consecutive sentences for offences committed by "a convicted inmate of a correctional centre," applied to the offences committed in May 2017
  • Whether Culver DCJ failed to have proper regard to the total effective period of imprisonment when applying the totality principle

Decision

Johnson J's sentences: The Court rejected the argument that Johnson J failed to consider the applicant's full period in custody. His Honour had addressed the totality principle in detail and was clearly aware the applicant had been detained since December 2015. The Court also rejected the claim that the degree of accumulation between sentences was excessive, confirming that the totality principle does not require the avoidance of a "crushing sentence" where the sentence is otherwise just and appropriate.

However, the Court found that the aggregate sentence imposed for the two offences constituting the attack on the fellow inmate was manifestly excessive, being disproportionate to that offending even accounting for the applicant's poor subjective case. Ground 1(b) was upheld. The applicant was resentenced on those offences, with a consequential adjustment to the commencement date of the terrorism sentence.

Culver DCJ's sentence: Two grounds of error were established. First, her Honour recorded the maximum penalty for the s 61 common assault offence as 5 years when the correct maximum is 2 years. Acting on a wrong assumption about maximum penalty constituted a wrong principle, vitiating the sentence. Second, and addressed in a separate judgment by Hulme J, the applicant was not a "convicted inmate of a correctional centre" within the meaning of s 56(1)(a) at the time of the May 2017 offending. Although his non-parole periods had expired, he remained in custody only because bail was refused, not because he was serving a sentence. Section 56 therefore did not apply.

The Court rejected the third ground concerning Culver DCJ's totality reasoning, finding her Honour had discussed the principle at length and appropriately fixed the aggregate sentence to commence on expiry of Johnson J's last non-parole period. Following resentencing on both sets of affected offences, the applicant was still required to serve at least 28 years in custody.

Orders Made

• The orders proposed by Beech-Jones CJ at CL are upheld
• Round 2 of the appeal concerning the sentence imposed in the District Court must be upheld

Key Takeaways

  • An aggregate sentence can be manifestly excessive even where an offender has a very poor subjective case, if it is disproportionate to the specific offences it covers, even within a wider pattern of serious criminality.

  • Under s 56(1)(a) of the Crimes (Sentencing Procedure) Act 1999, the mandatory consecutive sentencing regime for offences against the person committed in custody applies only to "a convicted inmate of a correctional centre." The Court of Criminal Appeal held that a person who remains in custody solely because bail has been refused, after their non-parole period has expired, does not meet that definition and is not subject to s 56.

  • Where a sentencing court proceeds on an incorrect maximum penalty for an offence, that constitutes a "wrong principle" under House v The King (1936) 55 CLR 499 and Kentwell v The Queen (2014) 252 CLR 601, and the resulting sentence is liable to be set aside on appeal.

  • The totality principle does not operate as a free-standing basis to reduce sentences below what is otherwise just and appropriate simply to avoid a very long overall term. The principle does not require courts to avoid a "crushing sentence" at the expense of proper punishment: see Postiglione v The Queen (1997) 189 CLR 295 and Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.

  • Even where s 56 does not strictly apply, courts retain a discretion to impose consecutive sentences for offences committed in custody, consistent with the legislative policy underlying the provision and the strong general deterrence rationale for protecting both prison staff and fellow inmates.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 27, 33(1)(b), 61
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 56
- Criminal Code Act 1995 (Cth)

Cases
- Andreata v R [2015] NSWCCA 239
- Atai v R [2020] NSWCCA 302
- Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426; [2022] HCA 13
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- BJS v R [2013] NSWCCA 123
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- GS v R [2016] NSWCCA 266
- House v The King (1936) 55 CLR 499
- JM v R [2014] NSWCCA 297
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Noonan v R [2021] NSWCCA 35
- PD v R [2012] NSWCCA 242
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Alou (No 4) [2018] NSWSC 221
- R v Brown [2012] NSWCCA 199
- R v Fyffe [2002] NSWSC 751
- R v Hraichie (No 3) [2019] NSWSC 973
- R v Jeremiah [2016] NSWCCA 241
- R v MAK; R v MSK (2006) 167 A Crim R 15; [