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Court of Criminal Appeal 26 August 2022

Finnigan v R

[2022] NSWCCA 181

Assault & violence

Citation: Finnigan v R [2022] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 26 August 2022
Judges: Brereton JA, Wilson J, Cavanagh J (reasons delivered by Cavanagh J, with whom Brereton JA and Wilson J agreed)

Background

The applicant pleaded guilty in the District Court to breaking and entering premises and committing a serious indictable offence, namely assault occasioning actual bodily harm, aggravated by being in company, contrary to s 112(2) of the Crimes Act 1900 (NSW). He was sentenced to four years and six months imprisonment with a non-parole period of three years.

The offence arose after the applicant's mother was struck in the face by the victim following an altercation at the victim's home. She sent the applicant a photograph of her injuries identifying the victim as responsible. The applicant then attended the victim's premises armed with a hammer, accompanied by three other men, one of whom carried a length of metal. The applicant assaulted the victim, causing serious injuries.

The applicant sought leave to appeal the sentence, raising four grounds: that the sentencing judge wrongly found the attack was unprovoked; that the judge improperly qualified his finding of remorse; that the judge double counted aggravating factors; and that the judge's interventions during the sentencing hearing denied the applicant procedural fairness.

  • Whether the sentencing judge erred in finding the offending was unprovoked, given the prior assault on the applicant's mother
  • Whether the sentencing judge improperly qualified his finding of genuine remorse by reference to the applicant's refusal to identify his co-offenders
  • Whether the sentencing judge double counted circumstances of aggravation by treating the use of corporal violence and the intentional infliction of actual bodily harm as separate aggravating factors
  • Whether the sentencing judge's interventions during the applicant's evidence denied the applicant procedural fairness and caused the sentencing proceedings to miscarry

Decision

Ground 1 (Provocation): Provocation is a statutory mitigating factor under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), but it is for the sentencing judge to assess whether it applies on the facts. The sentencing judge made a finding of fact that the attack was unprovoked, and the applicant failed to demonstrate any error in that finding. The Court applied the well-established principle from House v R (1936) 55 CLR 449 that an appellate court may only intervene in a discretionary sentencing decision where identifiable error is established.

Ground 2 (Remorse): A review of the remarks on sentence showed that the sentencing judge did, in fact, make a positive finding of genuine remorse. The applicant sought to rely on exchanges between counsel and the judge during the hearing to suggest the finding was qualified, but the Court held that those exchanges could not establish error where the formal remarks on sentence contained no such qualification. The judge's ultimate acceptance of genuine remorse stood.

Ground 3 (Double Counting): A sentencing judge may take into account circumstances of aggravation relevant to an aggravated offence, beyond the specific particulars of aggravation charged, provided there is no double counting. Reading the remarks on sentence as a whole, and using exchanges during the sentencing hearing to clarify their meaning, the Court was satisfied the sentencing judge did not double count. The factors identified were treated as distinct and were not counted twice.

Ground 4 (Procedural Fairness): The sentencing judge's interventions during the applicant's evidence fell into three broad categories. Most were clarifying in nature, and while a small number could be characterised as challenging, the Court assessed the totality of the questioning. The applicant was given every opportunity to clarify his evidence and to make submissions afterwards; he was not prevented from completing his evidence. Critically, the interventions did not produce any adverse factual findings against the applicant, and the judge ultimately accepted genuine remorse despite finding the applicant an untruthful witness. No lack of procedural fairness or miscarriage of justice was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's finding that an offence was unprovoked is a finding of fact; an appellate court will not disturb it unless the applicant identifies specific error, and sympathy for the circumstances that prompted the offending does not, of itself, establish provocation as a mitigating factor.
  • Where remarks on sentence contain a clear and unqualified finding of genuine remorse, exchanges between counsel and the sentencing judge during the hearing cannot be used to undermine that finding absent corresponding error in the formal reasons.
  • Under the Crimes (Sentencing Procedure) Act 1999, a sentencing judge may consider aggravating circumstances beyond those particularised in the charge, provided each factor is counted only once; a proper reading of the reasons as a whole will ordinarily resolve apparent ambiguity on this point.
  • In dismissing the procedural fairness ground, the Court of Criminal Appeal confirmed that judicial intervention during a sentencing hearing does not constitute a miscarriage of justice where the offender has the opportunity to clarify evidence and make submissions, and where no adverse findings result from the questioning.
  • The contrast with Ellis v R [2015] NSWCCA 262 was significant: procedural unfairness is more readily established where an offender is prevented from completing evidence or compelled to withdraw it, rather than merely being challenged by questioning during its delivery.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(c), 33
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 17(1)

Cases:
- House v R (1936) 55 CLR 449
- The Queen v Olbrich (1999) 199 CLR 270
- Ellis v R [2015] NSWCCA 262
- Pleasance v R [2016] NSWCCA 113
- Tarrant v R [2018] NSWCCA 21
- H T v The Queen [2019] HCA 40
- You, Jae Bok v R [2020] NSWCCA 71
- DS v R; DM v R [2022] NSWCCA 156
- Lovell v R; Dominey v R [2006] NSWCCA 222
- Marshall v R [2007] NSWCCA 24
- Pham v R [2010] NSWCCA 208
- R v Joel Tory; R v Luke Tory [2006] NSWCCA 18
- R v Johnson [2005] NSWCCA 186
- R v Mendez [2002] NSWCCA 415
- R v Millar [2005] NSWCCA 202
- R v Price [2005] NSWCCA 285
- R v T, WA (2014) 118 SASR 382
- R v Capaldo [2015] SASCFC 56