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7
Court of Criminal Appeal 13 April 2022

Sarhene v R

[2022] NSWCCA 79

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCING OFFENCES OF VIOLENCE AFFRAY GANGS OF YOUTHS GENERAL DETERRENCE

Citation: Sarhene v R [2022] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 13 April 2022
Judges: Leeming JA; Hamill J; Ierace J

Background

The appellant was 18 years old when he committed two offences within two weeks of each other: affray on 3 August 2019 and assault occasioning actual bodily harm in company on 17 August 2019. Both offences arose in the context of a territorial dispute between rival groups of youths. The appellant had no prior criminal history, pleaded guilty in the Local Court, and was found by the sentencing judge to be genuinely remorseful with very good prospects of rehabilitation.

Judge Harris in the District Court at Parramatta concluded, in relation to both offences, that no sentence other than imprisonment was appropriate under section 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour imposed an aggregate sentence of two years and ten months' imprisonment, ordered to be served by way of an Intensive Correction Order (ICO) with conditions including six months' home detention, 250 hours of community service, supervision, psychological counselling, and non-association orders.

The appellant sought leave to appeal against sentence on two grounds, arguing that the sentencing judge failed to properly account for his youth and immaturity, and that the finding that imprisonment was the only appropriate sentence was not open on the facts of the affray charge.

  • Whether the sentencing judge failed to take the appellant's youth and immaturity into account when determining the sentence to be imposed.
  • Whether the sentencing judge erred in finding that no penalty other than imprisonment was appropriate for each offence, particularly the affray, given the appellant's age, background, and limited role.
  • How the section 5(1) threshold (requiring a court to be satisfied that no penalty other than imprisonment is appropriate before imposing a custodial sentence) applied to both charges.

Decision

On the first ground, the Court of Criminal Appeal was not persuaded that the sentencing judge had ignored the appellant's youth and immaturity. The sentencing remarks contained multiple explicit references to his age, and the judge had directly observed and assessed him during cross-examination. Leeming JA characterised the real complaint as one about the weight given to youth rather than a failure to consider it at all, and confirmed that insufficient weight to a relevant consideration is generally not a reviewable error under the principles in House v The King (1936) 55 CLR 499.

Despite this, the majority allowed the appeal on ground 2 in respect of the affray charge. The Court held that it was not open to the sentencing judge to be satisfied, under section 5(1), that no penalty other than imprisonment was appropriate for the affray. The appellant had committed no acts of violence during the affray and had left when asked, placing his role at a low level of objective seriousness. Combined with his youth, absence of prior convictions, genuine remorse, and strong rehabilitation prospects, imprisonment was not the only appropriate sentence for that offence.

For the assault occasioning actual bodily harm in company charge, the Court found no error in concluding that imprisonment was required. That conclusion survived scrutiny even on resentencing.

Hamill J also noted a point concerning ICOs: there is no power to backdate an ICO, which commences on the date it is made. In resentencing, the Court replaced the affray component with a community corrections order and reduced the assault sentence to a significantly shorter term of imprisonment to be served by ICO.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Aggregate sentence of the District Court quashed. In lieu thereof:
  • For the affray offence: a 12-month community corrections order commencing 13 April 2022, with conditions including no commission of offences, supervision by a community corrections officer, reporting obligations, and non-association with specified co-offenders.
  • For the assault occasioning actual bodily harm in company offence: imprisonment for one month commencing 13 April 2022, to be served by way of an ICO, subject to conditions of no further offending and supervision by a community corrections officer.

Key Takeaways

  • A sentencing judge's failure to mention a relevant consideration is a reviewable error, but a complaint that insufficient weight was given to that consideration will generally not engage the Court of Criminal Appeal's review jurisdiction under the principles established in House v The King.
  • The section 5(1) threshold, requiring a court to be satisfied that no penalty other than imprisonment is appropriate, is an evaluative determination, not a pure discretion. The Court of Criminal Appeal confirmed this distinction matters when characterising the nature of any alleged error.
  • Where an offender's role in an affray is at the low end of objective seriousness, combined with youth, no prior record, genuine remorse, and strong rehabilitation prospects, the section 5(1) threshold may not be met, and a non-custodial order such as a community corrections order may be available.
  • Consistent with the statutory framework and earlier authority, an ICO cannot be backdated: under section 71(1) of the Crimes (Sentencing Procedure) Act 1999, an ICO commences on the date it is made, and time already served must be factored into resentencing in other ways.
  • General deterrence remains a relevant sentencing consideration for group violence offences, but its weight must be assessed alongside the specific circumstances of the individual offender, including age and degree of participation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 8, 10A, 66, 71, 73, 73A, 86, 88, 89

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Valenti v R [2016] NSWCCA 17
- Cunningham v Regina [2017] NSWCCA 222
- Vaiusu v R [2017] NSWCCA 71
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353
- Taitoko v R [2020] NSWCCA 43
- CW v R [2022] NSWCCA 50
- HJ v R [2014] NSWCCA 21
- R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
- TM v R [2008] NSWCCA 158
- Mandranis v R [2021] NSWCCA 97; (2021) 298 A Crim R 260
- R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122
- Blanch v R [2019] NSWCCA 304
- R v Speechley [2012] NSWCCA 130; (2012) A Crim R 175
- Rotner v R [2011] NSWCCA 207
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Howard v R [2019] NSWCCA 109
- R v Dalton [2004] NSWSC 446