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Court of Criminal Appeal 29 May 2023

Tonga, Samuel v R

[2023] NSWCCA 120

Assault & violence
SENTENCING SENTENCE OF IMPRISONMENT SENTENCE OF TWO YEARS OR LESS ASSESSMENT OF RISK OF REOFFENDING ROLE OF GENERAL DETERRENCE

Citation: Tonga, Samuel v R [2023] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 29 May 2023
Judges: Basten AJA; Walton J; Hamill J

Background

The applicant pleaded guilty to recklessly causing grievous bodily harm under s 35(1) of the Crimes Act 1900 (NSW), arising from a road rage incident in which he and his brother assaulted a motorist. During the assault, the applicant struck the victim twice on the head with a crowbar retrieved from the victim's own vehicle. The victim sustained a deep skull fracture requiring craniectomy, craniotomy, and titanium cranioplasty, along with two further wounds.

The applicant was sentenced in November 2022 to 22 months' imprisonment with a non-parole period of 13 months. The sentencing judge, Buscombe DCJ, declined to order that the sentence be served by way of an Intensive Correction Order (ICO), a form of sentence that allows an offender to serve a term of two years or less in the community under supervision rather than in full-time custody.

The applicant sought leave to appeal, challenging only the refusal to impose an ICO.

  • Whether the sentencing judge erred by failing to find that the applicant was unlikely to reoffend
  • Whether the sentencing judge erred by characterising the grant of an ICO as an "act of leniency"
  • Whether the sentencing judge failed to apply the three-stage statutory process under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), including properly identifying community safety as the paramount consideration and permissibly taking general deterrence into account

Decision

On the reoffending risk finding: The Court held that the evidence, including the Sentencing Assessment Report, did not compel the sentencing judge to find that the applicant was unlikely to reoffend. Buscombe DCJ had acknowledged favourable rehabilitation prospects but expressly stated he could not make an "unlikely to reoffend" finding given the serious violence involved and the assessed risk level. The Court confirmed that such a finding was not, in any event, determinative of whether an ICO should be granted.

On describing an ICO as an "act of leniency": The Court rejected this ground. It noted that the very fact the applicant sought to appeal the refusal of an ICO demonstrated that an ICO was understood to be more favourable than full-time custody. The description of an ICO as a more lenient sentence has been adopted by the Court of Criminal Appeal on multiple occasions, and Buscombe DCJ's use of that characterisation involved no legal error.

On the application of s 66: The Court found that the sentencing judge had correctly followed the three-stage process required when considering whether a sentence of two years or less should be served by way of an ICO. Buscombe DCJ expressly identified community safety as the paramount consideration, as required by s 66(2), and treated the applicant's propensity for violence as the primary risk factor. The Court also confirmed that s 66(2) does not exclude other sentencing considerations bearing on community safety: it was not an error for the sentencing judge to take general deterrence into account under s 66(3).

The finding that full-time custody was "not more likely to address his risk of reoffending" than an ICO did not, by itself, require the sentencing judge to impose an ICO. The Court, following the High Court's reasoning in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, emphasised that a neutral or unresolved comparison on rehabilitation does not dictate the outcome, particularly where other aspects of community safety remain in play.

Orders Made

• Leave to appeal granted
• Each ground of appeal rejected
• Appeal dismissed

Key Takeaways

  • A sentencing judge's failure to find that an offender is "unlikely to reoffend" does not constitute legal error where the evidence does not compel that conclusion, and such a finding is not determinative of whether an ICO should be imposed.
  • Describing an ICO as an "act of leniency" relative to full-time custody reflects established Court of Criminal Appeal usage and does not constitute a sentencing error.
  • Under s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), community safety is the paramount consideration in ICO decisions; a finding that custody is no more likely than an ICO to address reoffending risk does not automatically favour the ICO, particularly where other dimensions of community safety remain relevant.
  • Section 66(3) permits a sentencing court to take general deterrence into account when considering ICO suitability, and doing so does not involve error.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that a sentencing decision may be finely balanced, and the availability of a different outcome does not establish appealable error: the question is whether the judge below made a legal error, not merely whether another outcome was open.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 21A, 66, 67, 72, 73, 73A
- Crimes (Administration of Sentences) Regulation 2014 (NSW), Pt 10, Div 2, cll 187, 189, 189A, 189B, 189C, 189D

Cases:
- Stanley v Director of Public Prosecutions (NSW) (2023) 97 ALJR 107; [2023] HCA 3
- Zheng v R [2023] NSWCCA 64
- Mandranis v R [2021] NSWCCA 97; (2021) 289 A Crim R 260
- R v Fangaloka [2019] NSWCCA 173
- Casella v R [2019] NSWCCA 201
- R v Cahill [2015] NSWCCA 53
- House v R (1936) 55 CLR 499; [1936] HCA 40