Citation: Usaia v R [2023] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 24 March 2023
Judge(s): Beech-Jones CJ at CL, Button J, McNaughton J
Background
The applicant pleaded guilty to numerous violent offences arising from an incident outside a King's Cross nightclub on 19 October 2019. The offences involved serious assaults on multiple police officers, including causing actual bodily harm and grievous bodily harm, as well as affray. The applicant was a large man in his mid-thirties at the time of the offending.
At first instance, Judge Shead SC DCJ in the District Court sentenced the applicant on 21 January 2021. The sentencing involved offences dealt with in three different ways: two substantive offences heard directly before her Honour, additional offences listed on a Form 1 (matters taken into account without separate conviction), and further offences dealt with on a certificate under s 166 of the Criminal Procedure Act 1986. An aggregate head sentence of 8 years with a non-parole period of 4 years was imposed.
The applicant appealed, contending that the sentencing judge had made a legal error by referring to standard non-parole periods in relation to the certificate offences, and also raising grounds about specific deterrence and manifest excess.
Legal Issues
- Whether the sentencing judge erred by applying standard non-parole periods to certificate offences that were being dealt with notionally in the Local Court, where no standard non-parole periods apply.
- Whether the sentencing judge failed to give adequate weight to the applicant's cognitive disability in assessing specific deterrence.
- Whether the aggregate sentence imposed was manifestly excessive.
Decision
Ground 1: Standard non-parole periods (upheld)
The combined effect of s 54D of the Crimes (Sentencing Procedure) Act 1999 and s 168 of the Criminal Procedure Act 1986 is that standard non-parole periods do not apply to certificate offences, because those offences are dealt with notionally in the Local Court. The Crown's written submissions at first instance contained a legal slip suggesting otherwise, and defence counsel did not correct it. The sentencing judge replicated the error.
Button J identified three matters that demonstrated the error was material. Her Honour explicitly referenced the inapplicable standard non-parole periods at paragraph 211 of her remarks on sentence. She also imposed non-parole periods within the indicative sentences for the certificate offences, which was unnecessary. Further, a comparison of the aggregate head sentence with the sentences for the substantive offences indicated that the certificate offences played a significant role in the ultimate outcome. Drawing on the Court of Criminal Appeal's reasoning in BP v R [2010] NSWCCA 159, Button J held that once an irrelevant consideration has been wrongly referred to, there is a real risk it may have affected the sentencing discretion, even unconsciously. The first ground was upheld.
Ground 2: Specific deterrence and cognitive disability (dismissed)
Button J dismissed this ground on the basis that the sentencing judge had expressly accepted the defence submissions about the applicant's cognitive impairments and their effect on sentencing factors, including deterrence. No failure to give proper weight to cognitive disability was established.
Ground 3: Manifest excess (not determined)
Given that resentencing was required, the manifest excess ground did not need to be resolved. The submissions in support of it were taken into account in the resentencing exercise.
Resentence
On resentencing, Button J applied a somewhat shorter aggregate head sentence of 7 years, with a non-parole period of 3 years 6 months. The court otherwise adopted the findings of fact and the sentencing approach of the judge at first instance, with no invitation from either party to depart from them in any material respect.
Orders Made
- Leave to appeal against sentence granted.
- Appeal against sentence allowed; aggregate sentence imposed at first instance quashed.
- Aggregate head sentence of imprisonment for 7 years imposed, commencing 3 November 2019 and expiring 2 November 2026.
- Aggregate non-parole period of 3 years 6 months imposed, expiring 2 May 2023.
- First eligible date for release to parole: 2 May 2023.
Key Takeaways
- Under the combined operation of s 54D of the Crimes (Sentencing Procedure) Act 1999 and s 168 of the Criminal Procedure Act 1986, standard non-parole periods do not apply to offences dealt with on a certificate, because those offences are treated as notionally before the Local Court.
- A sentencing judge's reference to a legally inapplicable standard non-parole period constitutes a material error, even where the judge indicates an intention to depart from it. The mere act of reflecting on an irrelevant consideration creates a real risk of unconscious influence on the exercise of the sentencing discretion.
- The Court of Criminal Appeal confirmed this principle by analogy with its earlier decision in BP v R [2010] NSWCCA 159, which addressed a comparable error arising from the application of standard non-parole periods to an offender under 18 years of age.
- Where a sentencing judge expressly accepts defence submissions on a particular sentencing consideration, grounds of appeal asserting a failure to take that consideration into account will face significant difficulty.
- In allowing the appeal, the Court of Criminal Appeal reduced the aggregate head sentence from 8 years to 7 years, and the aggregate non-parole period from 4 years to 3 years 6 months, otherwise preserving the framework and findings from the sentencing at first instance.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 166, 168
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 54D
Cases
- BP v R [2010] NSWCCA 159