AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 12 June 2024

Acton v R

[2024] NSWCCA 92

Assault & violenceFirearms & weapons
CRIME APPEALS APPEALS AGAINST SENTENCE GROUND 2 UPHELD APPLICANT RE SENTENCED

Citation: Acton v R [2024] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 12 June 2024
Judge(s): Ward P at [1]; Hamill J at [2]; Chen J at [6]

Background

The applicant pleaded guilty to three offences arising from a single incident at shared commercial premises in South Nowra. He broke into the premises through a hole in wire fencing and, when confronted by two people at the site, brandished a knife toward each of them. During that confrontation, one victim's hooded jumper sustained a 13-centimetre cut across the front.

The applicant was convicted and sentenced in the District Court on 23 February 2023. The sentencing judge imposed an aggregate sentence of four years, with a non-parole period of two years and six months, incorporating a 25 per cent discount for the applicant's early guilty pleas.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: first, that the guilty plea discount had been applied to the aggregate sentence rather than the individual indicative sentences (contrary to the statutory requirement); and second, that the sentencing judge had made an erroneous factual finding that he had intentionally used the knife to slash across a victim's torso.

  • Whether the sentencing judge erred by applying the guilty plea discount to the aggregate sentence rather than to the indicative sentences for each offence, as required by s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether that error, if established, bypassed the totality principle and amounted to impermissible "reverse engineering"
  • Whether the sentencing judge erred in finding beyond reasonable doubt that the applicant had intentionally used the knife to slash across the victim's torso, in circumstances where the agreed facts and CCTV footage were equally consistent with the cut occurring as the applicant attempted to retrieve the knife from his pocket

Decision

Ground 1: Guilty plea discount methodology

The Court dismissed the first ground. Although the order in which the sentencing judge announced the sentence could have been clearer, the arithmetic told a different story. Hamill J noted that if the 25 per cent discount had been applied directly to the aggregate sentence, the pre-discount starting point would have been a non-round and highly unlikely figure (approximately 5.33 years). By contrast, each indicative sentence corresponded neatly to a round number reduced by 25 per cent. The more logical inference was that the judge correctly applied the discount to each indicative sentence first and then addressed accumulation and totality before arriving at the aggregate.

Chen J, whose reasons were agreed to by the other members of the Court, also concluded that the sentencing remarks, read as a whole, did not support the inference that the judge had engaged in impermissible reverse engineering, fitting the indicative sentences retrospectively to a pre-determined aggregate.

Ground 2: Factual finding about intentional knife use

The Court upheld the second ground. The agreed facts and CCTV footage did not support a finding beyond reasonable doubt that the applicant had deliberately slashed the knife across the victim's torso. An equally consistent hypothesis was that the cut to the jumper occurred as the applicant was pulling the knife from his pocket. That reasonable doubt was required to be resolved in the applicant's favour, and the erroneous finding had played a significant role in the indicative sentence imposed for that offence.

The Court re-sentenced the applicant on all offences. Applying a 25 per cent discount to revised indicative sentences, and taking into account totality and the general nature of the offending as a single course of conduct with discrete acts warranting some accumulation, the Court imposed a reduced aggregate sentence.

Orders Made

  • Leave to appeal against the sentence imposed on 23 February 2023 was granted
  • The appeal was allowed
  • The sentence of 23 February 2023 was quashed and replaced with an aggregate sentence of 3 years and 6 months' imprisonment, with a non-parole period of 2 years and 3 months, commencing 22 April 2022
  • The applicant became eligible for release on parole on 21 July 2024, with the sentence expiring on 21 October 2025

Key Takeaways

  • Under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the guilty plea discount must be applied to indicative sentences for individual offences, not to the aggregate sentence; however, a departure from the preferred order of announcement does not automatically constitute a legal error if the arithmetic demonstrates the correct approach was in fact adopted.
  • Where sentencing remarks are ambiguous as to methodology, courts will draw the more logical arithmetical inference from the sentences actually imposed rather than treating formal sequencing alone as determinative of error.
  • A factual finding made at sentence to the criminal standard (beyond reasonable doubt) cannot stand where the evidence is equally consistent with an innocent explanation; the reasonable doubt principle applies at the sentencing stage to disputed facts that aggravate the offending.
  • In dismissing ground 1, the Court of Criminal Appeal confirmed that "reverse engineering" (working backward from an aggregate to fit indicative sentences) is impermissible, while also confirming that careful attention to the arithmetic can rebut an allegation that this occurred.
  • Where an erroneous factual finding at sentence is shown to have materially influenced an indicative sentence, the Court of Criminal Appeal will re-sentence the applicant on all offences afresh, applying the Kentwell principles.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- AM v R [2024] NSWCCA 26
- Aryal v R [2021] NSWCCA 2
- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
- Betts v The Queen (2016) 258 CLR 420
- Bugmy v The Queen (2013) 249 CLR 571
- Davis v R [2015] NSWCCA 90
- Dean v R [2020] NSWCCA 317
- DL v The Queen (2018) 265 CLR 215
- DS v R; DM v R (2022) 109 NSWLR 82
- Elsaj v R [2017] NSWCCA 124
- Hurt v The King [2024] HCA 8
- Johnson v The Queen [2004] HCA 15
- Kentwell v The Queen (2014) 252 CLR 601
- Lehn v R (2016) 93 NSWLR 205
- Markarian v The Queen (2005) 228 CLR 357
- Maxwell v The Queen (1996) 184 CLR 501
- Moodie v The Queen [2020] NSWCCA 160