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Court of Criminal Appeal 7 April 2004

Regina v Keri Damon Mako [2004] NSWCCA 90 revised - 1

[2004] NSWCCA 90

Assault & violence
CRIMINAL LAW SENTENCING FORM OF SENTENCE UTILITARIAN VALUE OF PLEA OF GUILTY

Citation: Regina v Keri Damon Mako [2004] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 7 April 2004
Judges: Dunford J (primary judgment); Studdert J and James J (agreeing)

Background

The appellant pleaded guilty in the District Court at Gosford to one count of maliciously inflicting grievous bodily harm, contrary to s 35(1)(b) of the Crimes Act 1900, which carries a maximum penalty of seven years imprisonment. The offence arose from an incident in the early hours of 5 November 2002, when the appellant cut the throat of his brother's girlfriend with a pair of scissors while travelling in a car, causing a 10-centimetre laceration requiring ten sutures. He was intoxicated at the time and later admitted he acted out of anger at his brother.

At sentencing, the District Court noted the appellant's early guilty plea, his remorse, his supportive family, his prior criminal history (including assault convictions), and his drug and alcohol dependency. The sentencing judge found special circumstances relating to rehabilitation prospects and imposed a total term of three years imprisonment with a non-parole period of two years, backdated to 5 November 2002.

The appellant appealed against that sentence to the Court of Criminal Appeal. Two grounds were argued: first, that the sentencing judge had applied the wrong procedural form under s 44 of the Crimes (Sentencing Procedure) Act 1999; and second, that the judge had failed to apply a proper discount for the utilitarian value of the guilty plea.

  • Whether the sentencing judge erred in applying the post-amendment form of s 44 (applicable to offences committed on or after 1 February 2003) to an offence committed before that date
  • Whether the sentencing judge failed to allow an adequate discount for the utilitarian value of the guilty plea, in accordance with the principles in R v Thomson

Decision

On the s 44 procedural error: The Court confirmed that s 44 existed in two distinct forms depending on the date of the offence. For offences committed before 1 February 2003, the court was required to fix the head sentence first and then set a non-parole period. For offences committed on or after that date, the non-parole period is set first. Because this offence occurred on 4 November 2002, the pre-amendment form applied, but the sentencing judge had used the post-amendment structure. This constituted a legal error requiring re-sentencing.

On the guilty plea discount: The Court rejected this ground. It concluded from the overall circumstances, including the two explicit references to the early guilty plea and the comparatively lenient outcome given the appellant's prior record, that the sentencing judge had in fact allowed a discount within the range established in R v Thomson. No error in this respect was demonstrated.

On re-sentencing: Because re-sentencing was required on the procedural ground, the Court admitted fresh affidavit evidence about the appellant's progress in custody and his participation in a "Closure Conference" with the victim's family. The Court noted that the victim had forgiven the appellant, but observed that victim forgiveness carries only limited relevance to sentencing, citing R v Rowe and R v Glen. The appellant's progress in custody was largely as the sentencing judge had anticipated. Taking all matters into account, the Court was not satisfied that a lesser penalty was warranted. The overall sentence of three years with a two-year non-parole period was confirmed as appropriate for the seriousness of the offence and the appellant's record.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • Appellant re-sentenced to imprisonment for three years, commencing 5 November 2002
  • Non-parole period of two years fixed, expiring 4 November 2004
  • Order for release on parole at expiration of non-parole period confirmed, subject to conditions specified by the District Court

Key Takeaways

  • The procedural sequence in s 44 of the Crimes (Sentencing Procedure) Act 1999 differs depending on whether the offence was committed before or after 1 February 2003. Applying the wrong form constitutes a legal error, even where the intended penalty is otherwise clear.
  • Re-sentencing following such an error opens the door to fresh evidence about events occurring after the original sentencing, including evidence of post-sentence rehabilitation and restorative justice processes.
  • Victim forgiveness, while not irrelevant, carries only limited weight in sentencing, consistent with R v Rowe and R v Glen.
  • A sentencing court's failure to expressly articulate a guilty plea discount will not automatically establish error on appeal. Where the overall sentence and the judge's reasons are consistent with a discount having been applied, no error may be found.
  • Where the Court of Criminal Appeal re-sentences and finds the original penalty was within the appropriate range, it will impose the same effective sentence even after correcting a procedural error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 35
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21, 44
- Crimes (Sentencing Procedures) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Criminal Appeal Act 1912 (NSW) s 6

Cases:
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Rowe (1996) A Crim R 467
- R v Glen (CCA, 19 December 1994)
- R v Galati [2003] NSWCCA 148
- R v Hansen [2002] NSWCCA 321
- R v Lloyd [2003] NSWCCA 49