Citation: REGINA v. KING [1999] NSWCCA 16 revised - 08/03/99
Court: NSW Court of Criminal Appeal
Date: 3 March 1999
Judge(s): Greg James J (principal judgment); Grove J; Dunford J (both agreeing)
Background
The respondent was convicted after trial of using an offensive instrument to prevent lawful apprehension, contrary to s.33B of the Crimes Act 1900, an offence carrying a maximum of 12 years penal servitude. The offence was committed on 1 December 1997 while the respondent was on a recognizance for a similar matter. He had a significant prior record of assaults on police while intoxicated.
The District Court sentenced the respondent to 12 months penal servitude, with a minimum term of six months and an additional term of six months. The Director of Public Prosecutions appealed, contending the sentence was manifestly inadequate.
By the time the appeal was heard on 3 March 1999, the minimum term was close to expiry. The Crown argued the sentence failed to reflect the objective gravity of the conduct and gave insufficient weight to personal deterrence, general deterrence, and community protection.
Legal Issues
- Whether the sentence imposed by the District Court was manifestly inadequate, justifying appellate intervention under s.5D of the Criminal Appeal Act 1912.
- Whether the sentencing judge erred in principle by failing to give sufficient weight to general and personal deterrence, the respondent's prior record, and the commission of the offence while on a recognizance.
- What sentence should be substituted if the appeal were allowed, having regard to double jeopardy, the respondent's personal circumstances, and the prospects of rehabilitation.
Decision
Greg James J reviewed the established threshold for Crown sentence appeals. A Crown appeal against inadequacy will not succeed merely because the appellate court would have imposed a heavier sentence. There must be a demonstrated error of principle or a misapprehension of fact, or the sentence must be so manifestly inadequate that the error can be inferred from the result itself.
The court accepted the Crown's submissions that the original sentence failed to adequately reflect the seriousness of the offence in context. The respondent's lengthy history of assaulting police while drunk, combined with his being on a recognizance at the time of the offence, made this far from an isolated lapse. The sentencing judge's emphasis on rehabilitation, while not improper in principle, was found to have been applied in a way that gave insufficient weight to general deterrence and denunciation of conduct directed at police officers.
The court acknowledged several factors pulling against a large increase: the double jeopardy principle that applies in Crown appeals, the imminent expiry of the custodial term, the respondent's medical and physical problems, and a genuine basis for expecting rehabilitation with proper supervision. The court noted that any corrective sentence should sit toward the lower end of the available range, given the breadth of conduct that could constitute more serious offences under s.33B.
Balancing these considerations, the court found the original sentence manifestly inadequate and substituted a new sentence designed to reflect denunciation and deterrence while preserving a realistic prospect of rehabilitation through a lengthy supervisory period on parole.
Orders Made
- Appeal allowed; original sentence quashed.
- New sentence of penal servitude for 2 years and 6 months substituted, comprising:
- Minimum term of 12 months, commencing 2 October 1998 and expiring 1 October 1999.
- Additional term of 18 months, commencing 2 October 1999 and expiring 1 April 2001.
- The respondent ordered to be released to parole, subject to supervision under the terms and conditions prescribed by Form 2 of the Sentencing (General) Regulations 1996.
- Special circumstances found, extending the additional term to allow for supervision to address the respondent's alcoholism and other physical disabilities.
Key Takeaways
- A Crown appeal against sentence requires more than a finding that the appellate court would have imposed a heavier penalty; the sentence must be manifestly inadequate or the sentencing judge must have acted on a wrong principle or misapplied the evidence.
- The Court of Criminal Appeal confirmed that offences under s.33B of the Crimes Act 1900 are regarded seriously, particularly where directed at police officers performing difficult duties, and that sentences must sufficiently reflect general deterrence in that context.
- Where a respondent's criminal history discloses a continuing pattern of similar conduct rather than an isolated incident, the sentencing court must give heightened weight to personal deterrence, retribution, and community protection.
- Commission of an offence while on a recognizance for a similar matter is a relevant aggravating circumstance that the sentencing court must adequately address in the exercise of its discretion.
- In substituting sentence on a Crown appeal, the double jeopardy principle requires that the new sentence be pitched toward the lower end of the available range, and the court may extend the additional (parole) term where the respondent's personal circumstances point to a need for lengthy community supervision.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s.33B
- Criminal Appeal Act 1912 (NSW), s.5D
- Sentencing Act (NSW), s.5
- Sentencing (General) Regulations 1996 (NSW), Form 2
Cases
- Griffiths v The Queen (1977) 137 CLR 293
- Everett v The Queen (1994) 181 CLR 295
- Malvaso v The Queen (1989) 168 CLR 227
- Cranssen v The Queen (1936) 55 CLR 509
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Regina v Allpass (1994) 72 A Crim R 561
- Regina v Hallocoglu (1992) 29 NSWLR 67
- Regina v Hayes (1987) 29 A Crim R 452
- The Queen v Hamilton (1993) 66 A Crim R 575
- The Queen v Osenkowski (1982) 30 SASR 212