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Court of Criminal Appeal 27 September 2002

Regina v Salim Miski [2002] NSWCCA 392 revised - 27

[2002] NSWCCA 392

Assault & violenceDrugsTheft & property
APPEAL AGAINST SENTENCE ON BAIL AND ON A SUSPENDED SENTENCE SENTENCES NOT MANIFESTLY EXCESSIVE SENTENCE REDUCED.

Citation: Regina v Salim Miski [2002] NSWCCA 392
Court: NSW Court of Criminal Appeal
Date: 27 September 2002
Judge(s): Buddin J; Smart AJ

Background

The applicant, a young man then just short of his twentieth birthday, was sentenced in the District Court in October 2001 following guilty pleas to two offences: stealing from the person and assault occasioning actual bodily harm. The offences arose from an incident at Kings Cross in April 2001, in which he snatched a mobile phone from a victim, then punched the victim in the mouth during a confrontation, causing lip abrasions and bleeding.

The applicant had a substantial prior record, including 77 dishonesty offences dealt with in the Children's Court, subsequent Local Court convictions, and a twelve-month suspended sentence for dishonesty offences. He was on bail and in breach of that suspended sentence when he committed the present offences. He had also failed to comply with reporting and supervision conditions attached to his bail.

The District Court imposed four years' imprisonment with a three-year non-parole period for the stealing offence, and a concurrent fixed term of twelve months for the assault. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentences imposed by the District Court were manifestly excessive, having regard to the applicant's age, background, drug dependence, and plea of guilty.
  • Whether fresh evidence concerning the nature and duration of the applicant's protective custody warranted the Court of Criminal Appeal receiving that material and intervening to re-sentence.
  • Whether "special circumstances" existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify extending the parole period beyond the statutory norm.

Decision

The Court of Criminal Appeal found that the sentences were not manifestly excessive when viewed in light of the applicant's serious criminal history, his repeated breaches of court orders, his commission of the offences while on bail and on a suspended sentence, and the objective seriousness of the conduct. The sentencing judge had correctly applied a 20% discount for the early guilty pleas and had acknowledged the applicant's drug dependence and background.

However, fresh evidence placed before the Court of Criminal Appeal revealed that the applicant had by that point spent 286 days in protective custody and would remain so until at least December 2002. The material before the sentencing judge had suggested only a brief period on "strict protection," and that it may have resulted from the applicant's own disruptive behaviour. The new evidence disclosed an entirely different picture, and the Court accepted it as revealing the true significance of facts that existed at the time of sentencing.

The Court held that this material warranted intervention. The conditions of protective custody were described as onerous and particularly burdensome, and as an environment not conducive to rehabilitation. Although the applicant had been able to participate in some educational programs, he was required to be segregated from the general prison population to do so.

Buddin J found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, citing the applicant's age, his need for rehabilitation, and specifically the fact that he was serving his sentence in protective custody. The assault sentence was confirmed, but the sentence for stealing from the person was reduced to three and a half years with a non-parole period of two years and three months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • Sentence for stealing from the person quashed and replaced with imprisonment for three and a half years, commencing 30 April 2001 and expiring 29 October 2004, with a non-parole period of two years and three months commencing 30 April 2001 and expiring 29 July 2003.
  • Sentence for assault occasioning actual bodily harm (concurrent fixed term of twelve months) confirmed.

Key Takeaways

  • Where fresh evidence reveals the true significance of facts that existed at the time of sentencing, the Court of Criminal Appeal may receive that material and use it as a basis to intervene and re-sentence, even if the original sentences were not manifestly excessive on their face.
  • Protective custody conditions can constitute "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, particularly when combined with the offender's youth and rehabilitative needs, justifying a longer parole period relative to the non-parole period.
  • Sentences were not manifestly excessive despite the offender's youth and drug dependence, given the combination of a poor prior record, repeated breaches of court orders, and offending while on bail and a suspended sentence.
  • A 20% discount for an early guilty plea was confirmed as appropriate in line with the principles in R v Thomson & Houlton (2000) 49 NSWLR 383.
  • The Court of Criminal Appeal confirmed its power to partly allow an appeal, quashing and substituting one sentence while confirming the other, where only one of two concurrent sentences warranted reduction.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- R v Bailey (1988) 35 A Crim R 458
- R v Bloomfield (NSWCCA, unreported, 15 July 1998)
- R v Doan (2000) 50 NSWLR 115
- R v Nichols (1991) 57 A Crim R 391
- R v Pham (1991) 55 A Crim R 128
- R v Simpson (2001) 53 NSWLR 704
- R v Smith (1987) 44 SASR 587
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Tran [1999] NSWCCA 109