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Court of Criminal Appeal 27 June 2002

Regina v Sumeo [2002] NSWCCA 271 revised - 25

[2002] NSWCCA 271

Assault & violence
SENTENCING SENTENCES NOT EXCESSIVE

Citation: Regina v Sumeo [2002] NSWCCA 271 revised - 25/07/2002
Court: NSW Court of Criminal Appeal
Date: 27 June 2002
Judge(s): Smart AJ, Blanch AJ

Background

The applicant, a young man of Samoan background with mild intellectual disability and a significant alcohol problem, pleaded guilty to two serious offences of violence committed in 2000. Both offences involved unprovoked attacks on strangers at railway stations, in which the applicant stomped on the victims' heads and rummaged through their belongings. The applicant had no prior record of consequence.

The first offence occurred at Macquarie Fields station in September 2000, where the applicant attacked a 55-year-old man with a beer bottle and his feet, causing facial fractures requiring surgical repair with steel plates. The second, and graver, offence occurred at Narwee station in April 2000, where the applicant beat another man unconscious, kicked and stomped on his head, and then pushed him off the platform onto the railway tracks. The victim sustained a serious brain injury with long-term cognitive, emotional and behavioural impairment.

In the District Court, Judge Hock sentenced the applicant to a fixed term of four years for the robbery and eleven years with a seven-year non-parole period for the grievous bodily harm offence, partially accumulated. The effective total head sentence was thirteen years, with a combined fixed term and non-parole period of nine years. The applicant sought leave to appeal on the ground that those sentences were excessive.

  • Whether the head sentences imposed for each offence were manifestly excessive, having regard to the applicant's personal circumstances, including his intellectual disability, youth, lack of relevant prior criminal history, remorse, and early guilty pleas
  • Whether the District Court gave sufficient weight to the psychological and psychiatric evidence and to the factors mandated by the Crimes (Sentencing Procedure) Act 1999, including section 21A
  • Whether the length of the non-parole period was appropriate given the need for post-release rehabilitation and supervision

Decision

The Court of Criminal Appeal found no error in the sentences imposed by the District Court. Smart AJ described the criminality involved as being "of a very high order," observing that beating a man unconscious and throwing him onto railway tracks was a crime "of the gravest kind." The Court held that the head sentences were not only within permissible limits but that greater sentences could have been imposed. Lesser sentences, the Court stated, could not have been justified.

The partial accumulation of sentences was also upheld without difficulty. The principal issue raised was whether the non-parole period was too long. The Court acknowledged that the non-parole period, taken overall, exceeded three-quarters of the total sentence. Despite the applicant's rehabilitative needs, his intellectual disability, and the expert recommendations for ongoing supervision and support following release, the Court concluded that a total non-parole period of less than nine years could not have been imposed given the gravity of the offending.

The Court accepted that the applicant would require substantial post-release support, including alcohol counselling, anger management, and involvement of his family. However, those factors did not render the sentences excessive. The twenty-five per cent discount granted by the sentencing judge for the utilitarian value of early guilty pleas, together with the further allowance for remorse, were not challenged as insufficient.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentences for aggravated robbery and maliciously inflicting grievous bodily harm with intent can properly reach the upper range where the objective criminality is of a very high order, even where significant mitigating factors are present.
  • A non-parole period exceeding three-quarters of the head sentence is not automatically impermissible; the gravity of the offending can justify a departure from the standard proportion.
  • Personal mitigating circumstances, including mild intellectual disability, youth, absence of prior violent offending, remorse, and early guilty pleas, were weighed by the Court but did not override the demands of general and specific deterrence in cases involving serious and gratuitous violence.
  • Where a sentencing court has applied a discount for early guilty pleas and made allowance for remorse, an appellate court will not lightly interfere on the basis that those factors were insufficiently weighted unless clear error is demonstrated.
  • Rehabilitative needs identified in psychiatric and probation reports remain relevant to sentencing, but they do not require the court to impose a sentence that fails to reflect the objective gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A

Cases cited: None