49 NSWLR 383
R v Dib [2003] NSWCCA 117
R v Robert Borkowski [2009] NSWCCA 102
197 A Crim R 1
R v Stambolis [2006] NSWCCA 56
Source
Original judgment source is linked above.
Catchwords
49 NSWLR 383
R v Dib [2003] NSWCCA 117
R v Robert Borkowski [2009] NSWCCA 102197 A Crim R 1
R v Stambolis [2006] NSWCCA 56
Judgment (1 paragraphs)
[1]
The Applicant's Role in the Offence and its Objective Gravity.
The thrust of the applicant's submission on these grounds is that whilst her Honour correctly recognised that the applicant played a subordinate role to that of Jafar ("the ringleader"), her Honour's assessment of the objective gravity of the offence was erroneously influenced by the infliction of cigarette burns by Jafar to the victim's body.
The applicant's counsel submitted on the hearing of the appeal that in the absence of evidence to suggest that the applicant knew that Jafar would inflict injuries of that nature, the finding that the offence objectively fell "in the upper end of the midrange" was not warranted.
As to this last submission, it must be observed that the applicant was sentenced on the basis that he participated in a joint criminal enterprise to detain and inflict harm upon the victim. As a participant, he was culpable for all of the acts carried out in the course of the enterprise, whether at his own hands or at the hands of the others. The applicant's counsel said that he did not cavil with that observation. Yet the submissions advanced on these grounds suggest that the infliction of the cigarette burns was somehow outside the scope of the joint criminal enterprise. No such submission was advanced before her Honour, nor could it have been without traversing the applicant's plea.
Apart from relating the agreed facts, which included a reference to the cigarette burns, her Honour made a series of references to those particular injuries when dealing with the objective gravity of the offence. Her Honour observed that the victim was "injured across multiple planes and areas of his body and head through the infliction of various types of injuries using not just hands and feet, but also tree branches and a cigarette." Next, her Honour observed that "the violence involved an aspect of cruelty insofar as a lit cigarette was applied to the victim's body in a couple of places."
Shortly thereafter, the judge said "the cruelty of which I have spoken adds a more sinister nature to the offence committed against this 16 year old victim." The next reference to a cigarette being applied to the victim's body occurred in the context of summarising a Crown submission.
These remarks are entirely justified and appropriate. There is no basis to the submission that the particular conduct of Jafar in inflicting cigarette burns upon the victim unduly elevated the assessment of the objective gravity of the offence. Notwithstanding the fact that the sentencing remarks were delivered ex tempore, they demonstrate a thorough and considered approach to all the objective and subjective factors.
I would refuse leave to rely upon these grounds.
In my view, leave to appeal ought be refused.
CAMPBELL J: I agree with Latham J.
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Decision last updated: 26 May 2017
This ground was argued by reference to the 10% discount identified by her Honour as appropriate to the utilitarian value of the plea. The applicant now asserts that the utilitarian benefit was greater than 10% because the timing of the plea allowed the Crown to make use of the applicant's evidence in the trial of the co-accused. It is then submitted that the utilitarian value of the plea is thus twofold, that is, it should reflect the benefit to the criminal justice system flowing from the applicant's plea and the benefit derived by the Crown from the applicant's evidence against the co-offender.
This is an audacious submission that finds no support in authority and runs counter to the distinction between the discount attributable to the utilitarian value of a plea of guilty and the discount attributable to the provision of assistance by an offender. That distinction, and the factors to which a court must have regard for the purposes of determining the extent of the discount on each basis, is reflected in separate statutory provisions in the Crimes (Sentencing Procedure) Act 1999, namely, s 22 and s 23.
The policy reasons underlying the respective discounts are entirely distinct. The former is based upon "the collateral benefits for the efficiency and effectiveness of the criminal justice system as a whole": per Spigelman CJ in R v Thompson and Houlton [2000] NSWCCA 309 at [115]. It is the timing of the plea that invariably drives the assessment of the discount: Regina v Dib [2003] NSWCCA 117; Regina v Stambolis [2006] NSWCCA 56 (2006) 160 A Crim R 510; R v Robert Borkowski [2009] NSWCCA 102.
The latter reflects the common law which has long recognised the public interest in offenders being encouraged "to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders in relation to whom they have given such information": R v Cartwright (1989) 17 NSWLR 243 at 252. An extensive consideration of the history of s 23 was undertaken in R v XX [2017] NSWCCA 90 by Beech-Jones J (Bathurst CJ and R A Hulme J agreeing), confirming the policy underlying the common law's approach to assistance to the authorities.
The adoption of the applicant's submission would result in an impermissible form of double dipping. The applicant ultimately submits that the "proper discount" for the plea ought to have resulted in a combined discount of 40% -45%.
Leaving to one side the complete lack of merit in these submissions, counsel who appeared on sentence also appeared on the hearing of the appeal in the knowledge that he had urged upon her Honour Judge Culver on sentence a combined discount of 35% in lieu of the combined discount of 30% pressed by the Crown. The applicant received the benefit of the combined discount advanced by his counsel, who now seeks to traverse it. I see no reason why the applicant should not be bound by his counsel's conduct below.