Solicitors:
Ms S E O'Connor, Legal Aid Commission (applicant)
Mr C Hyland, Office of the Director of Public Prosecutions (respondent)
File Number(s): 2014/223087
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Citation: Not published
Date of Decision: 12 June 2015
Before: Culver DCJ
File Number(s): 2014/223087
[2]
Judgment
PAYNE JA: I agree with Fagan J, for the reason he gives, that the appeal should be allowed. I agree with the orders proposed by Fagan J.
FAGAN J: The applicant, Marial Marial, was sentenced on 12 June 2015 by her Honour Judge Culver on one count that he did in company wound Diego Arias and was reckless as to causing actual bodily harm. The offence was committed on 28 July 2014.
The applicant was 21 years old at the time and 22 when he was sentenced. He had pleaded guilty in the Local Court. He now applies for leave to appeal against the sentence imposed, which was imprisonment for a non‑parole period of 3 years 6 months dating from his arrest on the night of the offence and a balance of term of a further 3 years 6 months. The offence was contrary to s 35(3) of the Crimes Act 1900 (NSW) which prescribes a maximum penalty of ten years imprisonment. A standard non-parole period of four years is applicable.
The objective facts of the offence were not in dispute. They disclose a very serious offence of this type. The victim, Mr Arias, was walking from a hotel towards his apartment in Guildford at about 8.30pm on 28 July 2014 carrying a six pack of beers which he had just purchased. Three Sudanese males - the applicant, his co-offender Majok Akot and a third man - were standing near the stairs of a unit complex which was on Mr Arias's route home. Mr Arias politely asked these young men if they had a light for his cigarette. One of the three snatched Mr Arias's cigarette from him. Mr Arias sought to calm this aggression by offering cigarettes from a pack. One of the males grabbed a handful of cigarettes, then a fourth male joined the group.
Without warning either the applicant or Akot, the evidence did not establish which, stabbed Mr Arias below his right eye with a ballpoint pen. It penetrated his cheek to about two centimetres depth and broke off. During the further assaults which followed and when the course of the assaults had ended this wound bled profusely. Surgery was later required to remove the broken off pen. Temporary paraesthesia around the eye cavity and loss of sensation in the right cheek have since resolved.
When stabbed in this fashion, the victim's immediate response was to try to placate the four young men. He held out the beers he was carrying and offered them. The four responded by coming towards him aggressively. Fearing further attack he pushed one of them back but all four, including the applicant, came on punching. Mr Arias retreated, raised his arms defensively, then fell to the ground and dropped his beer as he tried to get away. The applicant and one of the other Sudanese males punched and kicked him on the ground. Mr Arias managed to get to his feet and to flee to the entrance of his own apartment block which was close by. As he pressed the intercom buttons to try to call his brother down from the apartment to help him, the applicant and one of the other males continued to punch him. When his brother emerged from the building and came to his aid he saw Mr Arias on his knees being held by his shirt whilst he was punched in the head by the applicant and the other male.
Witnesses called police and the applicant and Akot were arrested. The applicant's blood alcohol reading shortly after he was arrested was 0.33%. Akot's reading was 0.28%.
The applicant is criminally responsible for the stabbing with the ballpoint pen as part of a joint criminal enterprise with Akot, although there was no admission or other evidence to isolate which of the two had actually inflicted this wound. This crude stabbing, coupled with the ensuing attack upon the victim by kicking and punching, was a vicious, sustained and entirely unprovoked episode of street violence. It was extremely cowardly. It was persisted in despite the victim's repeated attempts to placate and to retreat. It proceeded in stages. First the pen stabbing, then the punching which brought the victim to the ground, then his flight to his home unit block.
At any of a number of points the applicant could have stopped, but did not. He continued with ferocity and was only halted in his holding down and beating the victim, aided by his co-offender, when the victim's brother arrived at the scene.
Police examination of the crime scene revealed a trail of blood from the location where Mr Arias was first attacked and from where he was kicked and beaten on the ground to the front door of his unit block. The door handle at the entrance to the unit block and the intercom were extensively blood spattered.
The gravamen of the criminality in this offence, which explains the relatively high maximum penalty, lies in the element of acting in company. It is a very serious form of violent offence against the person for an assailant to join with others to overwhelm and assault a single victim. An attack in company is necessarily extremely intimidating for the victim and carries the high risk of really serious harm being occasioned because the victim will usually be quite unable to defend himself or to limit the damage to himself in the face of numbers.
The learned sentencing judge correctly appreciated all of the objectively serious features of the offence. Her Honour expressly did not assume that the applicant had inflicted the stab wound with the pen. Her Honour characterised the offence as "at least in the mid-range level of seriousness for this offence".
As the applicant's plea of guilty had been entered in the Local Court, her Honour gave him the benefit of a 25% discount on the sentence which she would otherwise have considered appropriate. That implies a starting point, or undiscounted sentence, of 4 years 8 months non-parole period with a balance of term of the same length again.
His subjective circumstances are as follows. First, his record did not entitle him to any leniency. In March 2012, at age 20, he committed offences of possessing a restricted drug and using offensive language in a public place. In January 2013, still at age 20, he was carried in a vehicle taken without the consent of the owner. He was put on 18 months supervised probation for this by a court order made on 15 October 2013. This order continued in force at the date of the subject offence. Between committing the offence relating to the vehicle in January 2013 and being dealt with in October of that year for that offence, he committed, on 6 July 2013, offences of driving whilst his licence was suspended, refusing to submit to a breath test and driving negligently.
On 6 May 2014, at age 21, the applicant committed offences of being in possession of goods suspected of having been stolen, fare evasion and giving a false name. He was sentenced to imprisonment for 1 month on the first of these charges. He served that one month during his remand from 28 July 2014 on the charge which is now before this Court. Her Honour backdated the sentence which she imposed for the subject offence to the date of his arrest and thereby allowed it to be served concurrently with the 1 month for the unrelated matter.
In short the applicant has, since the age of 20, made himself a petty street criminal. The fact that he was on a bond under supervision at the date of the subject offence was properly taken into account by her Honour.
Her Honour, justifiably, treated the applicant's expression of remorse in his oral evidence on sentence as late and minimal. To his psychologist on 10 June 2015 he said that in the incident "he felt threatened by the victim and reacted accordingly, he said he felt his charges were unfair because he had been the victim, he expressed regret specifically related to his loss of freedom and the effect this had on family". His claimed feeling of being threatened is clearly not accurate in view of his plea on the basis of the facts which I have recited. The only regret he expressed to the psychologist was not for harm to the victim or for his own unprovoked violence towards an innocent stranger, it was regret for himself and his family.
A three‑page letter from the applicant was before her Honour, apparently written close to the sentence hearing. It contains a number of complaints about non-specific racism he says he has experienced in Australia. There is no connection made between whatever he was referring to in that regard and the vicious behaviour for which he was before the District Court. This letter again expressed regret for the effects of his criminal conduct upon his family, being his mother and sister, however this was a self-centred expression revealing no appreciation of his criminality on the occasion which is now before this Court and its consequences for the victim.
The sole expression of regret for this impact was when directly asked by his counsel in the sentence hearing, followed immediately by an assertion that as a result of the alcohol ingested he had amnesia and knew no more than that "I did something wrong". This, of course, is contradictory of what he told his psychologist to whom he said that he recalled the events and that he had acted defensively. He claimed amnesia about the events in an implausible manner. The finding of the learned sentencing judge that he should be treated as having shown some belated remorse was very favourable to him.
The applicant was born in Sudan in October 1992. He witnessed extreme violence there during his childhood and suffered terrible violence himself. His mother brought him and his sister to Australia at age 11 in 2003. He became an Australian citizen two years later. His psychologist assessed him as suffering post-traumatic stress disorder as a result of his childhood experiences. He said in evidence that he suffered flashbacks to disturbing early experiences and that he was haunted by those memories. He told his psychologist the he commenced drinking alcohol when he was 12 years old. In his letter to the Court earlier referred to, he said the age was 17 or 18. He also told the psychologist that he had used cannabis, cocaine, heroin and methylamphetamine variously since he was 15 years of age.
Her Honour properly applied the principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [44] as expressed in the following passage:
"An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender".
Much the same concept has been stated by the High Court in Veen (No 2) v R (1988) 164 CLR 465; [1988] HCA 14 with respect to mental illness. That is, although mental illness may have contributed to the commission of offences in a way which would make it inappropriate to give full effect to the objective of general deterrence because the offender is not a suitable vehicle for making an example for others who might offend, if the mental illness constitutes a danger to society then the countervailing sentencing consideration of protecting the public may incline the court towards imposing a longer sentence.
The learned sentencing judge did not see any causal connection between the post-traumatic stress disorder which the offender's psychologist had identified and the commission of this offence. At the time of this offence the applicant had been living in Australia from age 11 to age 21. He had during that period been supported on social security for himself and his family, received an education and completed year 12 at high school. He has not had employment since ceasing school.
Ground 1 of the appeal is as follows:
"Her Honour failed to sentence the applicant in accordance with her Honour's finding of mid-range seriousness."
This ground was argued on the basis, first, that the sentence imposed implies a starting point, before discount for the early plea, of 4 years 8 months non‑parole period which is greater than the standard non-parole period of 4 years. Yet, so the argument runs, a starting point of no more than 4 years should have been adopted because her Honour found that the offence was "at least in the mid-range level of seriousness".
According to s 54A(2) of the Crimes (Sentencing Procedure) Act (NSW):
"The standard non-parole period represents the non-parole period for an offence that taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness".
On a sentence appeal where there is no dispute between the Crown and the applicant for leave concerning the level of discount which has been applied at first instance, this Court has said that it is legitimate to examine the appropriateness of the starting point or undiscounted sentence which was expressly adopted by the sentencing judge or which may be calculated from the actual sentence imposed: TYN v R [2009] NSWCCA 146; McGeown v R [2014] NSWCCA 314. In Graham v R [2009] NSWCCA 212 at [40] it was observed that, consistently with these decisions, in an appeal on the ground that a sentence imposed was manifestly excessive the focus needs to be on the sentence actually passed.
There is no discrepancy or tension between on the one hand her Honour's adoption of an undiscounted non-parole period of 4 years 8 months and on the other hand the finding that the offence was at least in the mid-range level of seriousness. This is not a precise description of where the objective facts lay on the scale of relative seriousness. It indicates a finding of something above mid-level seriousness or, put another way, at the upper end of a bracket of offending which would lie at the mid-range. That understanding is apparent from her Honour's adoption of a non-parole period which is just 16% above the standard period prescribed by the table under s 54D of the Crimes (Sentencing Procedure) Act on an undiscounted basis.
With due respect to her Honour, the use of the phrase "at least" might better have been avoided because it tends to render the finding indeterminate. However, in this case, when coupled with the undiscounted non-parole period actually adopted, the meaning of her Honour's characterisation of the objective seriousness becomes clear enough.
The applicant also argues that her Honour erred in adopting an undiscounted balance of term of a further 4 years 8 months. That took the undiscounted total sentence to 9 years 4 months, which is only 8 months short of the maximum penalty. I accept that that cannot be reconciled to her Honour's finding as to the degree of objective seriousness, interpreted as stated earlier. The adoption of this starting point for the balance of term has carried through into a balance of term, after allowing the discount for early plea, of 3 years 6 months giving rise to an overall sentence actually imposed of 7 years. Because this is derived from a starting point overall sentence which is out of conformity with the finding as to objective seriousness, it involves error.
I would, therefore, grant leave and uphold this ground of appeal and proceed to re-sentence.
Ground 2 of the appeal is:
"The sentence imposed was manifestly excessive."
As I consider the applicant should be granted leave and that his appeal should be upheld on ground 1, it is not strictly necessary to consider this second ground. It has been argued by comparison with sentence results in three other unrelated cases where lower sentences were imposed for offending which the applicant says was at least of the same order of seriousness as his own. It is useful to review the cases cited, for their relevance to the task of re-sentencing the applicant.
In date order the first of these was AI v R; R v SB and AI [2011] NSWCCA 95. The relevant offender in that case, AI, was a juvenile at the time of the offence, which creates an immediate difficulty for comparison with the present case. Although AI commenced the confrontation between the three offenders and two victims in that case, the two victims were the first to engage in physical assault albeit they were provoked. It was not a sustained pursuing type of attack by the three offenders, unlike the present case. AI was carrying a knife but although he wielded it he did not inflict any wound. His only assault was a kick to one of the two victims who was on the ground. One of his co-offenders stabbed one of the victims.
This Court considered the objective seriousness of AI's offence to be at or above the middle range of seriousness. He had favourable subjective circumstances, having migrated to Australia from a war torn country (in this case Lebanon) in which he had spent his childhood. On the other hand he was, at the time of the offence, on parole for an offence of violence. This Court considered a non-parole period of 2 years with a balance of term of a further 2 years would have been "at the very bottom of the available range". Comparison of that case with the present does not show that her Honour's sentencing decision has produced an inconsistency in the application of the criminal law.
In the next case cited by the applicant, R v Maea [2011] NSWDC 215, the offender suffered from serious chronic mental illness involving psychosis. In a Centrelink office, being upset by his dealings with Commonwealth officers, he perpetrated violence against those officers and against bystanders. It was quite a different set of circumstances from the present. It was not a case, as the present, of a person loitering on a street heavily intoxicated and attacking a random passer-by. There was an explanation of the violence. A sentence of 2 years non-parole period and a further 2 years balance of term on a plea was imposed. Comparison of the circumstances of that case with those of the present indicate that this case would warrant significantly higher penalty.
In the third case cited, Chen v R [2013] NSWCCA 116, a group of people were leaving a club. The offender was passing by and kicked one of the group and inflicted a slash wound with a knife. This was a very brief incident between people who encountered each other on the street spontaneously. Neither was known to the other, it was unprovoked but it was not sustained. On the latter ground it bears a significant difference from the facts of the present case. The pursuit of Mr Arias in the face of his gestures of peace and the ferocity of the applicant's violence over a period of time marks out his offending as significantly more serious than that in Chen's case. The lower penalty imposed in Chen's case, of 18 months non‑parole period with a balance of term of 18 months, is explicable by these differences. It does not indicate any inconsistency with the sentencing pattern arising from what her Honour imposed.
For these reasons, I would reject ground 2.
Ground 3 concerns parity with the sentence imposed on the co-offender Akot. Again, this comparison is not directly necessary for the purpose of concluding that the sentence imposed by her Honour must be quashed but it is an important consideration for re-sentencing, to which I will turn shortly. Akot was charged with assault with intent to rob contrary to s 98 of the Crimes Act. The maximum penalty for that offence is 25 years with a standard non-parole period of 7 years. He was tried and convicted by a jury. At the conclusion of his trial, a sentence of 5 years 6 months non-parole period with a 2 years 6 months balance of term for a total overall sentence of 8 years was imposed.
In re-sentencing the applicant I see no basis for disturbing any of the factual findings made by the learned sentencing judge. All of them were open to her Honour. I also accept her Honour's evaluation of the objective seriousness of the offence in the sense which I understand her Honour to have intended, namely slightly above the middle of the range. This evaluation is very much a matter for the first instance judge: Mulato v R [2006] NSWCCA 282 at [37]. If I were to make an independent assessment, I would agree with her Honour.
Taking into account the objective seriousness, the maximum penalty, the standard non-parole period, the applicant's subjective circumstances, comparison with and recognition of points of differences from the three other sentencing decisions cited, parity with the sentence of Akot and her Honour's finding of special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act, I consider an appropriate sentence would be imprisonment for a non-parole period of 3 years 6 months with a balance of term of 1 year 10 months. Under this sentence the non‑parole period represents 65% of the overall term as compared with the default position of 75% for which s 44 provides.
Whilst I do not depart from her Honour's finding that there were special circumstances for the purposes of that section, I do not consider that they would warrant adjustment of the ratio such that the non-parole period should be only 50% of the overall term. That, in my opinion, would be an unwarranted degree of variance from the statutory default ratio taking into account all features of the case.
When re-sentencing upon error having been shown, this Court may form its own view about the appropriate degree of departure from the ratio specified in s 44, albeit that the sentencing judge's finding of fact regarding special circumstances will not lightly be disturbed. There is support for that approach in the judgment of Adams J in Hammond v R [2015] NSWCCA 89. The position is different if the only ground taken on appeal is that there has been an error in the degree of departure from the statutory default ratio. For the purpose of determining whether or not to uphold an appeal this Court would not find error in the degree of departure from the 3:1 ratio if the degree settled upon by the sentencing judge was open. But in the present case, because another ground has been made out, leading to this Court having to exercise the sentencing discretion afresh, this Court may form and apply its own view of the appropriate degree of departure.
The Crown read affidavits regarding charges which have been laid against the applicant arising out of events whilst he has been in custody. He has been convicted of serious assaults upon two Corrective Services officers on 12 June 2015 and he has been charged with wounding a fellow inmate by stabbing with intent to murder him with a shiv, or improvised blade, on 7 June 2016. The applicant urges that the wound with intent to murder should not be taken into account on re-sentencing because the allegation has not been proved.
I consider that the significance of the assaults upon Corrective Services officers and of the alleged wounding with intent to murder the fellow inmate, if the latter were proved, would lie in the bearing these events may have upon assessment of the offender's prospects of rehabilitation and the degree to which he should be regarded as a risk to the safety of the community.
As to the former, I adopt and agree with her Honour's guarded assessment of his prospects of rehabilitation and her finding of a lack of insight into his offending, at least up to the date he was sentenced. The subsequent events in custody are consistent with that assessment but they do not make it any worse or any better.
As to the risk to the community of further violent offending, that was manifest on the materials before her Honour, in particular from his record and the facts of the subject offence. Again that risk is neither heightened nor diminished in a way which would affect sentence by the subsequent events in custody, even assuming that they are or will be proved.
For the purpose of considering parity with the sentence of Akot, the important comparison is between their respective non-parole periods. The sentence which I propose would derive from an undiscounted non-parole period of 4 years 8 months. That is, 10 months less than the non‑parole period imposed upon Akot (which was undiscounted itself because he contested the charge against him at trial). The charge which Akot faced, as earlier mentioned, carried a higher maximum penalty and a higher standard non-parole period. Although the physical conduct of both offenders was closely similar, that of Akot involved the additional element of attempting to rob. In objective terms, this rendered his offence only marginally more serious than the applicant's, appropriately reflected in a differential of 10 months in their respective undiscounted non-parole periods. Akot was exposed to a much higher penalty than the maximum available under s 35(3), pursuant to which the applicant was charged.
I do not consider the applicant could have any legitimate sense of grievance with respect to a non-parole period which is derived from an undiscounted starting point 10 months less than that for Akot. Still less could he have a sense of grievance about the non-parole period of 3 years 6 months which I would propose after allowing 25% discount for his early plea.
During his remand, as mentioned, the applicant has served 1 month imprisonment for an unrelated offence and her Honour allowed the sentence imposed for the offence which is the subject of this appeal to commence on the date he was taken into custody, 28 July 2014. That was a further concession to the applicant which effectively reduced the full-time custody attributable solely to this offence to 3 years and 5 months. In re-sentencing the applicant I would adopt the same commencement date for the sentence as that which her Honour used.
I, therefore, propose the following orders:
1. Grant leave to appeal.
2. Quash the sentence imposed by Culver DCJ on 12 June 2015.
3. In lieu thereof for the offence of reckless wounding in company on 28 July 2014, Marial Makuer Marial is sentenced to imprisonment for a non‑parole period of 3 years 6 months to commence 28 July 2014 and to expire 27 January 2018 and a balance of term of 1 year 10 months to commence 28 January 2018 and to expire 27 November 2019. He would be eligible for release on parole at the expiration of the non‑parole period.
ADAMS J: I also agree with Fagan J's reasons and the order he proposes.
PAYNE JA: Accordingly, the orders of the Court will be as Fagan J proposes.
[3]
Amendments
26 October 2016 - [4] - typographical error corrected.
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Decision last updated: 26 October 2016