R v Fajka

[2004] NSWCCA 166

Court of Criminal Appeal (NSW)|2004-05-26|Before: Hulme J, Simpson J, Howie J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2004-05-26

Before

Hulme J, Simpson J, Howie J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

The applicant's subjective case 10 A pre-sentence report revealed that the applicant had a history of cannabis and alcohol abuse but in June 2000 had entered into a residential rehabilitation programme at Odyssey House. He told the probation officer, and gave evidence before his Honour, that he had been drug free since completing 16 months of the programme. He admitted to consuming alcohol occasionally. The report contained the following:

[2]

Discussion with the offender's wife confirmed his stated abstinence and reduced alcohol intake. The offender's wife indicated that the offender had made significant progress over the past year, had gained full time employment and had made attempts to lead a drug free law abiding lifestyle. 11 A number of testimonials were tendered from the applicant's employer and other members of the community. 12 The applicant had a criminal record that commenced in 1995 with a PCA offence. There were two offences of obtaining property by false pretences for which he was fined in 1997. The majority of his appearances before the Local Court were for driving matters although in 2000 he was fined $800 for an assault. The most serious offence was one of negligent driving causing death for which he was ordered to perform community service. To describe this history as his Honour did as a "record for offences of dishonesty, violence and driving" was, with respect, to suggest that the applicant's criminal antecedents were more serious than they were.

[25]

I am persuaded that his role in this affair was an active one and that he was quite prepared to identify himself with his brother, who started the brawl for the basest of reasons, and took a more active part in it than did this offender. 27 It seems to me, with respect, that too much was made throughout the sentencing hearing of the conduct of the brother rather than focusing, as his counsel sought to have the judge do, on the conduct of the applicant. The brother was charged with a number of offences, including, somewhat surprisingly, two counts of affray. The applicant did not become liable for all that his brother had done, either because of the nature of the charge of affray or because, in his Honour's words, "he was quite prepared to identify himself with his brother". If that phrase meant that he became involved in order to assist his brother or to take his brother's part in disputes with the hotel guests, then it might be accurate. But if it suggests that by participation in the brawl he adopted all that his brother did and in someway became criminally liable for it, that is not so. 28 Of course the applicant's conduct had to be considered in the context of the fact that his brother had become involved in a brawl with guests and staff at the hotel on what was in effect a family occasion, with children present. But that was the limited basis upon which the brother's conduct aggravated that of the applicant. Section 93(C)(2) does not mean, in my opinion, that the applicant was to be punished for all the conduct of both himself and his brother. Rather the section is concerned with ensuring that the conduct of the two of them is considered in determining whether that conduct "is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety". 29 In a case such as the present the applicant could only be punished for that part of his and his brother's conduct which gave rise to the offence of affray and not that conduct which also resulted in some other offence or offences being committed by the brother, for example an assault occasioning actual bodily harm. In particular where the brother was charged with two offences of affray and the applicant only one offence, the sentencing court had to be careful not to take into account that part of the brother's conduct that gave rise to the second offence with which the applicant was not charged. 30 It was unfortunate that this matter had not been sufficiently addressed at the hearing before his Honour and that the statement of facts contained allegations against the brother that were, in my view, not admissible against the applicant as aggravating his offence. If the sentencing judge was going to sentence the applicant for some matter outside the particulars relied upon in the statement of facts under the heading referring to the applicant, then he should have raised this matter with the defence and given the applicant the opportunity of meeting it. The ground is in substance made out.

[27]

When he was asked by his counsel what he had to say about his involvement in the brawl, the offender uttered the barest pro forma expression of contrition. I do not accept him as being sincere in this regard. 32 With respect to his Honour this seems unduly harsh. I am not sure what it was expected that the applicant might say other than he did. It was not as if he was asked by his counsel whether he was sorry and answered "yes", as is so often the case. True it is that he did not accept that he was acting unlawfully but there was little reason to doubt that he was remorseful for his involvement in the fight in light of the apology he made on the night in question. There was more force in his Honour's finding that he had not faced up to his responsibility for his actions. 33 But the significant matter raised in respect of this ground of appeal is the failure by the sentencing judge to refer to any discount for the plea of guilty, either generally or by reference to a percentage reduction in the sentence during the course of his remarks. When counsel raised the discount for the plea in address, and admitted it was a late plea, his Honour remarked, "What after committal?" Thereafter, while counsel was addressing the judge as to the discount for the plea of guilty, there was no further response on that matter from his Honour. 34 It should be a very rare case where a sentencing judge does not indicate that he or she is giving a discount for a plea of guilty. It is important that the offender believes that the plea of guilty has been taken into account, and a judge should expressly indicate that it has been. With judges experienced in the criminal jurisdiction it might well be the case that this Court would not be prepared to find that so significant a matter could possibly have been overlooked. Very often the sentence itself will reveal whether and to what degree a discount must have been given. In the present case as I am of the view that the sentence is manifestly excessive, it is unnecessary to determine whether this was due to a failure to take into account the plea of guilty or some other error that I have found established. However, I am far from confident that the applicant did receive a discount for the plea even to the extent of, say, 10 per cent.

[31]

Sentence manifestly excessive 39 It should be clear by now that in my view the sentencing discretion was infected with serious error. Further the sentence itself was manifestly excessive both as to the head sentence and the non-parole period. True it is that the applicant had, by his desire to work seven days a week, made two sentencing options unavailable; community service and periodic detention. However, it seems to me a curious result, to say the least, that, because the Probation service declined to find him suitable for alternatives to full-time custody on the basis that it did not wish to interfere with his work commitments, it followed that the applicant had to be given a sentence of full-time custody because alternatives were not available. 40 On the basis that it may be necessary for the applicant to be re-sentenced the Court received affidavits from him and his wife about the effect of imprisonment upon him. It has clearly been the case that the six weeks in custody had a salutary effect upon him. His imprisonment also resulted in the collapse of the business that he and his wife had embarked upon. We were informed on the hearing of the appeal that the applicant has since his release secured a full-time position with a bank. 41 At the conclusion of argument the Court indicated that it was minded to allow the appeal and consider some other course than full-time custody if it determined that a gaol sentence was warranted. With this in mind the matter was stood over to today so that the applicant could be assessed as to whether he is now suitable for either periodic detention or some non-custodial order. The Court has been informed that the applicant is suitable for both periodic detention and community service order. 42 In this case the sentence that I propose should now be imposed cannot be regarded as necessarily a guide to what otherwise would be an appropriate sentence for an affray occurring in circumstances similar to the present matter. This is for three principal reasons. 43 Firstly, the evidence before the sentencing judge which could be properly taken into account indicated a very limited role of the applicant in the affray commenced by his brother. On that material, it is apparent that the fear engendered in the persons present was very largely a result of the conduct of his brother and not the applicant. 44 Secondly, the applicant has served seven weeks in full time custody for an offence that the Crown now accepts on the material before his Honour did not warrant a full time custodial sentence. 45 Thirdly, the applicant is now in my view completely rehabilitated and the characteristics of the person who committed the offence are not the characteristics of the person who is now being sentenced. 46 In these circumstances I propose that leave to appeal be granted and the appeal be allowed. The sentence imposed by Judge Maguire should be quashed and in lieu the applicant ordered to perform 100 hours community service. **********