R v Youkhana

R v Youkhana [2005] NSWCCA 231 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

R v Youkhana [2004] NSWCCA 87 R v Newman and Simpson (2004) 145 A Crim R 361 R v AEM [2002] NSWCCA 58 R v MM (2003) 135 A Crim R 216 CASES CITED: R v Bedford (1986) 5 NSWLR 711 R v Palu (2002) 134 A Crim R 174 R v Barri [2004] NSWCCA 221 R v Falls [2004] NSWCCA 335

The learned judge failed to recognise the application of the principal of double jeopardy in the circumstances of the case. 13 The applicant relies upon a statement as to the principle of double jeopardy contained in the judgment of this Court in R v AEM [2002] NSWCCA 58 at 145. That statement was made in the course of considering the re-sentencing of a respondent following a successful Crown appeal. In respect of the re-sentencing of an offender after a re-trial following a successful appeal against conviction, this Court has recognised the principle of double jeopardy and sought to address it by promulgating a rule of practice to the effect that, on sentencing after a retrial, an offender should ordinarily not receive a heavier sentence than that which was imposed at the original trial. The application of that rule of practice was recently considered in R v MM (2003) 135 A Crim R 216. 14 It is unnecessary to once again examine the rationale for that rule of practice or its limitations. It is enough to note that the practice lays down no more than a prima facie approach to the re-sentencing of the offender and the second sentencing judge has a discretion to depart from the earlier sentence based upon that judge's assessment of the appropriate sentence to be imposed for the offence. However, if the judge is to depart from that prima facie approach, the judge would be expected to give reasons for having done so: see R v Bedford (1986) 5 NSWLR 711 and MM at [8] to [12]. 15 In the present case the Judge started with a sentence before discount of 3 years. That was in fact a higher sentence than that chosen by Judge Sorby. Of course the sentence imposed by Judge Sorby would have taken into account the totality of the criminality of the offences for which the applicant was then before the court. But the sentence to be imposed by Acting Judge Mahoney also had to take into account the other sentences that the applicant had already served. The sentencing exercise in which Acting Judge Mahoney was engaged differed from that performed by Judge Sorby only in ways that had to be to the applicant's advantage, even before taking into account any subjective matters in the applicant's favour. 16 In my view the whole sentencing exercise miscarried because the Judge simply did not have regard to the rule of practice discussed in MM. In the present case the prima facie approach was not simply that the applicant should not receive a heavier sentence than that originally imposed for the offence for which he had stood trial before Judge Sorby. Rather the prima facie approach should have been that the starting sentence before the discounts were applied for the plea of guilty and the period served in custody had to be manifestly less than that imposed for the offence of maliciously inflict grievous bodily harm. There is no recognition of the rule of practice in the remarks of sentence let alone any analysis of the situation in which the applicant found himself following the quashing of the conviction and the plea to the less serious offence. Nor are there any reasons advanced for fixing a starting point that was longer than the sentence imposed by Judge Sorby for the more serious offence arising from the same facts. 17 Because of my view that the Judge's sentencing discretion completely miscarried it is unnecessary to deal with the remaining grounds of appeal, which are to the effect that the sentence was manifestly excessive. This Court must determine the appropriate sentence and there is in my opinion no reason for determining other than that a sentence of significantly less severity than that imposed by Judge Sorby should be the commencing point for the determination of the appropriate sentence to be imposed upon the applicant. 18 The Judge in determining that a starting point of imprisonment for 3 years was appropriate to reflect the objective circumstances of the offence failed in my view to appreciate that, as the applicant was to be sentenced on the basis that actual bodily harm was occasioned to the police officer, some limitation had to be imposed upon a consideration of the extent of the officer's injury. After all the significant difference between the two charges in the indictment was the nature of the injuries inflicted upon the officer. There was no difference in the nature of the assault that caused those injuries or the applicant's part in that assault. Yet the applicant was sentenced on precisely the same factual basis as if he had pleaded guilty to the more serious charge on the indictment. 19 On a number of occasions this Court has stressed that the facts and material placed before a sentencing judge, particularly after a charge bargain, must accord with the offence for which the applicant is to be sentenced and not some more serious offence: see R v Palu (2002) 134 A Crim R 174; R v Barri [2004] NSWCCA 221 and R v Falls [2004] NSWCCA 335. Otherwise there is the real risk that the sentencing judge will take into account a fact or facts that give rise to a more serious charge than that to which the applicant pleaded guilty. 20 In the present case the injuries relied upon by the Crown to prove actual bodily harm were exactly the same as those relied upon on the charge of infliction of grievous bodily harm. Yet some effect had to be given to the charge bargain in the factual basis upon which the applicant was to be sentenced. It was not enough simply to recognise, as the Judge did, that there was a difference in the applicable maximum penalty. That result flowed from the fact that the Crown was no longer asserting that the injuries suffered by the victim were as serious as the Crown was alleging when the charge was one of the infliction of grievous bodily harm. Of course there was a degree of sophistry in such reasoning but this is not unusual in charge bargains. 21 There does not seem to be any appreciation in the sentencing remarks that the Judge could not sentence the applicant as if the injuries amounted to grievous bodily harm notwithstanding that the evidence revealed that the injuries were capable of amounting to harm of that severity. Rather the sentencing remarks contain the following statements referable to the extent of the injuries:

(1986) 5 NSWLR 711

[2004] NSWCCA 221

[2004] NSWCCA 335