Sayin v R [2008] NSWCCA 307 | Case summary

The application for leave to appeal against sentence granted and appeal allowed. 2. Sentence in the District Court quashed. 3. In lieu thereof, the applicant sentenced to imprisonment consisting of a non-parole period of 2 years 3 months commencing on 23 August 2007 and expiring on 22 November 2009 with a balance term of 1 year 6 months commencing on 23 November 2009. . 4. The earliest date of eligibility of release to parole is specified as 22 November 2009. 46 HOWIE J: I agree with the orders proposed by Grove J for the reasons given by him. I simply wish to add that had it not been for the maximum penalty prescribed for the offence of malicious wounding, in no way would I have considered the sentence imposed manifestly excessive. In fact having regard to the nature of the injuries and the manner in which they were inflicted without any provocation or chance for the victim to take evasive or protective action, the penalty imposed was lenient as a reflection of the objective culpability of the applicant and the need to denounce and deter the conduct. 47 The offence, popularly known as "glassing", is becoming so prevalent in licensed premises that there are moves on foot to stem the opportunity for the offence to be committed by earlier closing times and the use of plastic containers. The courts clearly must impose very severe penalties for such offenders, but of course within the limits afforded by the prescribed maximum penalty. In light of the fact that the maximum penalty for an offence under s 35(2), recklessly inflict grievous bodily harm, is now 10 years imprisonment, the increased maximum penalty should result in a marked increase in the penalty for offences of this nature. Had the sentence this Court is now substituting been imposed for the new offence under the Crimes Act with the increased maximum penalty, it would be arguably manifestly inadequate. 48 I have some sympathy for the sentencing Judge because in almost all cases of this type of conduct there would be little difficulty in inferring the intention for the s 33 offence. The Judge's statement as quoted by Grove J is absolutely correct in general terms but not having regard to the offence for which the applicant was being sentenced. The applicant was very fortunate, in my opinion, to be allowed to plead guilty to an offence under s 35. However the Crown having accepted that course, the Judge was bound to sentence the applicant accordingly. **********

GROUND 5 His Honour erred in his assessment of the applicant's previous criminal record and the weight to be given to it in relation to the sentencing process. 29 In written submissions ground 5 was articulated differently and in these terms: GROUND 5 - His Honour was not appropriately provided (and it is accepted that the Applicant's representatives did not provide appropriate assistance in this regard) with a copy of the Court of Criminal Appeal's decision of 2003. 30 Concerning the ground (in both of its expressions) it was contended that his Honour elevated a previous conviction of the applicant into an aggravating factor pursuant to s 21A (2)(d) of the Sentencing legislation, and that that was "not appropriate given the time gap between the offences and the nature of the mental illness". 31 This submission conflated several concepts. The application of the statutory provision has had attention and the existence of prior record may indicate that retribution, deterrence or the protection of society warrant a greater severity of sentence: R v Shankley [2003] NSWCCA 253; R v Wickham [2004] NSWCCA 193. His Honour stated inter alia, in regard to the record, that the applicant was entitled to "no discount that a first offender might receive" thus explaining the manner in which the record was being taken into account. This was entirely appropriate: R v Walker [2005] NSWCCA 109. 32 It is true that there was a considerable time gap between the offences, the earlier conviction following events of 28 August 1992. 33 The applicant had pleaded guilty to an offence on that occasion of assault occasioning actual bodily harm and he was sentenced in the District Court to imprisonment for 18 months to be served by periodic detention. Subject to a requisite adjustment for time served, an appeal to this Court was dismissed on 6 December 1994. Thereafter, as can be gleaned from a judgment of this Court of 1 December 2003, ([2003] NSWCCA 384) the applicant presented himself on 14 December 1994 at the Periodic Detention Centre but he was denied entry because no warrant had been received there. Apparently it arrived subsequently and a number of notices were sent to the applicant at a particular address but these were returned unclaimed. 34 In 1995 the applicant (having not attended for periodic detention) returned to his country of origin, Turkey. A report from Blacktown Hospital recording an admission between 22 April 1996 and 17 May 1996 demonstrated that he had by then returned to Australia. However, a report issued in May 1999 revealed that he was in Turkey again. At some time he once more returned to Australia and on this occasion he was arrested by execution of warrant on 14 August 2002. Thereafter he was kept in full time custody until he was released on bail on 20 February 2003. The second appeal to this Court which I have mentioned was dealt with on 1 December 2003 and the consequence of its order was that the applicant was required (or in a practical sense, deemed) to be released on parole with effect from 20 February 2003. 35 I interpolate that his Honour commented that he considered that the applicant went to Turkey to avoid serving periodic detention but it has not been suggested that he took this into account as an aggravating factor when he was making sentence assessment. From the judgment of this Court in 1994 it can be seen that the facts of the 1992 offence were that the applicant approached a man who was said to have had an affair with his then wife at some time before the applicant had even met her. The victim thought that the applicant had punched him in the stomach but on detecting blood he realized that he had been stabbed and he thereupon drove himself to a hospital. The applicant followed him there and he was arrested whilst sitting in the casualty waiting room. 36 His Honour described this event as demonstrating that the applicant was a man capable of extreme violence without warning. He had reference to the judgment of this Court of 6 December 1994 and made express reference to the content of some of it. 37 Neither the Crown nor the applicant's representatives drew attention to the judgment of 1 December 2003. There was no obligation on the Crown so to do. What has been said to be desirable is for the Crown to provide adequate information about prior convictions in order to enable a court to identify matters which might be similar or distinguishable: R v Mitchell unreported FCA 9 December 1997. This was done. 38 Expressed in either way I would reject ground 5.

Sayin v R

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