Funaki v The Queen

[2021] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Funaki v R [2021] NSWCCA 165

Hearing dates:

12 July 2021

Date of orders:

19 July 2021

Decision date:

19 July 2021

Before:

Basten JA at [1];
Walton J at [20];
Adamson J at [21]

Decision:

(1)   Grant the applicant leave to appeal from the sentence imposed on him in the District Court on 20 November 2020.

(2)   Dismiss the appeal.

Catchwords:

CRIME – sentencing – reckless wounding whilst in company – joint criminal enterprise – three victims with stab wounds – attack directed at rival gang – invasion of birthday party

SENTENCING – appeal – manifest excess – assessment of objective seriousness not challenged – applicant did not carry weapon or wound – applicant transported attackers and entered premises where attacks occurred – presence and encouragement during fight

SENTENCING – appeal – manifest excess – evidence of entirely favourable personal circumstances – whether adequately reflected in sentence

Legislation Cited:

Crimes Act 1900 (NSW), s 35

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 54A, 68

Cases Cited:

Mulato v R [2006] NSWCCA 282

Obeid v R [2017] NSWCCA 221

Category:

Principal judgment

Parties:

Edward Funaki (Applicant)
Regina (Respondent)

Representation:

Counsel:
Ms S Kluss (Applicant)
Ms G Wright (Respondent)

Solicitors:
Ross Hill & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/317867

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 November 2020

Before:

Harris DCJ

File Number(s):

2019/317867

Judgment

1. BASTEN JA: On 3 August 2019 a group of young persons, associated with a gang known as “Greater West” invaded a party at a home near Northmead Park in western Sydney and assaulted a number of people. Their primary motivation appears to have been to pick a fight with another young person who was believed to be at the party and was a member of a gang known as “Inner West”, located in Guildford. (Some of the evidence suggested that they expected other gang members or their associates might be at the party.) The applicant, Edward Funaki, was one of the offenders.

2. Three of the young males at the party were attacked and suffered knife wounds which required treatment at Westmead Hospital. The applicant was charged with three offences of reckless wounding whilst in company with other persons, one in respect of each of the three victims. Each offence, pursuant to s 35(3) of the Crimes Act 1900 (NSW), carried a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years. The applicant entered pleas of guilty to each of the offences and was sentenced by Harris DCJ in the District Court to an aggregate term of imprisonment for 3 years 6 months with a non-parole period of 2 years and 4 months. Of the four persons sentenced at that time, the applicant received the lowest sentence. However, only one other person, Cameron Ansah, was sentenced for the same events.

3. On 10 March 2021, the applicant filed an application for leave to appeal. The sole ground was that the sentence imposed was manifestly excessive.

4. The applicant’s case in this Court was ultimately based upon two propositions, both of which must be accepted. The first was that the applicant did not himself inflict injuries on any person, nor did he carry a knife or other weapon. The second was that his personal circumstances were entirely favourable. He had no record of violence, was not dependent on drugs, had no mental health problems and was in employment. However, each of these circumstances was noted by the sentencing judge and taken into account by her, favourably to the applicant.

5. The applicant’s submissions in this Court placed weight upon the fact that a sentencing assessment report had been positive and found him to be a suitable candidate for an intensive correction order or for community service. However, it is by no means clear that such an option was pursued during the sentencing hearing, nor could such an order have been made unless the aggregate sentence was 3 years or less: Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), ss 7(4) and 68(2). As a result of the sentence of 3 years 6 months in fact imposed, the applicant was not eligible for an intensive correction order. It was therefore necessary to challenge the finding of the sentencing judge with respect to the need for full-time custody, which was expressed in the following terms: ^[1]

“I am of the view that the offending conduct of each of the four offenders was of such seriousness that only sentences of full time custody will address their individual criminality and the need for denunciation. Despite the relatively young age and associated immaturity of all the offenders, given the gang related nature of these serious offences of violence (at the birthday party of an 18-year-old …), as I have noted a significant measure of general deterrence must be reflected in the sentences imposed.”

1. Sentencing judgment, p 35.

6. It is necessary to address briefly the circumstances of the offending.

7. The entry of pleas to the charges involving a joint criminal enterprise involved admissions to the elements of each offence. The factual basis for a finding in similar terms was to be found in the agreed facts and the objective evidence. As the judge noted, ^[2] a group of offenders congregated in Northmead Park below a number of CCTV cameras. There was footage which showed the applicant pulling his jumper tight over his head so as to obscure his face. Other members of the group disguised themselves in similar ways; some were seen practising boxing moves and a number could be seen carrying knives.

   2. Sentencing judgment, p 5.

8. When the first two members of the group entered the house, a female guest told them to leave because they were not invited. What followed was described by the sentencing judge in the following terms: ^[3]

“Mr Ansah walked up to the female guest who told him to leave. He pushed her in response and she screamed ‘Don’t touch me.’ The first victim, 17-year-old [JM] had followed the female guest out of the house. He saw Mr Ansah push her and approached the two, telling the offender to ‘chill out.’ The female guest stepped between Ansah and [JM] and told him to leave [JM] alone. [JM] held his hands up to indicate he didn’t want any trouble and Mr Ansah turned to him and said ‘Who the fuck are you[?] Do you want issues?’ before asking [JM] if he was from Guildford.

Ansah said ‘Let’s have a go then’ before swinging a punch at [JM]. [JM] turned and saw three to four other males running towards him. These males began to punch [JM] to the head, back and ribs. [JM] felt a particularly painful punch to his back and fell to the ground. This punch was, in fact, a stabbing injury. [JM] tried to crawl towards the house but felt someone stomp on his head and kick him in the back. The males jumped over his body and ran towards the party. [JM] got to his feet and tried to chase them but was attacked by one of the males who had remained behind. As he fell to his knees this male kicked him to the head. [JM] remained on the ground and passed in and out of consciousness until he was helped onto the back deck by a guest. He continued to pass in and out of consciousness while waiting for the ambulance. He was assisted by other party guests who placed pressure on the wound and attempted to keep him awake.”

3. Sentencing judgment, p 6.

9. The second attack occurred on the person thought to be a member of the rival gang, AS. The judge described the incident in the following terms: ^[4]

“The other males then entered the backyard through the gate. One of these males was holding a 47-centimetre silver machete with a curved blade and another was carrying a 10 to 15 centimetre bowie knife. 18-year-old [AS] was in the backyard of the house when the males entered. … A tall lanky unidentified man with a black face mask approached [AS] in a threatening fashion. He began to hit [AS] who tried to trip him. He and [AS] fell to the floor. [AS] was stomped on and hit to the body by more than one person. …

At one point during the assault [AS] felt a hard hit to his back. This hit was the stabbing injury. … He remained on the ground and began to pass in and out of consciousness. A number of guests assisted him in placing pressure on his wound until the ambulance arrived.”

4. Sentencing judgment, p 7.

10. The third victim, DS, had been in the backyard when the intruders entered and saw AS being attacked. The judge’s account continued: ^[5]

“[DS] turned towards the house and saw two males standing in front of him. One of the males was wearing a grey hoodie and had a black balaclava. This male was holding a 15 centimetre kitchen knife. The male asked [DS], ‘Do you want some’ and began pointing the blade at [DS’s] face. [DS] stepped backwards and attempted to knock the knife out of the male’s hand. As he did so the male thrust the knife towards him cutting his right index finger.”

5. Sentencing judgment, pp 7-8.

11. With respect to objective seriousness, the judge made the following findings concerning the applicant: ^[6]

“Mr Funaki drove a number of the co-offenders to and from the party and by his presence in the backyard contributed his support and encouragement. … He had been present in the park across the road for some time as he and his co-offenders prepared to enter the party. He was captured on CCTV pulling the hood of his jumper up over and tight against his head to obscure his face. The agreed facts demonstrate that Mr Funaki was, at the time, an associate of the Greater West gang. While Mr Funaki’s guilty pleas acknowledge his awareness that some of his co-offenders had knives and he contemplated their use he was not himself armed or otherwise physically involved in what can only be described as the cowardly attacks on three unarmed and ambushed victims. The objective seriousness of the offences committed by Mr Funaki, given his role in the offending, is below the mid-range.”

6. Sentencing judgment, p 16.

12. The expression of a finding in terms reflecting a mid-range of objective seriousness is sometimes used to reflect the criterion for the engagement of s 54A of the Sentencing Procedure Act dealing with standard non-parole periods, namely that the objective seriousness of the offence is “in the middle of the range of seriousness.” As noted above, there was a standard non-parole period of 4 years with respect to the offences to which the applicant pleaded, although his plea rendered the standard non-parole period of limited relevance.

13. The objective seriousness of the applicant’s offending was to be assessed by reference to the actual attacks on the three victims and the limited role played by the applicant. It is well established that this Court will not readily interfere in the characterisation of the level of objective seriousness determined by the sentencing judge: see Mulato v R. ^[7] In any event, there is no basis to revisit the assessment in the present case, nor did counsel suggest otherwise. However, once the seriousness of the offending is accepted, as it must be, it is difficult to find the sentence to be manifestly excessive.

    7. [2006] NSWCCA 282 at [37] (Spigelman CJ); [46] (Simpson J).

14. In dealing with the applicant’s personal circumstances, the details of which were not disputed on the appeal, the judge noted an assessment that he had “adjusted adequately to adverse family circumstances in childhood signifying robust mental health.” The judge continued: ^[8]

“The offences reflect the offender’s immaturity including poor decision making skills, difficulty asserting himself, his limited verbal dexterity and a tendency to rely on others for leadership.”

8. Sentencing judgment, p 26.

15. Further, the judge accepted that the applicant was “genuinely remorseful.” ^[9] She was also satisfied that “his prospects of rehabilitation are very good and his risk of reoffending low.” ^[10]

    9. Sentencing judgment, p 31.

    10. Sentencing judgment, p 33.

16. In stating the sentences which would have been imposed for the individual offences, the judge indicated periods of 3 years and 2 months imprisonment for each offence. The aggregate sentence of 3 years and 6 months therefore reflected a high proportion of concurrency, each of the second and third sentences being accumulated, in effect, on 2 months of the previous sentence. Although the offending may be seen as one course of conduct, the involvement of three victims suggests that the high level of concurrency involved a degree of leniency.

17. Mr Ansah was convicted of the same three offences, but had been directly involved in the assault on JM and the striking and kicking of AS whilst he was on the ground. In his case the putative individual sentences were 4 years imprisonment and the aggregate sentence a term of 4 years and 4 months.

18. Although counsel for the applicant suggested that a higher level of disparity was warranted resulting in a lower sentence for the applicant, no relevant error was demonstrated on the part of the sentencing judge. As explained by this Court in Obeid v R ^[11] appellant intervention on the ground of manifest excess is only warranted “where the sentence is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.” Neither of these criteria is satisfied in the present case.

    11. [2017] NSWCCA 221 at [443] (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing).

19. While the circumstances of the offending are sufficient to warrant a grant of leave to appeal, the appeal must be dismissed. The Court should make the following orders:

1. Grant the applicant leave to appeal from the sentence imposed on him in the District Court on 20 November 2020.

2. Dismiss the appeal.

20. WALTON J: I agree with Basten JA.

21. ADAMSON J: I agree with Basten JA.

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Endnotes

Decision last updated: 19 July 2021