R v Dong, Matur; R v Marial; R v Dong, Ayuok; R v Mathiang

[2016] NSWCCA 195

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dong, Matur; R v Marial; R v Dong, Ayuok; R v Mathiang [2016] NSWCCA 195
Hearing dates:	10 August 2016
Date of orders:	10 August 2016
Decision date:	02 September 2016
Before:	Payne JA at [1]; R A Hulme J at [96]; Adamson J at [97].
Decision:	Appeal dismissed in each case
Catchwords:	CRIMINAL ‑ Crown appeal against sentence –whether sentence manifestly inadequate – grievous bodily harm with intent ‑ where sentencing judge imposed a suspended sentence for all four offenders ‑ whether sentencing judge erred in assessing the offences at the low end of the range of objective seriousness – exercise of residual discretion ‑ appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912 (NSW) s 5D Crimes Act 1900 (NSW) s 33 Crimes (Sentencing Procedure) Act 1999 (NSW) s 12
Cases Cited:	Amado v R [2011] NSWCCA 197 BP v R [2010] NSWCCA 159; 201 A Crim R 379 CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308 Da-Pra v R; R v Da-Pra [2014] NSWCCA 211 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 House v The King (1936) 55 CLR 499 Mulato v Regina [2006] NSWCCA 282 R v Latouff (Court of Criminal Appeal (NSW), Mahoney ACJ, 12 December 1996, unrep) RCW v R (No 2) [2014] NSWCCA 190; 244 A Crim R 541 R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 Regina v Z [2006] NSWCCA 342; 167 A Crim R 436 Zamagias v Regina [2002] NSWCCA 17
Category:	Principal judgment
Parties:	Crown (appellant) Matur Dong (respondent) Manham Marial (respondent) Ayuok Dong (respondent) Bol Mathiang (respondent)
Representation:	Counsel: N Adams (Crown) P Coady (Respondent – Dong, Matur) A Cook (Respondent – Dong, Ayuok) A Hughes (Respondent – Marial) L Fernandez (Respondent – Mathiang)   Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission of NSW (Respondent – Dong, Matur) Virginia Taylor Lawyer (Respondent – Dong, Ayuok) Mandy Hull & Associates (Respondent – Marial) Legal Aid Commission of NSW (Respondent – Mathiang)
File Number(s):	2013/1951572013/1951602013/1951782013/195181
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 March 2016 Before: Solomon ADCJ File Number(s): 2013/195157 2013/195160 2013/195178 2013/195181

Judgment

1. PAYNE JA: On 11 March 2016, each of the four respondents was sentenced in the District Court in relation to one count of causing grievous bodily harm with intent to do so, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). All of the respondents pleaded guilty to the offence.

2. Offences under s 33(1)(b) of the Crimes Act attract a maximum penalty of imprisonment for twenty-five years and the standard non-parole period of seven years.

3. In each case the sentencing judge sentenced the respondent to a term of imprisonment of two years. In each case his Honour suspended execution of the sentence and directed that the respondent be released from custody on the condition that he enter into a good behaviour bond for the term of the sentence with conditions including supervision.

4. The Crown appealed, as of right under s 5D of the Criminal Appeal Act 1912 (NSW), against the sentence imposed for each respondent.

5. On 10 August 2016, at the conclusion of the hearing this Court made orders dismissing the appeal in each case. The following constitutes my reasons for participating in those orders.

Brief facts

6. All of the participants in the events relevant to this case are members of the Sudanese immigrant community. Mr Mayek, the victim, was a Sudanese immigrant to Australia and an elder in that community.

7. A week before 25 June 2013, Mr Mayek went to his estranged wife’s house to wait for her after hearing that she had gone out for the evening. He waited until Mrs Mayek arrived home at 2 am, in the company of Mrs Veronica Ring (the mother of Bol Mathiang) and a number of other women.

8. Mrs Ring said that Mr Mayek became aggressive toward the women during an argument (Mr Mayek denied this). The police were called and Mrs Ring went with them to the police station. After that she went to the hospital. Her son, Bol Mathiang, picked her up from the hospital. Mrs Ring told her son that Mr Mayek had assaulted her.

9. On 25 June 2013, a second argument took place between Mr Mayek, Mrs Ring and Mrs Trazia Akec, the mother of Matur and Ayuok Dong. Mrs Ring and Mrs Akec said that Mr Mayek was violent towards them during the argument (Mr Mayek denied this). Mr Mayek left the premises and later called the police, although by this time Mrs Ring and Mrs Akec had left the premises.

10. On the same day, Mrs Ring and Mrs Akec attended the police station and told the police they had been assaulted by Mr Mayek. Mrs Akec rang her son, Matur Dong, who was at university with Ayuok Dong, Bol Mathiang and Manhom Marial. She asked him to pick up his siblings and told him that Mr Mayek had assaulted her.

11. Matur Dong, Ayuok Dong, Bol Mathiang and Manhom Marial drove to a house where they believed Mr Mayek would be present, however Mr Mayek had left before they arrived. Later that day the young men went to a house belonging to a woman who was a friend of Mr Mayek’s. Mr Mayek was present. A number of witnesses described the events as being that the four young men walked toward Mr Mayek, whereupon an argument began.

12. Mr Mayek armed himself with a stick and began to assault the young men. All four young men then armed themselves with items from around the house and assaulted Mr Mayek. Mr Mayek was overpowered and fell to the ground, where the men continued to hit him.

13. The four men got in their car and drove away. A short time later, they returned and again hit Mr Mayek until he was motionless on the ground.

The findings of the sentencing judge

Findings of fact

14. The victim of these assaults, Mr Mayek, was an elder in the Sudanese migrant community. The mother of Ayouk and Matur Dong alleged that Mr Mayek had assaulted her. A week earlier the mother of Bol Mathiang had alleged that Mr Mayek had assaulted her.

15. The sentencing judge found that the four young men travelled to speak to the victim to confront him in what he described as a pacific manner.

16. The sentencing judge was satisfied that when the young men approached the victim to speak with him about the alleged assaults committed on their mothers, the victim was belligerent and attacked the four men, using a weapon. His Honour was also satisfied that the four offenders did not take any weapons to the scene and made a positive finding that it was their intention in going to the house only to speak with the victim.

17. The sentencing judge was satisfied that the four offenders did not plan to commit the offence and that the offence only occurred because the matter got out of hand after the victim attacked the offenders. The sentencing judge was also satisfied that the offenders found weapons, being loose palings, on the ground and they attacked the victim with those palings.

18. The sentencing judge was satisfied that the victim had suffered serious injuries resulting from the attack, including depressed skull fractures and a fracture to the jawbone and right finger. His Honour found the victim had surgical intervention for these injuries and spent 13 days in hospital.

19. The sentencing judge took into account the victim impact statement which was not subject to cross-examination.

Objective seriousness

20. The sentencing judge found that the offence is a serious offence, saying:

The offence is a most serious offence. The seriousness of the offence is reflected in the maximum penalty of imprisonment for twenty-five years and the standard non-parole period of seven years.

On considering the evidence that pertained to the attack, I am satisfied that the offence was aggravated by virtue of the fact that the weapons were used and that the offenders were in each other’s company.

21. The circumstances of the offending led the sentencing judge to conclude that for each offender, the offence was at the low range of objective seriousness for the offence, explaining:

I come to this view mainly because there was no premeditation, there were no weapons taken to the scene by the offenders, that the first blow was struck by the victim and that the offenders only armed themselves with the fence palings and matters, to use a common expression, “just got out of hand”.

22. The sentencing judge was also satisfied that it was established law that the offenders could not take matters into their own hands, and that this was what had occurred.

23. He was, however, satisfied that the primary purpose of their attending upon the victim in the first instance was the fact the offenders wished to speak to him about the assaults which they believed had been perpetrated on two of their mothers.

“Second phase” of the attack

24. It was accepted in the agreed facts that the four men, after having attacked the victim, left in a car and a short time later returned to further attack Mr Mayek. The evidence was otherwise silent as to why the young men returned.

25. The sentencing judge, however, in exchanges with Senior Counsel for the Crown twice referred to a desire to retrieve a mobile phone as motivating the men to return. First, in summing up the facts of the case, his Honour said:

HIS HONOUR: …I am not satisfied that the victim was unconscious when they left. I am satisfied the offenders returned, not for the purpose of additional assaults, because they left a phone, and assaulted the –

CROWN: I’m sorry, I didn’t quite hear what your Honour said then.

HIS HONOUR: They returned to the scene because they left a phone, not for the purpose of continuing the assault, and there were additional assaults occurred.

Now I’m just going to go through each of the accused and tell you what I’ve – each of the offenders, and tell you what my preliminary view is in relation to them.

26. His Honour was not corrected by the Crown about the absence of evidence on this matter.

27. Second, the following exchange occurred between the sentencing judge and Senior Counsel then appearing for the Crown:

CROWN: And upon a much older man, and if your Honour accepts the facts, they came back and had a second go at him.

HIS HONOUR: But not by virtue of the fact that they wanted to have a second go; it was a fortuitous second go. They came back because they’d left a phone.

Look, I don’t know how cultural it is, but the last case I had involving Sudanese people involved some Sudanese blueberry pickers up the coast of New South Wales, and again something similar occurred, and weapons were just picked up on the street, and –

CROWN: That’s the trouble, your Honour; weapons were used.

HIS HONOUR: Weapons, yes, but it’s not as if there was premeditation…

28. Again, his Honour was not corrected by the Crown about the absence of evidence on this matter.

29. The explanation for his Honour’s statements appears to be an earlier version of the statement of agreed facts which was produced for the purpose of obtaining pre-sentencing reports. This statement was not tendered in the sentence proceedings but was on the Court file prior to the sentencing proceedings. With regards to the “second phase” of the attack, that statement says:

The four males returned as Mr Mayek was attempting to get to his feet. The four males state that they returned because they had left behind a mobile phone. Once at the premises, the four males then continued to assault Mr Mayek with their weapons until he was motionless on the ground once more. The four males then left.

(italics added)

30. The sentence identified in italics above was omitted from the statement of agreed facts that was tendered in evidence in the sentence hearing.

Subjective circumstances

31. The sentencing judge described the subjective circumstances relevant to each of the offenders as “very powerful in this case”, and addressed the individual circumstances for each:

32. Mr Matur Dong - the sentencing judge found that:

The offender was twenty-one at the time of the commission of the offence. The offender has no criminal record.

The offender pleaded guilty and is entitled to a discount of 10 per cent, having regard to the utilitarian benefit of the plea.

As I indicated earlier, I am satisfied the offender did not plan the assault and that he took no weapon with him.

I am satisfied that the offender is the eldest son in a family and has familial responsibilities. The offender is studying social science and the offender provides community work within his football club.

The offender was interviewed by Leah Morrow of Corrective Services and a presentence report indicates that the offender is regarded as a valuable community member in the Sudanese community and that the offender was unlikely to benefit from a period of supervision due to his assessed low risk of re-offending, however, I am of the view that he should be subject to supervision even though he is unlikely to re-offend.

The offender’s plea of guilty indicates a degree of remorse. The offender is remorseful and I have evidence as to his remorse.

33. Mr Marial - the sentencing judge found that:

The offender at the time of the offence was nineteen years of age. The offender was born in Southern Sudan and during the civil war his father was killed. The offender is one of eight children and during his childhood observed great horrors during the course of the civil war.

The offender came to Australia in 2003. The offender has no criminal record. The offender has undertaken community work in the community, and this is commendable.

The offender was assessed by the Department of Justice and Regulation of Victoria and was assessed as having a low risk of general re-offending. The offender is presently studying civil engineering at university. He has successfully completed two years of his course and has a further two years to complete. The offender has had employment and works for JB Hi Fi and also works part-time as a disc jockey.

The offender has indicated strong remorse. The offender pleaded guilty and is entitled to a discount of 10 per cent.

34. Mr Ayuok Dong - the sentencing judge had the benefit of reading his psychological report and found:

Mr Dong, at the time of the commission of the offence was nineteen years of age. Mr Dong was born in the Sudan and suffered horrifically as a consequence of the civil war. He and his family left Sudan as refugees and came to Australia.

Mr Dong has progressed extremely well in Australia. He attended upon a selective high school and attended upon a Victorian university, undertaking science, and having regard to a number of family matters and this matter, he has not completed his course. He is presently unemployed.

The offender indicates his strong remorse in relation to the events. I am satisfied that the offender comes from a close family. I am satisfied that, having regard to what I have read and having regard to what I observed of Mr Dong, that he is unlikely to re-offend. The offender has indicated strong remorse in relation to his activities. The offender has no criminal record.

The offender pleaded guilty to the offence and he is entitled to a discount for the utilitarian benefit of his plea of some 10 per cent.

35. Mr Bol Mathiang - the sentencing judge found that:

Mr Bol Mathiang was twenty years at the time of the commission of the offence. The offender has no criminal record. The offender is well thought of in the community.

The offender pleaded guilty and is entitled to a discount of 10 per cent.

I have had the benefit of reading the Department of Justice and Regulation report prepared by Belinda Pastuovic and Rhys Wooley. The report sets out the fact that the offender has a general low risk of re-offending.

The offender also comes from Sudan. The offender’s village in Sudan during the civil war was bombed. The offender gave evidence that he saw people killed during the civil war. The offender went as a refugee to Uganda at the age of eight and in 2006 came to Australia.

The offender is undertaking an Arts Law degree in Victoria. He has completed two years of that degree. The offender is also in employment and earns substantial moneys.

The offender’s plea of guilty indicates remorse but also he is remorseful for his actions and does show sympathy for the victim.

Grounds of appeal

36. The Crown relied upon four grounds of appeal for each respondent:

Ground 1: The learned sentencing Judge erred in omitting to take into account relevant facts.

Ground 2: The learned sentencing Judge erred in finding that the offending was “at the low end of the range of objective seriousness”.

Ground 3: The learned sentencing Judge erred by deciding to suspend the sentence of imprisonment without having reached a determination of its length.

Ground 4: The sentence pronounced was manifestly inadequate.

37. In both written and oral submissions the Crown submitted that there was nothing of any practical significance to distinguish between the four offenders, both as to the objective seriousness of the offending and the particular subjective circumstances which were available.

Principles relating to Crown appeals

38. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 the High Court stated the primary purpose of a Crown appeal was to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. This Court may only interfere where error is established: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [61] – [63].

39. Section 5D of the Criminal Appeal Act 1912 (NSW) is the provision engaged in a Crown appeal. Under s 5D(1) there is a residual discretion to decline to interfere with the sentence even if it is erroneously lenient. The onus is on the Crown to negate any reason why the residual discretion of the Court not to intervene should be exercised. Even if appellable error is established it remains for the appellant to persuade the Court to vary the sentence imposed by the court of trial: CMB v Attorney General for New South Wales [2015] HCA 9; 317 ALR 308 at [6] and [56] – [66].

Grounds one and two

40. The parties dealt with grounds one and two together on the appeal and it is convenient to continue to do so.

41. The Crown submitted that the sentencing judge did not take into account the fact that the respondents continued to attack the victim after he had fallen to the ground and no longer posed a threat to them. The Crown also submitted that the sentencing judge did not deal with the “second phase” of the attack at all.

42. The Crown acknowledged that a finding as to the objective seriousness or gravity of an offence is “classically” within the discretion of the sentencing court: Mulato v Regina [2006] NSWCCA 282 per Spigelman CJ at [37]. The Crown submitted, however, that in light of the factual errors about the second phase of the offending made by the sentencing judge, it was not open to the sentencing judge to find that the objective seriousness of the offending was “at the low end of objective seriousness”.

43. The Crown submitted that there were various factors which made this offending “unquestionably at or above mid-range”, including that the four offenders continued to attack the victim after he was sitting on the ground, that they directed blows to his head and the fact that they returned to the victim and recommenced attacking him.

44. The Crown submitted that the sentencing judge did not deal with this “second phase” of the attack, which significantly increased the seriousness of the respondents’ offending. The Crown submitted that the only reason the four offenders returned to the victim was to continue beating him and that the sentencing judge’s reference to the men returning to collect a dropped mobile phone was not supported by evidence.

45. Counsel for each respondent submitted, in similar terms, that the transcript of the proceedings on sentence showed that the sentencing judge was aware of the “second phase” of the attack. This is particularly evident when, during the proceedings, the sentencing judge grappled with the unresolved fact of whether or not the victim lost consciousness after the second attack. His Honour’s failure to refer to the “second phase” during his remarks does not constitute an error requiring intervention.

40. Submissions were made on behalf of each respondent to the effect that the sentencing judge’s remarks show that he took into account all relevant factors that he was required to when determining the objective seriousness of the offending.

41. Counsel for the respondents emphasised that it was open to his Honour to find that the offence was at the low end of the scale given that it did not involve any element of premeditation, pre-arming or pre-planning.

Consideration of grounds one and two

48. The sentencing judge did not refer to the “second phase” of the attack in his remarks on sentence. This may be because the transcript of the proceedings on sentence reveals that the sentencing judge was distracted by the earlier “agreed” statement of facts which contained a description of the motivation of the young men to return to retrieve a mobile telephone.

49. While normally this Court does not have regard to exchanges between the sentencing judge and counsel during the course of submissions on sentencing, there are certain circumstances where it is warranted. The applicable principles are helpfully set out in RCW v R (No 2) [2014] NSWCCA 190; 244 A Crim R 541 by R A Hulme J at [37]:

…there are circumstances in which there may be some utility in having regard to statements from the bench during the course of submissions; for example, when they can assist in elucidating abbreviated statements appearing in remarks on sentence: Peiris v R [2014] NSWCCA 58 at [67] (Leeming JA). In my view there is also some utility where during the course of submissions a judge exposes his or her reasoning and announces a concluded view which is ultimately maintained without any qualification of the reasoning in an immediately ensuing ex tempore sentencing judgment.

50. Consideration of those remarks in this case shows that in exchanges with the Crown prior to delivering his remarks on sentence the sentencing judge referred to the “second phase” of the attack as a “fortuitous second go”.

51. His Honour twice remarked that the four men had returned to the scene to retrieve a dropped mobile phone, rather than with the intention of attacking the victim a second time.

52. This explanation, however, was not supported by the agreed facts on the indictment or any other evidence admitted on the sentencing proceedings. Senior Counsel then appearing for the Crown did not correct his Honour’s understanding of the facts. The Crown on appeal conceded that “on one view” this failure may be taken as perpetuating the error made by his Honour and that the matter should have been more vigorously pressed by the Crown below.

53. Having regard to the exchanges with the Crown immediately prior to making his remarks on sentence, his Honour was plainly aware of the second phase of the attack and took it into account.

54. In my view, the sentencing judge did not err in omitting to take into account relevant facts, the second phase of the attack. I would dismiss ground one of the Crown’s notice of appeal.

55. Ground two of the Crown’s notice of appeal alleges that the sentencing judge erred in finding that the offending was “at the low end of the range of objective seriousness”.

56. Where an offence falls on the scale of objective seriousness is an evaluative judgment within the discretionary realm of the sentencing judge. Such discretionary findings are reviewable only in cases of House v The King (1936) 55 CLR 499 error.

57. Even assuming that the explanation for the motivation of the young men to return to the scene of the assault was to retrieve a mobile phone, this did not provide a sufficient basis to find that the offending was at the low end of the range of objective seriousness.

58. While his Honour thought the mobile phone explanation was important, in my view that explanation (even if there had been any evidence to support it) did not detract in any meaningful way from the objective seriousness of the conduct described in the second phase of the attack. That second phase was itself a very serious assault upon the victim, who by that time was incapable of defending himself.

59. In my view, his Honour erred in finding that the offence was at the low end of the range of objective seriousness. In making that that finding, I accept, as the sentencing judge found, that:

1. this was a case not involving premeditation;

2. no weapons were taken to the scene by the offenders;

3. the first blow was struck by the victim; and

4. the offenders only armed themselves with the fence palings after being attacked.

60. Nevertheless, the “second phase” of the attack, which occurred after the men had driven away and then returned to the scene, was not provoked. The victim by that time was no longer in a position to defend himself. The injuries inflicted upon the victim were significant.

61. Even giving a benevolent interpretation to the exchanges between the bench and counsel about the second phase of the offending which had occurred immediately prior to the ex tempore sentencing remarks, the description by the sentencing judge of the offending conduct in those remarks as at the low end of the scale was an error.

62. The “second phase” of the offending clearly made the present case one which was objectively more serious than the sentencing judge found. In light of this, it was not open to the sentencing judge to conclude that the objective seriousness of the offending was at the low end of the scale.

63. I would uphold ground two of the Crown’s notice of appeal.

Ground three

64. The Crown submitted that the sentencing judge’s decision to impose uniform two year sentences for each offender indicated that the sentences were “tailored” in order to facilitate the giving of a suspended sentence. The Crown contended that, taking into account the 10 per cent discount each offender was entitled to, a sentence of two years suggests a starting point of two years, two months and 20 days, which is highly improbable given the standard non-parole period is seven years.

65. The Crown also submitted that there was next to no utilitarian value in the respondents’ pleas of guilty given that they were not entered at the earliest opportunity, and only entered after an aborted trial.

Consideration of ground three

66. The Crown invited this Court to infer that the discounted starting point for the sentence is strongly suggestive of erroneous reasoning, contrary to Zamagias v Regina [2002] NSWCCA 17, to suspend the sentence without first having reached a determination of the length of imprisonment. In my view, such an inference should not be drawn.

67. During the remarks on sentence the sentencing judge followed the “staged procedure” set out in Zamagias. The sentencing judge first determined that a custodial sentence was required and then determined that a custodial sentence of two years was appropriate. Only then did the sentencing judge suspend the sentences pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

68. The Crown’s complaint about the sentencing judge’s “improbable starting point” of two years, two months and 20 days assumes an application of the discount with mathematical precision which is unwarranted.

69. In Regina v Z [2006] NSWCCA 342; 167 A Crim R 436 at [88] Beazley JA (as her Honour then was) said “the focus should not be so much upon the precise numerical value of the discount but rather upon the question whether, after all relevant matters have been taken into account, the sentence imposed is appropriate”. I would not conclude that the sentences were “tailored” by the sentencing judge in order to facilitate the giving of a suspended sentence.

70. The Crown’s submission that the utilitarian value of the pleas had “largely evaporated” should also be rejected. The pleas saved the time and expense of a second trial and warranted the relatively modest discount the sentencing judge gave.

71. I would reject ground three of the Crown’s notice of appeal.

Ground four

72. The Crown submitted that, given the objective seriousness of the offences and the sentencing judge’s erroneous decision to suspend the sentences, this Court should be satisfied that the sentences imposed are unreasonable or plainly unjust.

Consideration of ground four

73. In my view, the sentence imposed was erroneously lenient. The sustained violence perpetrated against the victim, whatever its motivation, and whatever the provocation, was too serious to be described as at the low end of offending for this type of offence. As I have found when dealing with ground two, the “second phase” of the attack, which occurred after the men had driven away and then returned to the scene, was not provoked. The victim by that time was no longer in a position to defend himself. The injuries inflicted upon the victim were significant.

74. When considered correctly, and having regard to the significant injuries suffered by the victim, a sentence of imprisonment of two years was unreasonable. A longer sentence should have been imposed.

75. That being so, the option of imposing a fully suspended sentence was not open to the sentencing judge: s12(1) Crimes (Sentencing Procedure) Act 1999. In expressing this conclusion I do not wish to be understood as saying that the imposition of a suspended sentence, of itself, indicates that a sentence is manifestly inadequate. In this regard, I agree with the observations of Basten JA in Amado v R [2011] NSWCCA 197 at [8] ‑ [10].

76. The Crown has succeeded in crossing the first hurdle in a Crown appeal described in R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at 458, being a description of the test imposed by s 5D approved by the High Court in CMB.

Exercise of the Residual Discretion

Principles

77. In Crown appeals on sentence, even where a sentence is erroneously lenient, the Court retains a residual discretion to decline to interfere with the sentence: Green v The Queen at [465] – [466]. The onus rests on the Crown to persuade the Court to intervene: CMB at [36] and [66].

78. In Da-Pra v R; R v Da-Pra [2014] NSWCCA 211, Emmett JA summarised the effect of relevant High Court authority and said at [164]:

The Court has a discretion to decline to interfere with a sentence, even though the sentence is erroneously lenient. Various circumstances may combine to produce injustice if an appeal were to be allowed. Such circumstances included delay in hearing and determination of the appeal, the imminent or past occurrence of the offender’s release on parole and the effect of re-sentencing on progress towards the offender’s rehabilitation. Such circumstances are relevant to the exercise of the residual discretion that the Court has. The guidance afforded to later sentencing judges by allowing an appeal should not come at too high a cost in terms of justice to the individual (see Green v The Queen [2011] HCA 49; 244 CLR 462 at [1] and [43]).

79. Finally, in CMB the High Court discussed the role of the Crown submissions to the sentencing judge in relation to the exercise of the residual discretion at [64] per Kiefel, Bell and Keane JJ:

64 The determination of the appropriate sentence is one that rests solely with the court. The public interest in the sentencing of offenders does not permit the parties to bind the court by their agreement. Nonetheless, the prosecutor is under a duty to assist the court to avoid appealable error. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting. The failure to do so is a material consideration in the exercise by the Court of Criminal Appeal of the residual discretion. …

(citations omitted)

Crown submissions

80. The Crown in opening this appeal very properly submitted concerning the residual discretion that “we concede there are matters to be agitated in that area.” The Crown submitted that, nonetheless, having found error, this Court should not exercise the residual discretion and, instead, intervene and increase the sentences imposed by the sentencing judge.

Consideration of residual discretion

81. The effect of appellate intervention in a Crown appeal upon the rehabilitation of an offender is an important matter in considering the exercise of the residual discretion: R v Bugmy (No 2) [2014] NSWCCA 322 at [104]. On this appeal the Crown submitted that “it must be conceded that [the offenders’] rehabilitation is well advanced”.

82. Each respondent put evidence before this Court going to the question of rehabilitation and what they have achieved since the commission of the offence. This evidence tells heavily in favour of the exercise of the residual discretion to decline to interfere with the sentence.

83. Mr Ayouk Dong - in an affidavit affirmed on 3 August 2016, Mr Dong gave evidence that he lives with his mother and siblings. He assists his family and has significant responsibility for his siblings, including driving his siblings to and from school and to the library. The respondent is engaged in community work tutoring Sudanese students. The respondent postponed his university studies due to the sentence hearing and this appeal, but plans to return to university in the first semester of 2017. Mr Dong has not been in trouble with authorities since the offence and was compliant with bail conditions for a lengthy period. Mr Dong was 19 years old at the time of the offence.

84. Mr Marial - Mr Marial was 19 years old at the time of the offending. He was born in South Sudan and during his childhood observed great horrors during the course of the civil war. He had no prior criminal history. He has undertaken important community work and had been assessed as having a low risk of general reoffending. He is studying civil engineering at university having completed two years of his course. He indicated strong remorse. Mr Marial has not had any further issues with authorities. In his affidavit sworn on 10 August 2016, Mr Marial gave evidence that since his sentence he has continued to study, including completing three subjects in semester one of 2016. He also performs volunteer work for charities in support of the Sudanese community.

85. Mr Matur Dong - Mr Dong was 21 years old at the time of the offence. In his affidavit sworn on 9 August 2016, he stated that he has not been in trouble with the authorities since sentencing. Mr Dong is currently attending university. He is an active member of his football club and sits on the board as the player and coach representative. Mr Dong states that he is determined to continue with his studies and football, and stay out of trouble. The imposition of a full time custodial sentence would interfere with Mr Dong’s rehabilitation and in particular his strong educational prospects and ties to the community.

86. Mr Mathiang - Mr Mathiang was 20 years old at the time of the offence. He was born in South Sudan and experienced the horrors associated with the civil war in that country. He and his family became refugees. He has no prior criminal history and expressed sympathy for the victim. In his affidavit, affirmed on 1 August 2016, Mr Mathiang explained that he has part-time employment and is enrolled in a Bachelor of Arts/Law degree in Victoria. He described his experiences of civil war and as a refugee. He expressed remorse over the incident and the impact it had on the victim and on Mr Mathiang’s family.

87. Further matters tending in favour of the exercise of the residual discretion to decline to interfere with the sentence in this case are:

1. the content of the submission made by the Crown to the primary judge at the sentencing hearing about the sentence the judge had indicated he was proposing to impose; and

2. the failure of the Crown to correct his Honour’s misapprehension about the evidence concerning the motivation of the four men to return to the victim and engage in the second phase of the attack.

88. The submission made by the Crown to the primary judge at the sentencing hearing about the sentence the judge had indicated he was proposing to impose was:

CROWN: It would be the Crown’s submission that a suspended sentence is an extremely generous outcome for these young men. Whether it’s appellable in this case, your Honour, it’s difficult to say.

HIS HONOUR: Yes. That’s not for you to decide, but –

CROWN: No that’s all I’d wish to say.

HIS HONOUR: I haven’t heard it. Yes, all right. Well, I’m going to do that. I’m going to find that a sentence of two years is appropriate in respect of each case, and I’m going to suspend the sentences. (italics added)

89. The remarks of Senior Counsel for the Crown in this context need to be measured against the test identified by the High Court in CMB, at [64].Whilst Senior Counsel then appearing for the Crown was not in a position to bind the Director concerning an appeal, to submit that “whether it’s appellable in this case, your Honour, it’s difficult to say” was not to submit that “such a penalty would be manifestly inadequate”. The failure to make that submission is a material consideration in this Court’s decision whether or not to exercise the residual discretion.

90. Finally, the error made by the sentencing judge in failing to identify the greater objective seriousness of this offending by reason of the second phase of the attack, seems to have been occasioned, in part, by the fact that the sentencing judge was distracted by the earlier agreed statement of facts and the description of the mobile phone as a motivating factor in the return to the scene of the offence. While no doubt explicable in the context of a busy list and the change in representatives for the Crown between appearances in court, the failure of the Crown to correct his Honour’s misapprehension about the evidence played a part in the error I have identified in relation to the identification of the objective seriousness of the offending. Whilst clearly not determinative of itself, this is another relevant consideration in the exercise by this Court of the residual discretion.

Conclusion concerning exercise of residual discretion

91. In relation to each of the offenders, their progress toward rehabilitation in the three years since the offending conduct is a powerful factor in favour of the exercise of the residual discretion to decline to interfere with the sentence imposed.

92. Whilst there was no delay in the appeal being brought by the Crown and the increase to the sentence which was warranted would not amount to mere “tinkering”, the effect upon the offenders’ progress towards rehabilitation, together with the other matters to which I have referred, is such that I would exercise the residual discretion to decline to interfere with the sentence in these cases.

93. The nature of this appeal, and its focus on the errors made by the sentencing judge in addressing the objective seriousness of the offending, suggests that any re-sentence in this case would have limited utility in providing broader guidance to sentencing judges in the future. In any event, this is a case where the guidance afforded to later sentencing judges by allowing an appeal should not come at too high a cost in terms of justice to the individual.

94. Whilst error has been shown and the sentence imposed was erroneously lenient, this was a case where I would exercise the residual discretion to decline to interfere with the sentence under s 5D of the Criminal Appeal Act.

95. For these reasons I joined in the making of the following order on 10 August 2016:

1. Appeal dismissed in each case.

96. R A HULME J: I agree with Payne JA.

97. ADAMSON J: I agree with Payne JA.

**********

Decision last updated: 02 September 2016