R v Jeremiah

[2016] NSWCCA 241

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Jeremiah [2016] NSWCCA 241

Hearing dates:

21 October 2016

Date of orders:

02 November 2016

Decision date:

02 November 2016

Before:

Meagher JA, Davies and Fagan JJ

Decision:

1. The appeal is allowed.

 

2. The sentence imposed upon Moromi Jeremiah on 30 June 2016 for the offence of assault occasioning actual bodily harm committed on 22 October 2014 is quashed.

 3. In lieu thereof Moromi Jeremiah is sentenced to imprisonment for a non-parole period of 1 year 3 months to commence on 25 March 2017 and to expire on 24 June 2018 and a balance of term of 5 months to commence on 25 June 2018 and to expire on 24 November 2018.

Catchwords:

CRIMINAL LAW – appeal against sentence – manifest inadequacy – sentence imposed entirely concurrent with sentence for unrelated offences – whether sentencing judge erred by failing to accumulate sentences – principle of totality

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

CMB v Attorney General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Pannowitz v R [2016] NSWCCA 13
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Fyffe [2002] NSWSC 751
R v Hoskins [2004] NSWCCA 236
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Regina v Wheeler [2000] NSWCCA 34

Category:

Principal judgment

Parties:

Regina (applicant)
Moromi Jeremiah (respondent)

Representation:

Counsel:
Ms Belinda Baker (applicant)
Ms April Francis (respondent)

  Solicitors:
Mr C Hyland, Office of the Director of Public Prosecutions (applicant)
Mr S Eccleshall, Legal Aid Commission (respondent)

File Number(s):

2014/325851

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Not published

Date of Decision:

30 June 2016

Before:

Farmer SC DCJ

File Number(s):

2014/325851

Judgment

1. THE COURT: The respondent Moromi Jeremiah pleaded guilty in the District Court on 30 June 2016 to a charge of assault occasioning actual bodily harm in company contrary to s 59(2) Crimes Act 1900 (NSW). The Crown appeals against inadequacy of the sentence imposed by his Honour the late Judge Farmer SC, on the ground that the learned judge failed to accumulate the sentence to any extent upon a term of imprisonment which the respondent was already serving when the sentence under appeal was imposed.

2. On 25 September 2013 the respondent had committed offences of common assault, aggravated entering of a dwelling house whilst armed, with intent to commit an indictable offence, and causing grievous bodily harm with intent. He had been arrested for that group of offences on the day they were committed and was on remand in custody awaiting trial from then until 28 August 2015. On the latter date he was convicted of those offences and sentenced for them by his Honour Judge Cogswell SC.

3. The assault which was the subject of the sentence now under appeal was committed against a fellow inmate at Parklea Correctional Centre on 22 October 2014 during the above-mentioned period of remand in custody. When the respondent was sentenced for the offences of 25 September 2013, the least serious of those charges, the common assault, was taken into account on a Form 1. On the two other counts he was sentenced to concurrent terms each comprising a non-parole period of 3 years 6 months and a balance of term of 2 years 6 months. The non-parole periods were ordered to commence on the date of arrest and to expire on 24 March 2017.

4. The sentence now under appeal, for the assault of 22 October 2014, was imprisonment for a non-parole period of 1 year 1 month to commence 1 January 2016 and to expire 31 January 2017 with a balance of term of 5 months to commence 1 February 2017 and to expire 30 June 2017. These expiry dates are as entered on the court’s electronic record, JusticeLink, and they accord with the commencement date and duration as pronounced by his Honour at the conclusion of his Remarks on Sentence. However the Remarks, in error, refer to the expiry of the non-parole period as 28 February 2017. This slip may be ignored.

5. The effect of his Honour’s orders is that the whole of the non-parole period for the offence of 22 October 2014 is concurrent with the non-parole periods for the group of offences committed on 25 September 2013, which expire on 24 March 2017. Of the 5 month balance of term imposed by his Honour, the first 7 weeks, approximately, from 1 February 2017 would be redundant as a period of release on parole because that period would also be concurrent with the last stage of the previously imposed non-parole periods for the earlier offences. The remaining 3 months 7 days of the respondent’s balance of term from 25 March 2017 to 30 June 2017 would be concurrent with the first part of the balance of term of 2 years 6 months which the respondent is already required to serve under his Honour Judge Cogswell SC’s sentence for the earlier group of offences.

6. As a result of the adoption of these commencement dates, the very serious assault for which the respondent was sentenced by his Honour Judge Farmer SC has for all practical purposes gone unpunished. The principle of totality requires the Court to consider whether an aggregation of sentences to be imposed is a “just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307 – 308; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]. The imposition of an entirely concurrent term by the learned sentencing judge produced an outcome which is unjust and inappropriate. It fails to recognise or to reflect that the circumstances in which this assault against a fellow inmate took place were different from and unconnected with the circumstances of the prior offences. The Remarks on Sentence do not reconcile the concurrence of the sentences with the disparate character and occasion of the respective offences. The Remarks are silent as to any justification his Honour may have seen for concurrency and backdating.

7. The respondent submitted that his Honour faced an “evidential vacuum” when deciding upon totality, concurrence and accumulation. It was said that this arose from failure of the Crown to tender the Remarks on Sentence of his Honour Judge Cogswell SC. The Court does not consider that the absence of Judge Cogswell’s Remarks deprived the learned sentencing judge of a basis for finding facts relevant to his decision on the appropriate extent of concurrence. The bare fact that the assault of 22 October 2014 occurred inside Parklea Correctional Centre after eleven months of the respondent’s remand, whereas the earlier offences had all been committed outside the prison before his arrest, was sufficient to support a conclusion that the assault in custody for which he was to be sentenced involved entirely separate and unrelated criminality. The Crown made clear in its submissions that this consideration warranted accumulation. If the respondent wished to contend that the detailed circumstances of the offences for which his Honour Judge Cogswell SC passed sentence had a bearing upon the appropriate degree of accumulation then he bore an evidential burden to introduce additional evidence.

8. On the hearing of the appeal each party was asked whether Judge Cogswell SC’s Remarks were to be tendered for consideration in the event of the Court upholding the appeal and moving to resentence. Neither the Crown nor the respondent tendered the Remarks.

9. Accompanying the need to reflect total criminality is the Court’s concern to maintain public confidence in the administration of criminal justice. The concurrence ordered by his Honour, if allowed to stand, would undermine that confidence and give rise instead to a perception that a person who has committed a serious offence has escaped effective punishment: Regina v Wheeler [2000] NSWCCA 34 at [36] – [37]; Pannowitz v R [2016] NSWCCA 13 at [40]. A case such as the present involves an especially important factor relevant to general deterrence which must be taken into account in determining whether concurrence of any degree (and, if so, what degree) will be consistent with the imposition of a sufficient penalty overall. Namely, the sentence must effect sufficient general deterrence to demonstrate that violence and disorder between prisoners in custody will not be tolerated by the courts: R v Fyffe [2002] NSWSC 751 at [33]; R v Hoskins [2004] NSWCCA 236 at [62] – [63]; R v Windle [2012] NSWCCA 222 at [56].

10. This consideration was stated in these terms by Barr J in R v Fyffe at [33]:

“It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them.”

11. Far from providing general deterrence, the fully concurrent sentence under appeal conveys the impression that an inmate may do as he wishes whilst serving his term, without material consequence. To give practical effect to the penalty to be imposed, to reflect the culpability of the offender for the discrete offence of 22 October 2014 and to provide both the general and specific deterrence which the case demanded, the sentence should have been fully accumulated on the non-parole period for the 25 September 2013 offences. The sentence appealed from is manifestly inadequate by reason of its concurrence with the pre-existing term of imprisonment.

12. Full accumulation of the sentence in this case would be consistent with the legislative policy underlying s 56(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That section provides that where a convicted inmate commits an offence against the person while serving a sentence of imprisonment yet to expire, his sentence for the offence committed in custody is to be consecutive upon the pre-existing term, unless otherwise ordered. The respondent was not a “convicted inmate” at the time of the assault. Section 56 does not apply to him. But the full accumulation which the Court on this appeal considers appropriate is certainly not in tension with the objectives of s 56.

13. The respondent argued that the sentence his Honour imposed had a “sensible structure” because the State Parole Authority would have to consider his release to parole under the sentence for the assault sometime before 31 January 2017. It was said the Authority would be able at that time to take into account the relationship between the concurrent sentences and the seriousness of the underlying offending. It is not apparent to what end the Authority might apply that consideration. The short answer to the submission is that the possibility of the Parole Authority considering the matter is irrelevant. The objectives of specific and general deterrence had to be achieved by the sentencing judge’s decision, through denunciation of the crime reflected in an appropriately measured punishment. A decision of the State Parole Authority in exercise of its discretion at a later time is no substitute for a proper sentence.

14. His Honour ordered that the sentence for Loto, one of the co-offenders who took part in the assault in company within the prison on 22 October 2014, should commence on 12 January 2016, which made it wholly consecutive upon the longest non-parole period he was serving under a sentence imposed on 1 December 2014 for unrelated offences. Under that earlier sentence he was subject to a balance of term of 2 years 9 months from 12 January 2016. The learned sentencing judge was aware that “his eligibility for parole had been put back to November” 2016. That does not alter the fact that the sentence for his part in the assault on 22 October 2014 was (correctly) made wholly consecutive. His Honour would not have been able to date the sentence imposed from a commencement later than 12 January 2016, notwithstanding that Loto’s custody up to November 2016 may have been referrable to refusal of parole under the other sentence: s 55(2) and (4) Crimes (Sentencing Procedure) Act 1999 (NSW).

15. As this Court has found error in the sentencing judge’s discretionary decision, the question remains whether, notwithstanding that finding, the Court should exercise its residual discretion not to intervene: CMB v Attorney General for New South Wales (2015) 256 CLR 356; [2015] HCA 9 at [34], [66]. The onus is on the Crown to persuade the Court to intervene. It relied upon four considerations. First, the imposition of a manifestly inadequate sentence was not caused by the Crown. Secondly, there was no delay by the Crown in instituting the appeal or serving the Notice of Appeal. Thirdly, there is no evidence before the Court from which it may be inferred that resentencing would affect the respondent’s progress towards rehabilitation. Fourthly, resentencing would not result in an unjustifiable sense of grievance arising from comparison with sentences received by the respondent’s co-offenders.

16. In urging that the Court should exercise its residual discretion not to alter the sentence passed by his Honour, the respondent relied, first, upon an affidavit in which he deposed to subjective circumstances such as physical abuse as a child, illness of family members and the fact that he assumed responsibilities of fatherhood at a young age when he was not prepared for them. These matters had not been adduced before the sentencing judge and were contained only in an affidavit prepared for and read on the appeal. This Court would not permit such evidence to be adduced belatedly for consideration upon resentencing where, as here, a decision had been taken not to adduce it in the sentence proceedings. As this subjective material could not bear upon the resentencing exercise, should it be undertaken, so too it could not be relevant to whether the Court in its discretion should refrain from interfering.

17. Secondly, it was argued that any degree of accumulation upon the respondent’s sentence for the 26 September 2013 offences would constitute “tinkering”. That is, minimal adjustment of the penalty would be contrary to the principle that a sentencing judge should be allowed as much discretion as possible and that his or her decision should not be interfered with to a trivial extent. It was argued that having regard to the constraints of parity with the penalties for the respondent’s co-offenders the Court would only be considering “the extension of the respondent’s sentence by perhaps three months and we say that that falls foul of the principle against tinkering”. Both premises of this argument are mistaken. Having regard to the full accumulation applied in respect of Loto, parity with the co-offenders would not constrain this Court, upon resentence for the assault, to a limit of three months accumulation from the expiry of the non-parole period imposed for the 25 September 2013 offences. Further, even three months accumulation would be a period of full-time custody solely referable to the assault and that, relative to no effective penalty at all, could not be described as “tinkering”.

18. Thirdly, it was argued that in the sentence hearing:

“The Crown didn’t put a case for accumulation being greater than or equal to Mr Loto and Mr Nogowako. So the respondent didn’t at first instance put forward a subjective case which might have been relevant to that topic. The offender at first instance didn’t put forward a subject (sic) case to ameliorate or to explain, or to excuse, conduct attaching to the earlier offences.”

19. The Court does not accept that the respondent’s decision not to call evidence of subjective circumstances in the sentence hearing could have been in any way affected by the conduct of the Crown case. The Crown clearly submitted to the learned sentencing judge that generally, as a matter of principle, the fixing of a commencement date for the sentences for each of the co-offenders with respect to the assault of 22 October 2014 should be such as to result in some additional penalty for that offence. Whether the degree of accumulation for the respondent would be greater than that for Loto would be entirely a matter for the discretion of the sentencing judge.

20. If the Crown’s stance had a bearing upon the extent and nature of the evidence the respondent would call, the respondent could plainly see what that stance was. The respondent had no basis for assuming, at an earlier stage of the sentence proceedings, that the Crown would adopt a position different from that which it did adopt. Further, evidence of subjective circumstances tendered “to ameliorate or to explain, or to excuse, the conduct attaching to the earlier offences” would have been irrelevant in the sentence proceedings. Whatever such circumstances might have been, the earlier offending had been unrelated to the assault on 22 October 2014 and the question of accumulation could not have been approached by seeking to re-litigate factors in mitigation of the penalty which his Honour Judge Cogswell SC had imposed.

21. The Court accepts that the considerations relied upon by the Crown are compelling. There is no substance in the respondent’s arguments in support of the Court exercising its residual discretion. The sentence under appeal by the Crown must be quashed and the respondent must be resentenced.

22. The objective seriousness of the offence which is the subject of the present appeal will be apparent from the following summary of the facts. The victim was a fellow inmate of the respondent named Athanasiadis. Shortly after 9:36 am on 22 October 2014 the victim emerged from his cell and entered a common room. He commenced conversation with two prisoners named Aukuso and Loto. Loto assumed a fighting posture towards the victim and the victim moved away. At about 9:40 am Loto walked out from the cells carrying a sandwich press. Shortly afterwards Aukuso tried to pull the victim towards the cells but the victim backed away and returned to a table in the common room. Aukuso followed him and at 9:43 am struck the victim’s head with his hand, briefly held his neck in a headlock then walked away.

23. Next, from a standing position behind the victim, Loto approached and struck him hard to the left side of his head with the sandwich press. This caused the victim to slump onto the table. Loto then dropped the sandwich press and punched the victim to his head. Another prisoner, Ngowoka, came up to the victim and punched him in the head. At this point the respondent approached the victim from behind, put both arms around him and pulled him to the ground. He then stomped on the victim’s head. The respondent was dragged away from the victim by Aukuso. The respondent struggled and a Corrective Services officer also tried to restrain him.

24. Yet another prisoner, Nikua, then approached the victim and kicked him. This was followed by the respondent again stomping on the victim. Soon afterwards Correctional Services officers regained control of the situation. The victim was escorted out of the common room. He was transferred to Westmead Hospital where he was found to have sustained a fracture to the base of his thumb. He underwent surgery for that injury and remained in hospital for 2 days before being discharged back to Parklea. He had also sustained a minimal displacement fracture to the base of his skull which was managed conservatively. The victim was released from custody on 31 October 2014 and moved interstate. He apparently received no further treatment for his injuries.

25. No motive has been established, on the part of any of the assailants, for the attack on this victim. The respondent did not give evidence before the learned sentencing judge. His conduct can fairly be assessed as a vicious, unprovoked and cowardly attack, in company, on a man who had been rendered vulnerable by two circumstances. First, the victim was imprisoned together with the respondent and consequently had no ability to avoid contact with the respondent and his co-offenders in the first place or to disengage and remove himself once conflict began. Secondly, he was vulnerable at the time the respondent seized him and dragged him to the floor because he had been stunned by the blow delivered to his head by Loto wielding the sandwich press. He had also received a punch to the head from each of Loto and then Ngowoka. It is obvious that by the time the respondent stomped on his head he was passive and unable to defend himself, stunned by repeated blows to the head and lying on the ground.

19. A significant aspect of the seriousness inherent in a charge under s 59(2) is that the assault is committed in company. Where a group of men make an attack upon a single victim the latter will usually have no chance to defend himself adequately, will be at risk of sustaining severe injury and will likely only suffer worse if he resists because of the probability of being overwhelmed. The objective seriousness of this particular instance was heightened by Loto’s cowardly attack from behind with a blunt weapon, capitalised upon by the respondent almost immediately after.

20. The objective seriousness of an assault committed by stomping on a victim’s head has been remarked upon in this Court: AM v R [2012] NSWCCA 203; (2012) 225 A Crim R 481; Wainwright v R [2016] NSWCCA 19.

21. The respondent’s plea of guilty to this charge was entered in the District Court, not at the first opportunity. The learned sentencing judge considered that he was entitled to some discount for his plea but did not specify how much he allowed. From the procedural history it would appear no more than 10% would have been appropriate. Whilst the Crown was saved the trouble and expense of a trial, the charge appears to have been unanswerable. The whole episode was captured on closed-circuit television. Eyewitness accounts could have been given by Corrective Services officers.

22. As far as the respondent’s subjective circumstances are concerned, his criminal record is appalling for a young man, only 19 years of age when the subject offence was committed and only 21 years at the date of this judgment. Up to 22 October 2014 the respondent had accumulated numerous convictions in the Childrens Court, from age 14 years, for larceny, breaking and entering, affray, resisting police officers, stalking and intimidating, common assault, robbery in company and assault occasioning actual bodily harm. Then came the offences of 25 September 2013 of entering a dwelling house armed and in company with intent to commit an indictable offence and intentionally causing grievous bodily harm, for which he was sentenced by his Honour Judge Cogswell SC.

23. Interspersed throughout his record are instances of breaches of bonds and supervision orders and failures to appear. He has to this point entrenched himself as a violent offender with no respect for the law or for law enforcement authorities. He is not entitled to any lenience in sentence for the assault on his fellow inmate.

24. His custodial history is also extremely poor. It shows repeated institutional misconduct and defiance of authority and of the law. There are 7 instances of fighting and assaults between 13 July 2014 and 22 April 2016. He has failed a urine test, damaged and defaced his cell, disregarded Corrective Services officers’ directions and been in possession of an offensive weapon. The assaults referred to were on other inmates. The offensive weapon was a shiv, an improvised knife blade. He has assaulted and abused correctional officers in the course of resisting searches.

25. It has been mentioned that in the sentence proceedings before his Honour Judge Farmer SC the respondent chose not to advance any subjective material. He tendered no personal history or background information. There were no character references. He did not express remorse with respect to this offence nor did he do or say anything to indicate remorse, implicitly. In the absence of any such information and having regard to his criminal record his prospects of rehabilitation appear extremely poor. This is to some extent qualified by his affidavit read on the appeal deposing to his enrolment in courses and recently improved co-operation in gaol.

26. In resentencing the respondent, parity with the sentences imposed upon his co-offenders for their part in the assault of 22 October 2014 must be considered in more detail. His Honour sentenced Loto to imprisonment for a non-parole period of 1 year 3 months and balance of term of 5 months. His Honour considered Loto’s part in the group attack upon the victim more serious than the respondent’s part. We do not agree. Whilst Loto struck first, from behind with a weapon, the respondent’s actions were equally cowardly because he acted when the victim was already impaired by earlier blows. Stomping on the man’s head, then stomping on him again after a brief interruption of the attack due to the attendance of Corrective Services officers, was no less severe a form of assault than Loto striking him with a blunt weapon.

27. A subjective case was presented to the learned sentencing judge in respect of Loto but we do not consider that it provided any basis for substantial differentiation in penalty between him and the respondent. On the assumption that his Honour applied a 10% discount for Loto’s guilty plea, the discounted overall sentence for Loto would have been 1 year 10 months, with a non-parole period of 1 year 4 months. We consider this to be at the limit of the available scope for leniency for his offence. On resentencing the respondent upon this Crown appeal he should be treated equally with Loto. Accordingly, after allowing the 10% discount, his sentence should also be a non-parole period of 1 year 3 months and a balance of term 5 months.

28. The orders of the Court are:

1. The appeal is allowed.

2. The sentence imposed upon Moromi Jeremiah on 30 June 2016 for the offence of assault occasioning actual bodily harm committed on 22 October 2014 is quashed.

3. In lieu thereof Moromi Jeremiah is sentenced to imprisonment for a non-parole period of 1 year 3 months to commence on 25 March 2017 and to expire on 24 June 2018 and a balance of term of 5 months to commence on 25 June 2018 and to expire on 24 November 2018.

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Decision last updated: 02 November 2016