R v Rappel
[2019] ACTCA 11
•17 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Queen v Rappel |
Citation: | [2019] ACTCA 11 |
Hearing Date: | 6 May 2019 |
DecisionDate: | 17 May 2019 |
Before: | Murrell CJ, Mossop and Bromwich JJ |
Decision: | Appeal allowed. See [37]. |
Catchwords: | APPEAL – CRIMINAL LAW – Crown appeal against sentence – intentionally inflicting grievous bodily harm – whether sentence manifestly inadequate – whether primary judge erred in not giving reasons for imposing sentences concurrent with existing sentences – appeal allowed – respondent resentenced |
Legislation Cited: | Crimes Act 1900 (ACT) s 19 Crimes (Sentencing) Act 2005 (ACT) ss 66, 72 |
Cases Cited: | Henry v The Queen [2019] ACTCA 5 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Yuen [2019] ACTSC 70 |
Parties: | The Queen (Appellant) Marcus Rappel (Respondent) |
Representation: | Counsel R Christensen (Appellant) J Purnell SC (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Bevan & Co Lawyers (Respondent) | |
File Number: | ACTCA 55 of 2018 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 27 September 2018 Case Title: R v Grech; R v Rappel Citation: [2018] ACTSC 271 |
THE COURT:
Introduction
This is an appeal by the Crown against sentences imposed on the respondent, Mr Marcus Rappel, by a judge of this Court on 27 September 2018, in respect of two counts of intentionally inflicting grievous bodily harm on 7 August 2017 upon two fellow inmates of a prison at which he was serving a lengthy term of imprisonment. At the time of that offending, Mr Rappel was serving aggregate sentences of 32 years and 2 months’ imprisonment for:
(a)Murder: 30 years imprisonment;
(b)recklessly inflicting grievous bodily harm: two years and 11 months imprisonment;
(c)assault occasioning actual bodily harm: 10 months imprisonment; and
(d)contravening a protection order: two years and six months imprisonment.
The prior murder sentence commenced on the date upon which it was committed, being 28 February 2015, and ending on 27 February 2045. The remaining prior three sentences were imposed so as to be partly concurrent and partly consecutive with each preceding sentence, producing an end date to the aggregate head sentence of 27 April 2047. The single non-parole period for those four sentences was 26 years, to expire on 27 February 2041.
The net effect of the sentences imposed for the additional assaults committed in prison on 7 August 2017 was to extend the existing head sentence by just under six months, to 24 October 2047, and to extend the existing non-parole period by three months to 26 May 2041. The Crown alleges a specific error in relation to not giving reasons for departing from a statutory default position that offences committed by prisoners be concurrent to any existing sentence, and manifest inadequacy of the sentences imposed in a number of different ways.
Overview of the offences
Mr Rappell, and four co-accused fellow prisoners, were charged and put on trial by judge alone on offences arising out of two assaults that took place on two other prisoners on 7 August 2017 at the Alexander Maconochie Centre (AMC). Following the Crown being granted leave on the second day of the trial to file a fresh indictment in respect of the respondent and one co-accused, Mr Rappel pleaded guilty to two counts of intentionally inflicting grievous bodily harm against two fellow inmates, who are brothers, Mr Chidi Okwechime and Mr Emeka Okwechime.
The charges against Mr Rappel in the fresh indictment were the same as those upon which he was committed for trial. The pleas of guilty were entered following the offender providing a statement to the Crown as to him inflicting the injuries on Chidi and Emeka and the lack of involvement of three of his co-accused and other detainees in the offending. A fourth co-accused, Mr Daniel Grech, pleaded guilty to common assault of Emeka and received a one-month suspended sentence arising from a single punch to the head, which was found by the primary judge not to be material to the injuries sustained.
Mr Rappel’s original motivation for the first assault upon Chidi was in the nature of a pre-emptive strike to dissuade Chidi from threatening Mr Rappel. Mr Rappel considered that he would be taken more seriously by Chidi he did this in company of other inmates. It seems that this original premeditated decision to assault Chidi in the presence of the other four inmates got out of hand, and resulted in an extremely violent and serious assault of Chidi, and a somewhat less serious assault of his brother, Emeka, a short time later. The injuries, detailed by his Honour, were substantial, and potentially life threatening in the case of Chidi.
The offence of intentionally inflicting grievous bodily harm carries a maximum penalty of 20 years’ imprisonment: see s 19 of the Crimes Act 1900 (ACT).
On 27 September 2018, the following concurrent sentences were imposed on Mr Rappel in respect of the two counts of intentionally inflicting grievous bodily harm:
(a)eighteen (18) months’ imprisonment, to commence 25 April 2046 and end on 24 October 2047; and
(b)six (6) months’ imprisonment, to commence on 25 April 2046 and end on 24 October 2046.
The non-parole period to which Mr Rappel was already subject was also amended, adding three months, to expire on 26 May 2041. Mr Rappel’s total effective sentence, taking into account the sentence already being served, was therefore increased by six months for the head sentence and three months for the non-parole period.
Principles relating to Crown appeals
10. As this Court said in The Queen v Lee [2017] ACTCA 30 at [53], a Crown appeal against sentence is a “unique species of appeal”; see also The Queen v Avery [2018] ACTCA 57 at [6] and The Queen v Sharp [2019] ACTCA 7 at [8]. Such appeals “constitute an anomaly in the criminal justice system and so should be instituted sparingly”: The Queen v TW [2011] ACTCA 25; 6 ACTLR 18 at [3]. Appropriate occasions that might arise for the bringing of a Crown appeal, include, as stated in R v Clarke [1996] 2 VR 520 at 522:
(a)to correct a sentence that reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle;
(b)to enable the Court to establish and maintain adequate standards of punishment;
(c)to ensure uniformity in sentencing, so far as the subject matter permits.
11. Careful attention must to be given to the maximum penalty as it provides a yardstick for comparison between the worst possible case and the case before the Court at the time: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. That principle assumes particular importance when the legislature has seen fit to increase the maximum penalty, in this case from November 2011 from 15 to 20 years imprisonment, and to increase the penalty for the lesser offences as well. The legislature speaks for the community in reflecting an increasing intolerance for violent offending.
12. In Henry v The Queen [2019] ACTCA 5, the Court explained the role of an appellate court on an appeal against sentence on the grounds of manifest excess. The statements of principle may also be applied in relation to a claim of manifest inadequacy. The Court noted at [30]–[32] that:
A claim of manifest excess calls into question what is quintessentially a discretionary decision: Lowndes v The Queen [1999] HCA 2; 195 CLR 665.
The applicable principles were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
· The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
See also Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 (Monfries) at [20]-[23]; Singh v The Queen [2015] ACTCA 65 at [54]-[60]; Jovanovic v The Queen [2015] ACTCA 29 at [41]-[44].
Mr Rappel’s offending
13. The sentence hearing was conducted upon the basis of an agreed statement of facts. While the primary judge also referred to certain closed-circuit television (CCTV) footage, it was common ground that this did not depict either of the assaults. That agreed statement of facts included the following key paragraphs as to the assaults that took place at [11]–[21]:
As at the date of the offence, there was a dispute between CHIDI and the offender RAPPEL and the offender RAPPEL had been told that CHIDI had threatened to kill him. The offender RAPPEL was worried about the threat and wanted to discuss the situation with CHIDI. RAPPEL wanted to persuade CHIDI to not threaten him as he had others in the accommodation unit who would support him.
At about 11.31 am that day, the victims entered AU-North after attending the AMC education program during the morning. CHIDI and EMEKA walked upstairs to the second level and entered EMEKA’S cell, cell number 13.
Around this time, the offender RAPPEL was seated at a table in the common area, along with other detainees. RAPPEL had told the other detainees that he was going to talk to CHIDI after he had gone into his cell and had suggested that if they came with him this might convince CHIDI that he was serious about having support.
CHIDI exited cell 13 at 11.33 am and walked downstairs and entered his cell (cell 5) alone. RAPPEL and the other detainees followed him. The cell door was closed behind them.
Inside the cell, RAPPEL began speaking with CHIDI. CHIDI became angry and swore at RAPPEL and a fight started. The offender RAPPEL hit CHIDI and the fight escalated with the offender RAPPEL getting the better of the victim. The offender RAPPEL was dragged off the victim by other detainees. The offender RAPPEL noticed that the victim was covered in blood.
The offender RAPPEL left cell 5 and noticed that he had some blood on his shirt. RAPPEL went upstairs to cell 13 to speak to EMEKA and tell him what had happened. EMEKA would not speak to the offender. RAPPEL changed his shirt.
At about 11.39 am, EMEKA exited his cell, ran downstairs, and entered CHIDI’s cell. The offender RAPPEL followed him. The offender RAPPEL asked other detainees to come with him as he anticipated that EMEKA would see what had happened to CHIDI and the offender wanted to explain the situation.
Two other detainees, Jeremy REID and Daniel GRECH, opened the cell door. EMEKA was near to the cell doorway and the Crown contends that GRECH punched EMEKA in the face with his left hand in a clenched fist. This act is observable on the CCTV footage and it is evident that the force of the strike caused EMEKA’s head to rock backwards. EMEKA pushed both of his hands out towards the faces of GRECH and REID before EMEKA moved back into the cell. The detainees, including the offender RAPPEL then entered the cell and RAPPEL closed the door behind him.
Inside the cell, fighting broke out and the offender RAPPEL punched EMEKA a number of times. It is visible on the CCTV footage that approximately 28 seconds after the door was closed, the cell door shook consistent with force being applied from inside. The offender RAPPEL got the better of EMEKA and was dragged of[f] the victim by other detainees.
EMEKA left the cell and the offender RAPPEL and the other detainees left a short time later. The CCTV footage shows that EMEKA’s face was visibly red around his eyes, nose, forehead and ears. There was blood on his right cheek, around his right ear and on his shirt and his shoes. EMEKA began wiping his nose which appeared to have blood dripping out of it. EMEKA then walked back into CHIDI’s cell and closed the door.
The Crown accepts that the offender RAPPEL’s intention to cause grievous bodily harm to the victims was formed during the course of his assaults on them. The Crown acknowledges that the offender RAPPEL accepts that he continued to hit both victims after he should have desisted from the assaults.
14. After describing the events following the assaults, which are not presently material, the agreed statement of facts provided the following details of the injuries sustained:
Chidi injuries (at [31]–[35]) – count 1
CHIDI was admitted to the Canberra Hospital on 07 August 2017. On 8 August 2017 he was examined by Dr Catherine Brogan. The victim sustained ‘extremely serious injuries’ with at least 36 individually identifiable injuries. The injuries included –
· Abrasions, bruising and lacerations to the head, face, chest and torso and the knee;
· A ‘large’ left sided hydropneumothorax with a small hydrothorax component;
· Fractures to orbital bones; and
· Fractured ribs.
The treatment of CHIDI included multiple X-rays, CT scans, antibiotics and pain relief.
The hydropn[eu]mothorax, which is potentially life-threatening condition, was caused by the rib f[r]acture and required treatment of the insertion of a chest tube to remove the free air in the chest cavity.
Multiple injuries of a variety of types across several anatomical planes including the face, head, chest and leg were sustained by the victim. The distribution and type of injuries were highly suggestive of being caused in an assaultive process.
CHIDI was discharged from the Canberra Hospital on 08 August 2017.
Emeka injuries (at [36]–[39]) – count 2
EMEKA was admitted to the Canberra Hospital on 07 August 2017. The victim was found to have the following injuries –
· Avulsion injury to the right ear resulting in a ‘large cut’ or wound behind [the] pinna of [the] right ear;
· Nose swelling; and
· Tenderness over right anterior chest wall.
An avulsion injury involving the ear occurs when the ear tissue is forcibly removed from its insertion point or where it attaches to the scalp.
The injury to the victim’s ear was treated with surgical closure under local anaesthetic. The injury and treatment required was anticipated to result in permanent scarring.
[EMEKA] was discharged from the hospital on the evening of 7 August 201[7] and returned to the AMC.
Reasons of the sentencing judge
15. Senior counsel for Mr Rappel took the Court to parts of the sentence hearing transcript. It is not necessary to reproduce those passages as they do little more than reveal that the primary judge was of the view that, given the length of the existing sentence, with a non‑parole period expiring in 2041, there was little point in adding much time to the head sentence, and that what mattered was the addition to the non-parole period. Those sentiments do not materially change the necessary exercise of considering his Honour’s reasons given for the sentences that were imposed, which reflects those sentiments and helps to explain the result.
16. After noting the maximum penalty of 20 years, the primary judge found, as to the injuries inflicted and the seriousness of the offending at [12]–[13]:
During the course of the trial I saw evidence including photographs, indicating the extent of the injuries suffered by the two victims. In relation to Emeke Okwechime the main injury was to the right side of his head and has resulted in scarring above his right ear. The injuries to Chidi Okwechime were more serious and included a fractured rib, a punctured lung, fractures to the eye socket and significant bruising.
All of the offences occurred while the assailants and the victims were in prison. The attacks had the hallmark of, if only for a short time, a premeditated assault. The nature of the injuries renders Count 1 to be of at least medium objective seriousness. Count 2 is objectively less serious. However, having regard to the CCTV footage that I viewed during the trial, it would be wrong to attribute the blame for the whole of the injuries to the two victims to Mr Rappel. I can go no further than to conclude that he was a substantial contributor to the injuries.
17. At [18], the primary judge said in relation to Mr Rappel (and Mr Grech who was sentenced at the same time) that for whatever reason persons may be in prison, the intent is that they be deprived of their liberty, not that they be susceptible to attack, with the victims being captive to their circumstances, and not being in a position to remove themselves from danger (observing at [19] that in the case of Chidi, he was more inclined to fight than flee). His Honour made the important observation that the attacks lay “entirely at the hands of the two offenders”, earlier finding (at [17]) that Mr Grech’s offence was of minor objective seriousness.
18. The primary judge’s reasons as to the sentences imposed were as follows at [20]–[23]:
In sentencing these offenders, as with all offenders, it is necessary to take into account the objects and purposes of sentencing as stated in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT).
Section 72 of the Crimes (Sentencing) Act 2005 (ACT) says that an offence committed while an offender is on lawful custody must be served consecutively with any existing sentence of imprisonment. This Court does, however, have the power to order otherwise. I note s 72(4), requiring special circumstances is not applicable here.
I think the sentences for Mr Rappel should be partially concurrent and partially consecutive to the sentence he is already serving. There also needs to be an adjustment to the non-parole period to ensure the sentences have a real effect upon Mr Rappel.
I think the sentence for Count 1 should be 18 months’ imprisonment and for Count 2, six months’ imprisonment. These sentences should be served concurrently but commence at a time that will result in the current term of imprisonment being extended by six months. In addition, the non-parole period should be extended by three months.
The grounds of appeal
19. The Crown appeals against the whole of the sentences on the ground of manifest inadequacy, in particular asserting that:
(a)the sentences imposed in respect to count 1 and count 2 are manifestly inadequate;
(b)there was an inappropriate accumulation in the sentences imposed between the counts and as to the total sentence imposed; and
(c)the overall head sentence is manifestly inadequate and as a result the non-parole period is manifestly inadequate.
20. The Crown also appeals on the basis that the primary judge erred by failing to give reasons for making a direction pursuant to s 72(3) of the Crimes (Sentencing) Act 2005 (ACT). Section 72(2) of that Act requires that, where an offence is committed while the offender is in lawful custody serving an existing sentence, and in the absence of a direction under subsection (3) to the contrary, the primary sentence must be served consecutively with the existing sentence of imprisonment.
21. The Crown sensibly abandoned a further ground of appeal to the effect that the primary judge erred in not attributing responsibility for the whole of the injuries sustained by the two victims. This relied upon the passage in the primary judge’s reasons at [13], produced above at [16]. Properly considered, and in the context of the balance of the reasons, and in particular [18], referenced at [17] above, his Honour was doing no more that acknowledging that Mr Rappel had not acted alone in the conduct, being accompanied by the other inmates, but was not suggesting that anyone other than him had inflicted the injuries. Senior counsel for Mr Rappel sought to suggest that some transcript references suggested some degree of participation in the infliction of injuries upon the two victims, but that contention was not made good, especially as it was contrary to the terms of the agreed statement of facts, and his Honour did not suggest that he was departing from what had been agreed, as opposed to obtaining a better appreciation of a limited aspect of what had been agreed to.
Asserted error as to s 72 of the Crimes (Sentencing) Act 2005 (ACT)
22. The Crown relies upon New South Wales authority in relation to a similar provision to s 72 of the Crimes (Sentencing) Act, which also contained a default that a sentence for an offence committed in prison be consecutive to the existing sentence being served. Provision was also allowed to depart from that default, but only in special circumstances if the offence was committed against custodial personnel. In R v Hoskins [2004] NSWCCA 236 (Hoskins), Levine J (with whom Hulme J agreed and Giles JA agreed as to the principles) said of that like provision at [31]:
Here, I further interpolate that it is to be noted that it is only in relation to prison officers and juvenile justice officers that “special circumstances” must be found by the sentencing judge to depart from consecutive sentences (s 56(3A)). Otherwise partial concurrence can be ordered by the sentencing judge (s 56(3)). In the former case obviously the reasons for the finding of “special circumstances” would have to be exposed; in the latter the reasons in my view would need to be exposed.
23. As a general proposition, the above statement of principle from Hoskins should be accepted. There may be cases in which the reason for departing from the statutory default of a consecutive sentence will be sufficiently obvious so as to not require any express statement. But this was not such a case. Mr Rappel was already serving a sentence for offences which included acts of extreme violence; and chose to commit further serious violent offences. In those circumstances, there needed to be a good reason to depart from the statutory norm. It is not enough, as Mr Rappel asserts, that the default position was not mandatory. To regard that as being acceptable treats the discretion as being without even the constraint of ordinarily giving reasons.
24. The purpose of s 72 of the Crimes (Sentencing) Act is clearly enough to ensure that, ordinarily, those already within the penal system be given no leniency by way of concurrency with an existing sentence should they offend again while in custody. A departure from such a clear statutory statement of a sentencing norm should not lightly be countenanced. Within the jail community, further offending must be seen to carry the consequence of a full sentence being imposed as an almost inevitable outcome, so as to effectively deter further offending, rather than being seen to be subject to an effective discount because of an existing sentence. Those already in custody will then have the strongest of incentives not to transgress further and thereby extend their incarceration, the date of release obviously being of vital importance. If a departure from the statutory norm is considered appropriate in the exercise of the discretion retained to do so, it should be explained so that all concerned, including custodial authorities, those affected by the conduct, and an appeal court, understands why that norm has been departed from.
25. In this case, the extent of the departure from full consecutiveness upon the existing sentences was significant. In the case of the second count concerning the assault of Emeka, the head sentence was wholly subsumed in the existing sentence. In the case of the first count concerning the assault of Chidi, just under six months of the 18 month head sentence was ordered to extend beyond the existing sentence. The increase in the non-parole period arising from both additional sentences was only three months. Such a high degree of departure from the statutory norm of completely consecutive sentences, producing such a low increase in the non-parole period, called for a clear and express explanation; especially when no good reason for doing so was otherwise apparent. As no such reasons were given, the primary judge erred and this ground of appeal must succeed. However, that error is only of moment in terms of the outcome of the appeal if the sentences arrived at were also manifestly inadequate.
Asserted error as to manifest inadequacy
26. Mr Rappel’s submissions on this topic do no more, in substance, than point out that the Crown must demonstrate that the conclusion that the sentences imposed are in fact manifestly inadequate is made out. The Crown has amply discharged that burden for the following reasons.
27. The Crown submission as to the asserted manifest inadequacy of the individual sentences imposed focuses on the combined effect of the objective seriousness of the offending when regard is had to:
(a)injuries that were inflicted well in excess of the threshold constituting grievous bodily harm (especially in relation to Chidi, whose injuries could well have been fatal);
(b)that they occurred while he and the victims were in custody;
(c)that they were pre-mediated and without actual provocation;
(d)that they took place in company; and
(e)the maximum penalty for each offence was 20 years imprisonment.
28. The Crown submits that while the primary judge overtly referred to some of these features, others were not mentioned in his Honour’s reasons at all. All of those features were not in any event reflected in the sentences imposed of 18 months and six months against the 20 year maximum, bearing little correlation to the objective seriousness of the offending, with guilty pleas only after the trial had begun, no mitigating circumstances being advanced at all, and no basis for any first time offending leniency. There was much in the way of aggravation and nothing beyond the late guilty pleas themselves in mitigation.
29. The Crown submits that each of those features are compounded when regard is had to:
(a)a series of comparative sentences to which the sentences imposed by the primary judge bore no reasonable comparison, all of which post-dated the increase in the maximum penalty – a Crown summary of those cases is reproduced at [33] below;
(b)complete concurrency as between the two offences which had different victims and took place at a different time, albeit not far apart, with no apparent consideration given to any degree of consecutiveness as between the two offences; and
(c)the very short addition to the non-parole period of only three months, which failed to give effect to general deterrence.
30. To that should be added the continuing requirement of specific deterrence. Mr Rappel, as well as other offenders serving lengthy sentences for crimes of violence, cannot be allowed to think that more of the same can be carried out with impunity, or even with reduced consequences.
31. The conclusion of manifest inadequacy is not difficult to draw in this case. The sentences imposed were starkly outside the bounds of what was necessary and appropriate. A mere additional six months head sentence, and worse, a mere additional three months non-parole period does not come close to meeting the evident statutory purpose, nor the broader principles of denunciation, punishment or deterrence both general and specific.
Residual discretion
32. This was not a case in which the Crown had much difficultly in establishing that this was not a suitable case in which to exercise the Court’s residual discretion not to intervene. The sentences imposed were tainted by both overt error in not giving reasons, and by a substantial error as to the result. The Crown did not contribute to this outcome in any way at the sentence hearing, and lodged an appeal on the day that the sentences were imposed. The appeal has been heard and determined with reasonable dispatch. The resentencing exercise cannot be seen to be other than substantial both in the principles involved and in the degree of intervention that is warranted.
Resentencing
33. The details of the offences are set out in some detail above. The Court is greatly assisted by a table of comparative sentence annexed to the Crown submissions as reproduced below (adding in the maximum penalty), noting that a number of these prior offences involved the less serious fault element of recklessness, and for most the final result came about after the application of a substantial discount for an early guilty plea:
Authority
Overview
Sentencing factors
Sentence imposed
R v Yuen [2019] ACTSC 70
Loukas-Karlsson J
Recklessly inflicting GBH
[Maximum penalty: 13 years imprisonment]
The offender was serving a term of imprisonment at AMC. The offender and another person went into the offender’s cell and started a fight. The offender was armed with a small sharp-edged weapon. The victim sustained multiple lacerations to his face and body.
The offending involved a weapon, was not unprovoked and involved aspects of excessive self-defence. The offence was found to be below mid-range of objective seriousness. The offender pleaded guilty in the Magistrates Court (25% discount) and had been in custody for an offence of murder since 11 August 2010.
3 years imprisonment
R v Bourne; R v Manns [2018] ACTSC 35
Elkaim J
Intentionally inflicting GBH
[Maximum penalty: 20 years imprisonment]
The offence arose in the context of the sale of illicit drugs. Mr Bourne struck the victim’s hand with a sledgehammer. The victim suffered fractures to his hand requiring surgery and in the insertion of a titanium screw. At the time of sentence, the victim had continuing pain and limited movement in his fingers, with the possibility of amputation of one finger.
Mr Bourne had a history of drug use and was a member of an Outlaw Motorcycle Gang. He was 30 years old at sentence. He expressed remorse. He came before the Court with a criminal history, including offences of violence. He was afforded a 25% discount for his guilty plea.
6 years and 9 months imprisonment
R v Dunn [2017] ACTSC 227
Mossop J
Recklessly inflicting GBH
[Maximum penalty: 13 years imprisonment]
Mr Dunn rendered a single punch to a victim whilst intoxicated in Civic in the presence of Police, who had tried to move the offender away from the victim. The victim suffered a rupture to his right eye and some permanent impairment of vision in that eye.
The offender was 26 years old at the time of the offence, had previous convictions for assault, and received a 20% discount on sentence for his guilty plea.
27 months imprisonment
R v Islam [2015] ACTSC 99
Burns J
Recklessly inflicting GBH
[Maximum penalty: 13 years imprisonment]
Mr Islam was serving a period of imprisonment at the Alexander Maconochie Centre (AMC) for offences of violence. Whilst in custody at the AMC, Mr Islam assaulted a detainee with 3 punches to the face and stomped on the victim’s head. The injuries suffered by the victim included facial fractures to eye socket, upper cheekbone, nose and jaw. The victim required reconstructive surgery under general anaesthetic, including insertion of plates and screws.
The offence was found not to be premeditated. A discount of 15% was granted to Mr Islam for his guilty plea. He was 42 years old at the time of the offence and found to have poor prospects of rehabilitation.
6 years imprisonment commencing 4 July 2018. He was already serving a sentence of imprisonment for 9 years commencing 4 July 2009. His non-parole period was readjusted to 9 years and 6 months, expiring 3 January 2019.
R v Yuen (unreported, Supreme Court of the ACT, 31 May 2013)
SCC No 188 of 2012
SCC No 109 of 2011
Penfold J
Intentionally inflicting GBH
[Maximum penalty: 20 years imprisonment]
Mr Yuen had been in remand custody for nearly two years. The victim was another detainee, and was playing cards at a table in the common area. Mr Yuen came out of his cell, took off his shirt, stretched, then picked up a metal vacuum cleaner pipe. He approached [the] victim from behind and hit him on the head with enough force to render him semi-conscious. Mr Yuen then hit Mr Sarbandi two or three times more in the head, and then hit him hard in the face. Mr Sarbandi did not respond or seek to guard himself from the blows.
The sentencing judge assessed the offending as ‘at least the mid-range of objective seriousness’
6 years and 6 months imprisonment
34. There is no requirement of numerical equivalence with any of the above sentences. Each is no more than a yardstick to assist in arriving at a just sentence, weighing up all the competing considerations.
35. Synthesising all the features (including in particular those identified by the Crown at [27]–[29] above), appropriate, but not crushing, sentences and with as much leniency as can reasonably be mustered for a re-sentencing exercise following a successful Crown appeal, are:
(a)a head sentence of 5 years imprisonment on count 1 for the assault on Chidi;
(b)a head sentence of 2 years and 6 months imprisonment on count 2 for the assault on Emeka;
(c)an accumulation as between count 1 and count 2 of one year, producing an overall head sentence of 6 years imprisonment;
(d)a starting point combined non-parole period of 4 years, had these two offences been committed in isolation from the existing sentences.
36. It is necessary to give some recognition to the fact that Mr Rappel is going to be considerably older than he is now by the time that he becomes eligible for parole. He is presently 44 years of age. A four year addition to his non-parole period will mean that he will not become eligible for parole until 27 February 2045, by which time he will be 70 years of age, with some likelihood by then of age-related illness or infirmity. The extended head sentence will expire on 27 April 2053, when he is 78 years of age, allowing ample discretion to the parole authorities for delaying his release if that is considered necessary. It is therefore appropriate to afford a slightly greater measure of discretion to the parole authorities by reducing the increase in his non-parole period to three years, until 27 February 2044, to allow for this unusual circumstance, without detracting from the starting point of a 4 year non-parole period for this gravity of offending but for those circumstances.
37. The orders of the Court will therefore be that the sentences imposed by the primary judge be quashed, and in lieu thereof, Mr Rappel be sentenced:
(a)in respect of count 1 (XO2018/31344), to imprisonment for 5 years, to commence on 28 April 2047 and to expire on 27 April 2052;
(b)in respect of count 2 (XO2018/31345), to imprisonment for 2 years and 6 months, to commence on 28 October 2050 and to expire on 27 April 2053;
(c)the single non-parole period for the prior sentences and for the additional sentences expire on 27 February 2044, pursuant to s 66 of the Crimes (Sentencing) Act 2005 (ACT).
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 17 May 2019 |
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