Funaki v R

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WALTON J: I agree with Basten JA.

ADAMSON J: I agree with Basten JA.