Aitchison v R

Judgment 1BASTEN JA: I agree with Blanch J. 2BLANCH J: The applicant seeks leave to appeal against a sentence imposed on 25 August 2010 in the District Court. He was convicted by a jury after trial on a charge of wounding Christopher Evans with intent to cause grievous bodily harm contrary to s33(1)(a) Crimes Act 1900 which carries a maximum penalty of 25 years imprisonment and in respect of which there is a standard non-parole period of seven years. 3He was sentenced to nine years imprisonment from 29 June 2010 and a non-parole period of six years was specified. 4The only ground of appeal is that "the judge erred in the approach taken to the standard non-parole period in the exercise of the sentencing discretion." 5After the trial the judge made the following finding as to the relevant facts for the purpose of sentencing: "His (the victim's) account essentially was that upon answering a knock at the door of his residence at 6/23 Pyrmont Bridge Road, Camperdown, on the date in question, 7 June 2009, a knock on the door to the person by the name of Andrew Touty, who he referred to as Andy. He said thereafter that the offender, who was known to him as Stretch, lunged forward, grabbed him by the throat and produced a knife, while saying words to the effect of "Where's the marihuana?" and thereafter stabbed him, Mr Evans. What happened was they both fell onto the bed where Evans pinned the offender whilst calling out for help. He pinned him for a number of minutes, the knife was attached to him, or inside him at that point and after a few minutes Evans weakened and the offender pushed him off and ran out. It was obvious from any observation of Evans and the evidence at the trial that he is a very large man, a man of some 150 kilograms, but he was clearly out of shape and unfit, and according to his evidence he had been recently released from hospital and did not have much reserve of energy. The stab wound itself was to the left side and under the armpit and I will deal with that again later. Andrew Touty was clearly an accomplice, to use that loose expression. He gave evidence for the Crown in the trial and his evidence was to the effect that the visit to the residence of the victim had been pre-planned with a view to obtaining marihuana. And according to Touty the accused remarked to him, before setting off, "If anything happens I'll scare him with the knife" and deposited a knife down his pants. Touty said that it was he who knocked at the door, which corresponds with the evidence of the victim and he also says when the door was opened the offender, who had been standing nearby, burst in and demanded the pot. The offender was interviewed on 7 June 2009 and he told a series of blatant lies to the police. At one point he denied going to the unit and ultimately said he stood nearby. In addition he false implicated Touty as the actual stabber. In evidence at the trial the offender's evidence was to the effect that this was all Touty's idea and indeed the offender was unaware of the knife until Touty produced it outside the unit and it was then that the offender secreted the knife down his pants. On the offender's version thereafter he waited outside, heard arguing between Touty and the victim, and ultimately he approached closer to the unit and at that point Evans enquired when he was going to get eighty-five dollars that the offender was said to have owed him. And thereafter, on the offender's account, it was Evans who dragged the offender inside and tossed him around like a rag doll and punched him to the face. They finished up on the bed with Evans on top, on the offender's account, and the offender claimed he used the knife to get Evans off, in effect and gave him a little prick under the armpit. It was clear that looking at the evidence in the trial that there was no objective evidence, in my view, that supported the account of the offender and indeed the suggestion that he had been struck by Evans repeatedly and vigorously, was not borne out by any objective evidence at all. It was no surprise that the somewhat fanciful account of the offender was rejected by the jury, and, as I have said, I accept the evidence of the victim beyond reasonable doubt and I accept Touty's evidence that it was the offender who initiated the visit and the offender armed himself, in anticipation of a confrontation with the victim. The wound itself did not require treatment by suturing, rather it was treated with glue; it was a two centimetre obliquely oriented wound, just higher than the nipple at the left armpit but it did track down to the ribs where it stopped. It went in about six or seven centimetres which I remarked is more by good luck than good management. It was on any view a significant wound and inflicted with a large and dangerous knife with a twenty centimetre blade. It is a fact this stabbing took place as a planned venture, designed to extract marijuana from the victim. It occurred in circumstances involving a violent invasion of the victim's home by a man armed with a large knife. On any view it is a serious example of offences of this type. The offender was intoxicated at the time of the offence. There is nothing in my view that diminishes the objective gravity of the offence." 6The applicant asserts the judge erred by assessing the offence to be "within the mid-range of objective gravity" noting that "the mid-range is said not to be any narrow band." The judge said "It seems to me that having found it is in the mid-range of objective seriousness the only reason to depart from the standard non-parole period would be a finding of special circumstances. I propose to find special circumstances." 7The argument advanced by the applicant is that the judge departed from the standard non-parole period only to the limited extent necessary to give effect to the finding of special circumstances. It is pointed out that the sentencing occurred prior to the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 and the law applied by the judge was according to the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. 8In Muldrock v The Queen at [25] the Court said: "The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness." 9To this extent then what the sentencing judge did in assessing sentence was not required of him although what he did was in accord with authority binding on him at the time. 10On the other hand the sentencing judge was still required to have regard to the standard non-parole period as well as the maximum penalty when imposing sentence. In Muldrock (supra) at [27] the Court said: "Section 54B(2) and (3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period." 11The decision of the High Court in Muldrock (supra) does not mean that a sentencing judge should not assess the seriousness of the offence in the way judges have always done that - Zreika v R [2012] NSWCCA 44, R v Koloamatangi [2011] NSWCCA 288, Ayshow v R [2011] NSWCCA 240. In a case where there is a standard non-parole period that includes by reference to a notional case where the seriousness of the offence is mid-range. 12The Crown concedes that the approach he adopted was not in accord with the current law. This Court must now make its own assessment of how the offending is to be properly characterised - Carroll v The Queen [2009] HCA 13; 254 CLR 259. 13Even if the sentencing judge embarked on an unnecessary process in assessing sentence the question for this Court is whether the sentence imposed is inappropriate and whether a less severe sentence is warranted in law and should have been passed in accordance with s6(3) Criminal Appeal Act 1912. 14The offence itself was undoubtedly serious in that it was planned to take a knife to confront the victim. It is also clear there was a deliberate stabbing of the victim to his body in a position where considerable damage could have been done. On the other hand the wounding was not extensive and was dealt with by glue to close the wound. There is no suggestion of ongoing problems from the wound. 15The sentencing judge noted the antecedents of the applicant included an assault in 1983, a malicious wounding in 1992, an assault occasioning actual bodily harm in 1992, a possess shortened firearm in 1994 and a common assault in 2000. It was noted there was a significant gap between the common assault in 2000 and the commission of these offences in 2009. 16It was noted he was adopted as an infant and raised by his adoptive parents. He rebelled at the age of 12 when he discovered he was adopted. He was diagnosed with ADHD and medicated. At the age of 14 he was evicted from the family home and lived in a halfway house. He was in a relationship between 1981 and 1998 and has four children aged 20, 17, 13 and 10. For three weeks prior to the offence he was living with friends because of an apprehended violence order taken out against him by a neighbour. He has been on a disability support pension since 1996. The Probation report indicates he has been a cannabis user since the age of 16 and he has also used heroin and amphetamines. His consumption of alcohol is described as problematic and contributed to the commission of this offence. The sentencing judge found he had guarded prospects of rehabilitation. 17Bearing in mind the objective and subjective factors as found by the judge and with due regard to the maximum penalty and the standard non-parole period, in my view the appropriate course to take is to impose a sentence less than that imposed in the first instance, maintaining a finding of special circumstances. 18I propose the following orders: (1)Grant leave to appeal. (2)Allow the appeal and quash the sentence and non-parole period imposed in the District Court. (3)Impose a sentence of a non-parole period of four years and six months to date from 29 June 2010 to expire 28 December 2014 with a balance of term of two years and six months. 19HALL J: I agree with the orders proposed by Blanch J and for the reasons stated by his Honour. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2012