Anderson v R

Fernando (1992) 76 A Crim R 58 MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93 CASES CITED : R v ALP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v McNaughton [2006] NSWCCA 242; (2006) 163 A Crim R 381 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

PARTIES: Robert John Anderson (Applicant) The Crown

COUNSEL: T Gartelmann (Applicant) P Calvert (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2007/4925

McCLELLAN CJ at CL HISLOP J HOEBEN J

TUESDAY, 9 SEPTEMBER 2008 ANDERSON, Robert John v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty and was convicted of one count of malicious wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 25 years. A standard non-parole period of 7 years is provided by the statute. 2 The applicant was sentenced to imprisonment with a non-parole period of 3 years and 9 months with a balance of term of 3 years and 3 months. The non-parole period commenced on 6 March 2007 which was 3 months before the expiration of an unrelated sentence being served by the applicant. The applicant was on bail pending an appeal against the severity of that other sentence when he committed the present offence.

The facts 3 On 21 October 2005 the applicant was drinking at the Royal Hotel at Wardell. The applicant was with a group of friends. One of his friends approached the victim who was sitting at another table. The applicant's friend struck the victim with a pool cue twice across his face with sufficient force to cause the cue to break. The applicant then grabbed another cue and swung it at the head of the victim causing a 4 cm laceration to the right side of his head. The cue broke on impact. The applicant continued to strike the victim until bystanders intervened to stop the attack. 4 The applicant was initially arraigned on an indictment alleging counts of maliciously inflicting grievous bodily harm with intent and affray. He pleaded not guilty. On 6 March 2007 he was arraigned in respect of a fresh indictment and pleaded guilty to the offence for which he has been sentenced. 5 There was significant evidence before the sentencing judge relating to the applicant's personal circumstances. He was 26 years of age at the time of the offence and 28 years of age at the time of sentence. He has a record of prior convictions including for offences of violence. These consist of a number of convictions for offences of common assault and assault occasioning actual bodily harm. He variously received bonds, suspended sentences and short terms of imprisonment from the Local Court. 6 The applicant is an aboriginal man being the second of five children. Although the family was close and supportive various members have suffered because of significant substance abuse. The applicant had learning difficulties at school but managed to complete Year 10. Since leaving school he has worked as a labourer in farming and with the Community Development and Education Program. 7 The applicant has been in a de facto relationship for about 10 years. The applicant and his partner have two sons aged 4 and 3 years at the time of the sentence proceedings. They resided in premises provided by the Aboriginal Housing Cooperative. Although suffering from significant problems because of his substance abuse the applicant would appear to be a devoted father and stable partner. 8 The applicant's substance abuse is long standing. He has used both alcohol and methylamphetamines to excess. His use of these substances has been greater in times of family stress. At the time of the offence it appears that he had consumed a carton of beer or perhaps more and was still affected by methylamphetamines he had consumed the previous day. The evidence indicates that when affected by alcohol the applicant becomes aggressive and unable to control his violent tendencies. 9 The applicant has been diagnosed with depression, anxiety and has impulsive behaviour characteristics. He has exhibited anti-social character features and has poor anger management. 10 The applicant submitted that the sentencing judge erred in his application of the principles relating to the sentencing for an offence which attracts a standard non-parole period. It was further submitted that his Honour erred when assessing the objective seriousness of the offence. It was submitted that by reason of these errors his Honour allowed the standard non-parole period to inappropriately dominate the exercise of the sentencing discretion. 11 The judge delivered his sentencing remarks ex tempore. As will sometimes be the case they lack an exactness of language compared with remarks made following an opportunity for greater reflection. The remarks must be read as a whole. If error is found it remains for this Court to determine whether the sentencing task has miscarried and another sentence should in law be imposed (s 6(3) Criminal Appeal Act 1912). 12 The sentencing judge considered the facts which had been agreed between the prosecutor and the applicant's counsel. It was accepted that the applicant acted without provocation, although his Honour was in no doubt that something was said by another person on that evening which contributed to the applicant behaving as he did. His Honour was satisfied that by using the billiard cue where a number of people were present and delivering a forceful blow causing injury the offence presented "quite a serious picture." His Honour was mindful that alcohol was a feature of the applicant's life and had been associated with his previous convictions for offences of violence. Apart from the fact that the offence was committed when the applicant was on conditional liberty he did not find any other aggravating feature in s 21A. 13 His Honour expressed uncertainty as to whether mitigating factors, by which I infer his Honour was referring to the matters in s 21A(3) were relevant to determining "where the offence lies in the scale of things". However, his Honour said: "What is beyond argument is that I am required to make some sort of assessment according to the way in which I look at things as to where this offence lies in the scale of such offences, and I have to bear in mind that had this matter been contested, and had there been a conviction, the law now imposes a standard non-parole period of seven years, which means that would have been a full sentence of somewhere in the region of 10 years. And if you are departing from standard non-parole periods you have to explain why you are doing that." 14 His Honour then described the approach which he proposed to take to the application of the standard non-parole period. His approach to the issue was not correct. He identified the fact that the maximum sentence provided by the statute for the relevant offence was imprisonment for 25 years. However, because his Honour believed it would be unusual to impose the maximum penalty he said that it would be inappropriate when assessing "where this (offence) stands in the scale of things … (to scale) it against the maximum." His Honour said "I would perhaps be looking at a potential range of somewhere between 0 and 14 or 15 as realistic sentences, and then assessing where the offence lies within that range." 15 Without indicating how he arrived at the conclusion his Honour determined that had there not been a plea of guilty a sentence conforming with the term of the period provided as the standard non-parole period would have been appropriate. However, because the applicant pleaded guilty and because of his Honour's findings that the applicant had suffered because of his background and upbringing and what his Honour described as "Fernando factors" and good prospects of rehabilitation, his Honour determined to impose a lesser term of imprisonment. 16 His Honour's approach to the application and standard non-parole period was erroneous. The correct approach was discussed in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. The issue was considered in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 and MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93. Kirby J summarised the relevant principles in MLP in the following terms: "As mentioned, the standard non parole period represented "an offence in the middle of the range of objective seriousness" (s54A(2)). The Court is required "to set the standard non parole period" unless it determines that there are reasons for setting a longer or shorter period (s54B(2)). The Court may depart from the standard, but only for reasons which are identified in s21A of the Act (s54B(3)). Section 21A obliges the Court, when fixing a sentence, to have regard to aggravating and mitigating factors (which the section identifies), as well as other objective and subjective factors affecting the relative seriousness of the offence. The Court, by s54B(4), is enjoined to make a record of its reasons for increasing or reducing the standard non parole period, identifying each factor taken into account.

R v Way , in a passage quoted by his Honour, identified the issues which must be addressed in characterising whether the offence was one in the middle range of objective seriousness: (para 118) "(i) the objective seriousness of the offence considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;

(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3), and as incorporated by the general provisions in s21A(1)(c) and by the concluding sentence to s21A(1)."

Simpson J in R v AJP (supra), provided a helpful distillation of the principles emerging from R v Way where she said this: "The following propositions emerge from Way and subsequent cases:

(i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; ...

(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]);

(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]);

(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus , the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86]);

(v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (para [101]);

(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] - [102]);

(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319." The non parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence: s First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna [2004] NSWCCA 43, per Barr J; R v George [2004] NSWCCA 247). s Secondly, should the offence be characterised as being in the mid range of objective seriousness? That task should be approached in the manner suggested by Simpson J (supra), intuitively evaluating the objective seriousness of the offence and looking to those matters in s21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid range. If the offence falls within the mid range, the standard non parole period should apply, subject to the remaining issues. s Thirdly, are there other reasons in the matters identified in s21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s21A(3)(h)) may furnish reasons for departing from the standard non parole period. It should be noted that s21A(1) provides that the matters specifically identified in the subparagraphs of s21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s21A(3), may be taken into account in determining whether there should be a departure from the standard non parole period. s Fourthly, there is the issue of special circumstances. Ordinarily, the non parole period bears a relationship to the term of the sentence defined by s44(2) of the Crimes (Sentencing Procedure) Act 1999, that is, the non parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non parole period that it is reduced below the minimum term which justice requires the offender to serve (Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525).

There is no requirement that these issues be addressed in any particular order ( R v Moffitt (1990) 20 NSWLR 114), although the issues are obviously inter-related such that a decision on one aspect may have implications for another. In addressing these issues, the sentencing Judge should, however, bear in the mind the following advice provided in R v Way : The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect." 17 It would seem that in his approach to sentencing the applicant his Honour has been confused by the fact that the standard non-parole period which is provided for an offence in the middle range of objective seriousness is not numerically in the middle of the range between the maximum prison term and no term of imprisonment at all. By providing a standard non-parole period of 7 years but a maximum penalty of 25 years imprisonment it is apparent that the Legislature had in mind that for offences falling above the middle range the penalty should increase by a greater amount for increasing degrees of seriousness than is the case for offences falling below the middle range. By this structure the Legislature has indicated that the punishment for offences at the higher end of the range of seriousness must be proportionately greater when compared with the maximum penalty than offences falling toward the lower end of the range. 18 Although his Honour has not approached the application of a standard non-parole period in the correct manner, by confining the prospective range of penalty to be considered, if the error has had any impact, it is likely to have been in the applicant's favour. If his Honour had in mind that the maximum penalty likely to be imposed for an offence which it must be assumed his Honour considered to be close to the most serious class of offending is 14 years his Honour has significantly confined the range within which the penalty appropriate for the applicant's offence must be identified. 19 The sentencing judge recognised that the applicant had pleaded guilty. He also indicated that if he determined that the applicant had committed an offence within the middle range of objective seriousness the standard non-parole period would be useful as a guide with the appropriate non-parole period being for a lesser period. As it happens his Honour then proceeded to determine that the offence was properly described as falling at the mid range of seriousness. 20 However, the applicant, in my opinion rightly, complains that his Honour did not indicate how it was he had reached this conclusion. It was submitted that the attack by the applicant upon his victim fell at the lower end of the spectrum of seriousness of injuries for offences of this kind. Although it was acknowledged that the use of a weapon was an aggravating factor it was submitted that it was not like a knife which was inherently dangerous. It was accepted that it was relevant to the sentencing exercise that the applicant had attacked the victim after he had already been injured by another offender. However, it was submitted that the offence was spontaneous, not planned, and motivated by a misguided concern with respect to misconduct by the victim toward a female friend of the applicant. 21 Although his Honour's approach to the application of the standard non-parole period was erroneous I am not persuaded that the sentence imposed was inappropriate. The applicant used the billiard cue to attack his victim after that person had already been attacked by another person. The attack was entirely unjustified and inflicted serious injury. The force of the attack was such that if the blows had landed on the victim in more vulnerable locations they could have led to his death. Although the sentencing judge described the injury inflicted "as not that severe" the victim suffered a full thickness scalp laceration measuring 4 cm in length. The pool cue broke on impact. The applicant committed the offence while on conditional liberty. A relevant mitigating feature was that the offence was not planned but spontaneous. 22 To my mind the offence justified a finding that it fell within the mid range of objective seriousness. However, the applicant pleaded guilty. That plea was entered following negotiations with the Crown and entered on the first day of his trial when an indictment with the relevant count was presented. A discount in the range of 15% was appropriate. 23 As I have related the applicant has experienced difficulties during his life. Although he comes from a supportive family the abuse of alcohol and the use of amphetamines has become a serious problem for him and appear to have contributed to his repeated offending. Notwithstanding the penalties which had previously been imposed upon him the sentence for this offence was required to provide appropriate punishment and a strong measure of both personal and general deterrence. Unprovoked violence in the community is a significant problem. The courts must ensure that members of the community with inclinations to such behaviour understand that if they inflict injuries on others the courts will impose significant punishment. 24 The applicant is of aboriginal heritage. He has been able to complete high school to Year 10. Both his parents have been employed in significant jobs and he has enjoyed the opportunity to participate in normal community and social activities. The factors identified by Wood J (as he then was) in Fernando (1992) 76 A Crim R 58 are not relevant to the sentencing exercise for the applicant. 25 The applicant's history of offending does not entitle him to leniency and requires a sentence which provides adequately for deterrence and the protection of the community (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v McNaughton [2006] NSWCCA 242; (2006) 163 A Crim R 381). 26 For these reasons, although the approach which the sentencing judge took to the standard non-parole period was not correct, I am satisfied that the sentence ultimately imposed was appropriate. The offence was serious, the applicant was on conditional liberty and has a record of similar offending. Although he has difficulties with alcohol and methylamphetamines his family circumstances do not justify any significant amelioration of his sentence. The applicant contends that by imposing a sentence which was in part accumulated (by approximately 9 months) on the sentence which he was already required to serve the overall sentence was excessive. However, given the matters to which I have referred the total sentence the applicant is required to serve is not excessive. The obligation both to punish and provide for specific and general deterrence lead me to conclude that no lesser sentence was required in law. 27 Although I would grant leave to appeal I would dismiss the appeal. 28 HISLOP J: I agree with McClellan CJ at CL. 29 HOEBEN J: I agree with McClellan CJ at CL. **********

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