Arnold v R

Grounds of appeal 15The Applicant relies upon 2 grounds of appeal as follows: 1.The sentencing judge erred in failing to have proper regard to the question of special circumstances. 2. The sentencing judge erred in the conclusion that the first offence was objectively mid-range. 16It is convenient to deal first with ground 2.

Ground 2 - Count 1: mid range of seriousness 17When discussing Count 1 his Honour said this: Section 35 of the Crimes Act covers quite a wide variety of factual circumstances, however the seriousness of an offence under this section is emphasised by the fact that the legislature has set down a standard non parole period. Although I have already noted how the courts are able to deal with such where there have been pleas of guilty which is the situation here. And s 59 of the Crimes Act is an offence which covers a wide variety of offending situations and is an offence which can be dealt with in the Local Court where a jurisdictional limit of two years imprisonment would apply. Whilst recognising that the offences arose out of a continuum of an incident, I must consider each offence separately and then consider the totality. Count one involved deliberately kicking to the body and resulted in serious shoulder injury and loss of teeth. I must find that this places this offence into the mid range of objective seriousness and an appropriate non parole custody should be two years which would be arrived at by considering a term of four years for the offence and allowing for the plea of guilty reducing that to three years and then to a two years non parole term. 18The Applicant submitted that the offence should not have been regarded as objectively mid-range in circumstances where there were no aggravating factors, and the assault was brief giving rise to injury at the lower end of the wide spectrum which is grievous bodily harm. It was submitted that the offence itself was constituted by a push, and between 2 and 4 kicks to the victim whilst on the ground. 19The finding of where this lies on the scale of objective seriousness is essentially one of fact. It is necessary to show by reference to one of the considerations in House v The King (1936) 55 CLR 499 that the finding was not open: R v Johnson [2004] NSWCCA 140 at [36]. 20The Applicant is not able to point to his Honour having taken into account irrelevant considerations or failing to act on relevant considerations, nor that any wrong principle was involved or that the finding was not open on the evidence. The offence consisted not only of the first act in the course of the assault (the push from behind that caused the victim to fall forward into the wall and then onto the floor) but also consisted of the Applicant kicking the victim whist he was on the floor between 2 and 4 times to his upper body and head. His Honour was provided with a photograph of the victim's mouth and face after the assault showing the extent of the damage to his teeth. That photograph formed part of the material before this Court. The extent of the damage to the victim has been described earlier in these reasons. 21Although his Honour described the offence as being within the mid-range of objective seriousness, the sentence imposed (both the head sentence and the non-parole period), after allowance for a full discount for the plea of guilty, suggests that his Honour saw the offence as being on the low side of the mid-range. 22I see no error in the way his Honour categorised the offence which was, on any assessment, vicious and cowardly in that the victim was first attacked from behind and then repeatedly assaulted when lying on the ground. 23I would reject this ground of appeal.

Ground 1 - special circumstances 24In relation to count 1 his Honour varied the statutory ratio so that the non-parole period was about two thirds of the head sentence, and in respect of count 2 he varied the statutory ratio so that it was about 59.3% of the head sentence. With the accumulations his Honour provided in relation to the 3 offences the overall statutory ratio was varied so that the non-parole period amounts to 72% of the head sentence. His Honour did not make reference either to special circumstances or to the variation of the statutory ratio. Although the variation on the total sentence is an insignificant variation to the customary ratio, his Honour did not identify any reasons for the variation. 25Nor can it be discerned from his Honour's remarks that he gave any consideration to the issue of special circumstances notwithstanding the determinations he made concerning non-parole periods and additional terms for each of the counts. Further, although his Honour made reference to a number of the factors identified by the Applicant as justifying the finding of special circumstances, he did so only in the context of looking at aggravating and mitigating factors. 26All of this was despite his Honour having been asked to find special circumstances based on the fact that it would be the first custodial sentence to be served by the Applicant and that, if his Honour was to accumulate the sentences, that was a further factor to be taken into account in coming to a finding of special circumstances. 27The Applicant submits that this was a powerful case for the finding of special circumstances and his Honour did not have any regard to the factors and to the issue of special circumstances at all. 28The Applicant identified the factors as follows: had lived in Cobar all his life and for the decade preceding these offences largely lived with his father (T 9/12/09 p 6) whom he described as one of his best friends. (PSR P 1). at thirty nine years of age he had an insignificant criminal record constituted by the imposition of various fines. Thirteen years previously he had been dealt with for common assault (x2) and fined $400.00 for each offence. Otherwise the entries were irrelevant. the aggression exhibited by the Applicant on this occasion was regarded by one of the victims (Chris Fishburn) as being out of character and a letter in this regard was tendered on the applicant's behalf; Mr Fishburn regarded the applicant, with whom he had been familiar for twenty six years as an "honest, reliable, trustworthy and respectful member of the Cobar community.."; he had good employment prospects having been gainfully employed since he left school at the age of fifteen; he held various positions but for more than a decade he was employed as a diamond driller contracted to various mining companies; the evidence of the applicant's father was that the applicant had been offered an "overseers job" which would see the applicant remunerated in the order of $120,000 p.a. The sentencing judge accepted this evidence. he did not otherwise have a history of problems with alcohol and his father described never knowing him to take a day off work because of alcohol (T9/12/09 p 8 line 25) he had no history of a problem with violence; the offence was committed after the wake of a close friend, the point being that issues of loss and grief were not irrelevant to his uncharacteristic loss of control; the applicant's father described the relationship between the deceased and the applicant as being very close and his death having a marked impact upon his son; similarly the applicant's father described the applicant being very close with the principal victim in the case (Mr Goonery) the relevance of which is that the evidence established that there had been a degree of extra curial punishment that flowed from the family dynamics at play and that the applicant was peculiarly remorseful as a consequence of assaulting his first cousin; in combination he had excellent prospects of rehabilitation; the officer from Probation and Parole did not identify any criminalizing tendencies but considered the applicant an appropriate candidate for anger management counselling and an associated alcohol and other drug assessment. (PSR p 3). The point in respect of this is that the applicant's path to rehabilitation was well suited to prioritising community based supervision. 29The Applicant submitted that the failure of the Sentencing Judge to give consideration to the matter of special circumstances was demonstrative of error: R v Henry [2004] NSWCCA 306 at [24]. 30In Brindley v R (1993) 66 A Crim 204 Hunt CJ at CL (with whom Smart and James JJ agreed) said when discussing the predecessor to s 44(2) Crimes (Sentencing Procedure) Act 1999: Next, it is submitted that the judge appears, from the absence of any reference to them in his remarks on sentence, to have failed to consider whether special circumstances existed warranting a different proportion between the minimum and additional terms than that required by s 5(2) of the Sentencing Act 1989 (NSW). It is a pity that the judge did not expressly refer to this issue in his remarks on sentence. Judges at first instance should by now be aware that the most common submission made in sentencing appeals to this Court relates to s 5(2). As such appeals are inevitably conducted by counsel who did not appear at first instance, that submission is almost always based upon no more than the absence of any reference to the issue in the judge's remarks on sentence. I do suggest that, in order to preclude this Court from drawing incorrect inferences in response to such submissions, sentencing judges should in every case make some reference to s 5(2). 31In Regina v Novakovic [2004] NSWCCA 437 Sully J (with whom Hidden and Howie JJ agreed) said in relation to ground 4 of the grounds of appeal (that the sentencing judge erred in not finding "special circumstances"): [37] As to Ground 4, the learned sentencing Judge was, to say the least, to the point in dealing with the applicant's submission to his Honour that "special circumstances" should be found, and that a shorter than usual non-parole period should be set accordingly. His Honour said simply in his remarks on sentence: "I do not find special circumstances justifying the variation of the normal relationship between the head sentence and the non-parole period". [38] The applicant contends, and I agree, that there were matters, established by credible evidence, and capable of amounting to "special circumstances". The applicant's written submissions summarise those matters thus: "... (T)he applicant was of prior good character, has never before been to prison, was contrite, is in his 50's and has good prospects of rehabilitation." [39] The applicant complains, and in my opinion justifiably, that his Honour, if intending to make either a specific finding that there were no circumstances capable of amounting in law to special circumstances; or that there were such circumstances available in principle, but that his Honour was not prepared to find them in fact; was obliged to give some explanation, however brief, of why he was not going to make such a finding in fact. [40] In my opinion there is some proper scope for some modest reduction in an otherwise appropriate non-parole period by reason of the aforesaid special circumstances. To that extent I would uphold Ground 4. (emphasis in original) 32Notwithstanding the adjustment of the ratio for the individual offences in any given case, it is appropriate for the Court to look to the ratio when the sentences are accumulated: Jackson v R [2010] NSWCCA 162 at [30]; R v LWP [2003] NSWCCA 215 at [17]-[22]. 33Because his Honour varied the statutory ratio in relation to each of counts 1 and 2, (and it may be inferred therefrom that he had special circumstances in mind), when he accumulated the sentences the variation was almost entirely lost. It seems unlikely that his Honour did not have special circumstances in mind because of the variation he made for the individual offences. His failure, however, to make reference to special circumstances was, nevertheless, an error. 34Not only did his Honour make no reference to the matter of special circumstances, but there were a number of matters to be found in the factors identified in para [28] above, which were capable of amounting to special circumstances. His criminal record was relatively short, with the last offence being a relatively minor drug possession conviction some 8 years earlier. It was his first time in prison, he had been continually employed since leaving school, and other subjective matters referred to by the Sentencing Judge as well as the pre-sentence report suggested he had good prospects of rehabilitation. The Judge appeared to accept that he was remorseful for what had happened. 35In my opinion, the failure of the Sentencing Judge to refer to special circumstances, or to consider the effect of the matters I have mentioned on the sentence, amount to error. I would uphold ground 1. 36The remaining issue is whether any other sentence should be imposed. 37Because there were a number of indications to justify a finding of special circumstances (first time in custody, good prospects of rehabilitation particularly shown by continuous employment with good family support and indeed support from one of the victims) and because his Honour clearly had in mind varying the statutory ratio for counts 1 and 2, it would be appropriate to vary the non-parole period that resulted from the accumulation of the sentences. 38Although 3 offences were committed they all arose from the same incident. The Applicant and the victims were all well known to each other and had been drinking together so that general deterrence is of less significance than where strangers were assaulted in or near licensed premises. 39In my opinion, it would be appropriate to vary the non-parole period in respect of Count 1 so that it expires on 14 August 2011 and to vary the commencement date of the sentence in respect of count 2 so that it commences on 15 April 2010 and expires on 14 August 2011. The total effective sentence would therefore be 3 years and 3 months with a non-parole period of 1 year and 10 months expiring 14 August 2011, and on the sentence for Count 2 I would order his release to parole on 14 August 2011.

Conclusion 40I propose the following orders: (1) Grant leave to appeal. (2) Appeal allowed. (3) Quash the sentences imposed by Woods ADCJ in respect of counts 1 and 2. (4) In lieu sentence the Defendant as follows: (a) On count 1 imprisonment for 3 years commencing 15 October 2009 with a non-parole period of 1 year and 10 months to expire on 14 August 2011; (b) On count 2 imprisonment for 2 years and 3 months commencing 15 April 2010 with a non-parole period of 1 year and 4 months expiring on 14 August 2011, and order his release to parole on 14 August 2011.

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