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[2012] NSWCCA 194
Court of Criminal Appeal (NSW)
2012-06-12
McClellan CJ, Johnson J, Hammerschlag J, Mr P, Barr AJ
Original judgment source is linked above.
A 64; 207 CLR 584 Lowndes v R [1999] HCA 29; 195 CLR 665 Category: Principal judgment Parties: Reece Leonard Beldon (Applicant) Regina (Respondent) Representation: Counsel: Mr P Hamill SC (Applicant) Ms MM Cinque (Respondent) Solicitors: Nyman Gibson Stewart Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2008/69063 Publication restriction: --- Decision under appeal Citation: R v Beldon [2011] NSWSC 112 Date of Decision: 2011-03-04 00:00:00 Before: Barr AJ File Number(s): 2008/69063
Judgment 1McCLELLAN CJ at CL: I agree with Johnson J. 2JOHNSON J: The Applicant, Reece Leonard Beldon, seeks leave to appeal against sentence imposed on 4 March 2011 in the Wollongong Supreme Court upon a charge of murder. 3Following a plea of guilty, the Applicant was sentenced by Barr AJ to imprisonment comprising a non-parole period of 16 years to commence on 28 November 2008 and to expire on 27 November 2024 with a balance of term of eight years expiring on 27 November 2032. The maximum penalty for murder is imprisonment for life and a standard non-parole period of 20 years applies.
4The Applicant relies upon the following grounds of appeal: (a) Ground 1 - his Honour erred in his approach to the Applicant's mental illness and the protection of the public. (b) Ground 2 - his Honour erred in his approach to the standard non-parole period. (c) Ground 3 - a different less severe sentence is warranted and ought to have been imposed.
5An Agreed Statement of Facts was tendered on sentence. Barr AJ described the offence in the following way in his remarks on sentence (R v Beldon [2011] NSWSC 112 at [2]-[5]): "2 The offender lived in a unit on the second storey of a three storey building at Mangerton. Darren Vickery was staying with him. The deceased, Stephen Solomon, was staying in a unit directly above the offender's unit. On the morning of 27 November 2008 the offender and Vickery went to the unit where the deceased was staying and spoke to him. The three left together and the offender arranged for the deceased to see a doctor at Fairy Meadow. The deceased saw the doctor and obtained a prescription for Oxycontin and Valium. He went to a pharmacy and he or the offender telephoned Vickery, who went to the pharmacy and paid for the drugs. All three returned to the offender's unit where they injected Oxycontin and took Valium. That was at some time after 5:00pm. They repeated the procedure later in the evening. 3 During the night the deceased repeatedly tried to telephone his de facto wife, who resided in Queensland. The last recorded call was made at 1:55am on 28 November. At about that time the occupant of another unit saw him outside the building using a telephone. The deceased returned to the offender's unit and there was an argument between him and the offender. He accused the offender of stealing the remainder of the drugs and demanded that the offender give him some of his own prescription Oxycontin. The offender took a kitchen knife approximately 30cm long and slashed the deceased's right cheek, leaving a deep incision. He stabbed the deceased in the left upper back. The deceased took a few steps and fell to the floor. 4 Vickery telephoned the emergency number at 2:55am and asked for an ambulance. Ambulance officers attended. The deceased was lying on his back where he had fallen. He was dead. Police arrived at about 3:10am. The offender and Vickery were present. Police officers spoke to the offender. He had dried blood on his hands, feet, and clothes. 5 A pathologist examined the deceased's body and concluded that the cause of death was a stab wound to the back of the torso. The wound track was from rear to front and slightly left to right. There was an associated underlying injury to the aorta and both the left chest and abdominal cavities were involved. The wound track was 16 to 17cm long." 6The sentencing Judge accepted that the Applicant intended to inflict really serious bodily injury upon the deceased and that there was not intent to kill (ROS [15]). 7The Applicant was arrested on 28 November 2008 and has been in continuous custody since then.
Proceedings Against the Applicant 8The Applicant was charged with the murder of the deceased. Mr Vickery was charged as an accessory after the fact to murder. Both were committed to this Court for trial. On 4 December 2009, the Applicant pleaded not guilty and a joint trial was fixed to begin on 6 April 2010. On that day, an order was made for separate trials. Mr Vickery pleaded guilty and the Applicant's trial was vacated. 9A new trial was fixed to begin on 11 October 2010. The Crown was ready to proceed with the Applicant's trial on 11 October 2010, but the defence was not, and the trial was again vacated. 10A new trial date was fixed, beginning on 21 February 2011 with a three-week estimate. At the commencement of his trial on 22 February 2011, the Applicant pleaded guilty. 11The Applicant's very late plea of guilty attracted a discount "at the bottom of the range normally allowed" (ROS [7]), being a 10% discount.
12The Applicant was 34 years' old at the time of the offence and 36 years' old at the time of sentence. 13The Applicant had a significant criminal history, involving offences of violence and breaches of conditional liberty. His criminal history commenced in 1989. Confining attention to offences of violence and breaches of conditional liberty, the Applicant's record included the following: Date and Court Offence Sentence 16 July 1994 1. Robbery On each charge, fixed terms of imprisonment for three months
14It will be observed that the present offence of murder was committed on 28 November 2008, some nine months after the expiration on 1 February 2008 of the Applicant's sentence for the malicious wounding offence. 15The Applicant did not give evidence at the sentencing hearing. A report of Dr Jonathon Adams, forensic psychiatrist, dated 4 February 2011 was tendered, together with a report dated 9 June 2004 of Dr Barbara Sinclair, senior psychiatry registrar with the Corrections Health Service (this report apparently relating to the Applicant's sentence on 16 June 2004 for various offences of violence). 16Barr AJ recounted the Applicant's deprived upbringing, and his long history of drug use and mental instability, in the following way (at ROS [16]-[23]): "[16] The offender was 34 years old at the time of the offence and is now 36 years old. He never met his mother or father and was brought up by an aunt. There may be a history of mental illness in the family. He witnessed a lot of violence during his formative years. He was raped when he was 11 years old. He left school in year 8 and has done various jobs. He has had a number of sexual relationships, the most recent one of eight years' duration. He has a son. [17] The offender has a long history of drug use, mental instability and offending. A report of Dr Jonathon Adams, forensic psychiatrist, was tendered. He interviewed the offender on 19 January 2011. The offender described to Dr Adams his contact with mental health services and symptoms he had experienced since his early 20s. He gave accounts of hearing voices, some scary, bad and dark, others beautiful, according to his mood. He described a man or group he thought were out to get him. He described odd smells and tastes, paranoia over a long period of years and referential thinking towards the television. He thought at one time that he was an alien female. He experienced sweating, tremor and anxious thoughts. He gave a history of mood instability since childhood, impaired ability to control his mood and impulsiveness. He said that he had made five suicide attempts in various ways. He had harmed himself. [18] Describing his mental state during the time leading up to his arrest, the offender said that he was taking prescribed Oxycontin and adding more, illicitly obtained, as well as five bongs of cannabis per day. He was unsure about other drugs. He could not think straight. He was hearing voices and experiencing other symptoms of mental illness that he could not clearly describe. He said that his friends had told him that he was paranoid, though he himself seemed unable to remember. [19] Dr Adams had seen a videotape of the offender's interview with investigating police officers and asked him why he had denied being intoxicated at the time. The offender replied that he had done so on Vickery's advice so that the Oxycontin prescription would not be terminated. He said that he was hearing voices during the police interview, and when Dr Adams said that that was not how he appeared, he said that he was trying to keep a straight face. [20] Throughout the greater part of his interview with Dr Adams the offender maintained limited eye contract. He was slightly drowsy at times. He was not hostile. During the last ten minutes of the interview he became suspicious and asked whether Dr Adams was involved in a recent transfer of the offender from one gaol to another. When Dr Adams asked why, he said that 'James' had told him. He would not enlarge on that statement. He did not appear to Dr Adams to be responding to external stimuli. His speech seemed to lack spontaneity. His voice was low and sometimes slurred. There was no evidence of formal thought disorder. The offender said that he believed that psychotic medication and the assistance of the mental health services had been beneficial. [21] Dr Adams reviewed reports of other psychiatrists who had had the care of the offender, namely Dr Sinclair and Professor Greenberg. Both had described psychotic symptoms and disorder, though in different particularities. Dr Adams also reviewed the offender's Justice Health medical records. [22] The offender's first contact with the mental health services was when he was admitted to a psychiatric hospital at Shellharbour in his 20s. He was admitted to that hospital twice more, but had very little contact with the mental health services between admissions. He was prescribed Olanzapine and Quetiapine, antipsychotics, and antidepressants. When not in hospital he generally failed to comply with medical advice to take drugs. [23] The offender has used illegal drugs over most of his life, beginning at age 6 or 7 years with cannabis. He progressed to hallucinogenic drugs and began using heroin when he was 25 years old. He consumed alcohol as well. In 2006 his general practitioner placed him on a gradually reducing dose of Oxycontin. So he ended his use of heroin."
Some Other Findings of the Sentencing Judge Relevant to the Grounds of Appeal
17Barr AJ made the following findings concerning the Applicant's state of mind at the time of the offence (at ROS [10]-[14]): "[10] The evidence shows that both the offender and the deceased were affected by the drugs they had consumed. Samples taken from the deceased's body show a level of Oxycodone sufficient to cause lethargy and mental clouding. There is no such evidence about the offender, but I am prepared to accept that he and the deceased probably consumed drugs at about the same rate during the hours immediately before the murder and that as a result the offender's thinking was probably clouded and his judgment and self-control affected. [11] It was submitted that in the circumstances the deceased's accusation that the offender had stolen his drugs and should make restitution was akin to provocation and mitigated the offender's criminality. [12] I can understand that a person falsely accused of theft might, out of indignation or outrage, act as he might not otherwise act, especially with clouded judgment and loss of self-control. But the evidence does not establish that the deceased's accusation was false. I do not think that the offender could point to his overreaction to a just accusation as mitigating his criminality. On the state of the evidence, I am unable to accept the submission. [13] In seizing the knife and cutting and stabbing the deceased, the offender acted in response to the words that the deceased had spoken and in the heat of the moment. There was no premeditation. [14] I do not regard the fact that the offender's acts resulted from the effect of drugs on his judgment and self control as mitigating his criminality. He voluntarily took the drugs and must accept the consequences." 18The sentencing Judge noted the submission by senior counsel for the Applicant at first instance, that the need to impose a sentence having a generally deterrent effect ought be tempered by the Applicant's underlying mental condition. Having described that condition by reference to the report of Dr Adams, Barr AJ continued, with the passage (at ROS [27]) being challenged on appeal in this Court: "[26] It seems to me that the offender's troublesome repeated behavioural problems result when, released from supervision, he ceases taking prescribed medicine and symptoms of mental illness reappear. Whether or how his further use of illegal drugs exacerbates his symptoms may not matter. The pattern seems well established." [27] While I am prepared to accept that the offender's mental illness may slightly lessen the need for a deterrent sentence, it seems to me that the same consideration gives rise to a greater need to impose a sentence that protects the public from the prospect of further offences, such has been the readiness of the offender continually to re-offend. To my mind this latter consideration outweighs the former." 19Barr AJ found that the Applicant had a "slight prospect of rehabilitation" (at ROS [28]): "[28] It was submitted that notwithstanding his serious history of offending, the offender had prospects of rehabilitation. Mr Hoyle pointed to records showing that the rates at which the offender had been punished for offences committed in custody had been lower during his latest incarceration than formerly. The record does show that over the years the offender has been dealt with many times for offences against gaol discipline and that he committed no infringement between 3 August 2009 and 26 April 2010. It seems possible that the offender may have begun to change his ways and that he may in the future begin to take responsibility for his actions. I note his statement to Dr Adams that he wishes to follow the medical advice he is offered, though one would not confidently predict success. The sentence I am obliged to impose is bound to incorporate a long non-parole period, and that will mean that by the time he is considered for parole the offender will be of a mature age and will have behind him a continuous period of supervision without, it is to be hoped, access to the drugs which have played such an important part of his life. I think that there is a slight prospect of rehabilitation." 20His Honour found "special circumstances" (at ROS [29]): "It was submitted that the Court ought to find special circumstances justifying an increase in the parole period of the sentence and a corresponding reduction in the non-parole period. Looking at the offender's episodes of crime, imprisonment, parole, freedom and return to crime, it is easy to justify a much longer period of parole than in a normal case of this kind. However, the Court cannot for that reason increase a sentence beyond that which the offence itself warrants. Neither can the court impose a non-parole period lower than that which the case objectively calls for. As a result, the court's discretion is limited, though I intend to exercise it in favour of the offender." 21The sentencing Judge addressed the standard non-parole period, in a manner which is also challenged on appeal (at ROS [30]-[31]): "[30] The standard non-parole period of 20 years for murder is to be imposed for an offence that falls in the middle of the range of objective seriousness of such offences. In my opinion this offence falls below the middle of the range because the offence was carried out in the heat of the moment, because the offender intended to do really serious bodily injury rather than to kill and because he has pleaded guilty. [31] Having in mind the standard non-parole period and taking into account the matters I have mentioned, I think that the non-parole period should be 16 years. Taking into account the matters I have mentioned that justify a bias towards parole, I select a period of 8 years of eligibility for parole."
Ground 1 - His Honour Erred in his Approach to the Applicant's Mental Illness and the Protection of the Public
Submissions of the Parties 22Mr Hamill SC, for the Applicant (who did not appear at first instance), challenged the approach of the sentencing Judge at ROS [26]-[29] (see [18]-[20] above) in support of this ground of appeal. 23It was submitted that, from his Honour's remarks in relation to general deterrence (at ROS [27]), it was accepted that the Applicant had a long-standing and serious psychiatric illness related to a deprived and abusive childhood, and the Applicant's involvement in illegal drugs at an extremely young age. 24Mr Hamill SC submitted that the Applicant's psychiatric condition was relevant to the sentencing exercise in a number of ways. Despite this, he submitted that the only way in which the sentencing Judge had taken the matter into account was by accepting that general deterrence may be less important and by, in effect, disregarding that factor on the basis that it was outweighed by the need to protect the public from future offending. 25Given the length of the sentence to be imposed and the other matters that led the sentencing Judge to conclude that the Applicant had some (albeit slight) prospects of rehabilitation, it was submitted that it was erroneous to diminish or offset the important finding in relation to general deterrence. 26Further, Mr Hamill SC submitted that the sentencing Judge did not refer to the impact of the Applicant's psychiatric condition with respect to the Applicant's moral culpability, to personal deterrence and the question whether a prison sentence would weigh more heavily upon him. 27It was submitted that the effective finding of dangerousness, which led to his Honour's conclusion of the importance of protection of the public, disclosed error because of the impossibility of assessing future dangerousness in circumstances where a very lengthy minimum term was to be imposed: Bugmy v The Queen [1990] HCA 18; 169 CLR 525 at 537. 28The Crown submitted that the findings made by the sentencing Judge were open in the circumstances of the case. It was stressed that it was for the Applicant to establish, on the balance of probabilities, that he was suffering from a mental disorder at the relevant time and that it should (or should not) be taken into account in a particular way. 29The Crown observed that senior counsel appearing for the Applicant at first instance had conceded that it could not be demonstrated that there was a clear connection between the Applicant's mental state and the commission of the offence, although he submitted that it remained open to the Court to have regard to the Applicant's mental condition in determining whether he was a suitable vehicle for imposing "a deterrent aspect or a full deterrent aspect on the sentence" (T14, 25 February 2011). 30It was observed as well that senior counsel at first instance did not submit that a custodial sentence might weigh more heavily on the Applicant because of his mental condition 31The Crown submitted that it was open to his Honour to approach the sentencing of the Applicant in this way, given the different ways in which an offender's mental condition may bear upon sentence, at times in a manner unfavourable to the offender. Decision 32It is for the Applicant to demonstrate error in the approach taken by the sentencing Judge in the manner alleged in the first ground of appeal. 33Where it is said that an offender suffers from a mental condition or disorder, this may bear upon the question of sentence in a number of different ways, depending upon the circumstances of the case. As Gleeson CJ observed in R v Engert (1995) 84 A Crim R 67 at 69, it is erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances such as a mental disorder. 34Court decisions in this area have identified a number of ways in which the presence of a mental condition or disorder may bear upon the question of sentence. A helpful summary of these factors appears in the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]: "Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40]-[48]; Lauritsen v R [2000] WASCA 203 ; (2000) 114 A Crim R 333 at [43]-[51]; R v Harb [2001] NSWCCA 249 at [35]-[45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33]-[36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: · Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry at [28]. · It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28]. · It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. · It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. · Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23]-[24]." 35In the present case, most experienced senior counsel appearing for the Applicant on sentence in the Supreme Court expressly disavowed the first factor and made no submission with respect to the third factor identified above. This is significant when findings are challenged on appeal to this Court. In Zreika v R [2012] NSWCCA 44, with the concurrence of McClellan CJ at CL, I said at [79]-[81]: "79 This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. 80 There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. ... 81 The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13], [18]; Bayram v R [2012] VSCA 6 at [28]-[29]." 36The approach reflected in Zreika v R at [80]-[81] has been emphasised and applied by this Court, in circumstances where reliance was sought to be placed on appeal upon aspects of an offender's mental disorder which had been expressly eschewed by counsel at first instance: BT v R [2012] NSWCCA 128 at [20]-[26]. 37The sentencing Judge made a finding (at ROS [10]) that the Applicant had consumed drugs before the murder and that, as a result, "his thinking was probably clouded and his judgment and self-control affected". This aspect did not assist the Applicant on sentence, being the product of self-induced intoxication. 38The Applicant did not give evidence at the sentencing hearing. Evidence which bore upon his mental condition, and its relevance to sentence, was based upon the report of Dr Adams, and the earlier report of Dr Sinclair relating to a different offence. 39Of course, the reports were to be considered in conjunction with other evidence concerning the Applicant's history of violent crimes, against the background of his age and his significantly chequered history of recidivism upon release from custody. Considerations of this type clearly lay behind the sentencing Judge's approach (at ROS [26]-[29]) (see [18]-[20] above). 40The approach adopted by the experienced senior counsel who appeared for the Applicant at first instance was understandable. This was very much a case of the type referred to in R v Engert and R v Wright (1997) 93 A Crim R 48, where an offender's mental condition could operate in a manner favourable and unfavourable to him. 41As senior counsel for the Applicant before Barr AJ conceded, the evidence did not support a submission that there was a causal connection between the Applicant's mental health and the offence. Nor was there evidence to support a submission that a custodial sentence would weigh more heavily on the Applicant because of his mental condition. No such submission was advanced at first instance. 42It should be observed, as well, that the Applicant's "well established pattern" of ceasing to take medication upon release combined with illicit drug use (ROS [26]) did not assist him on the issue of specific deterrence: R v Wright at 52; R v Henry [2007] NSWCCA 90 at [28]-[33]; Clay v R [2007] NSWCCA 106 at [20]-[28]. 43It is appropriate now to turn to the Applicant's submission based upon observations made in Bugmy v the Queen. 44Mr Hamill SC submitted that the sentencing Judge fell into error in his approach to protection of the community (at ROS [27]) as a factor on sentence of the Applicant. The focus of the submission was that, in the context of a sentencing decision made in 2011, where a lengthy sentence was to be imposed, no reliable assessment could be made concerning the dangerousness of the Applicant in many years' time. Counsel pointed to the following passage from the judgment of Dawson, Toohey and Gaudron JJ in Bugmy v The Queen at 537: "Although Brooking J clearly gave detailed consideration to the task he had to perform, it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term. The risk that the applicant might reoffend was of course a relevant factor in fixing a minimum term. But a minimum term of eighteen years and six months is of such length as to take the prospects of reoffending in this case beyond even speculation. The applicant was twenty-seven years of age when the minimum term was fixed. He will be over forty-five before the likelihood that he will reoffend will become a matter for assessment. It is not possible to say now what the likelihood will be then. Equally, the applicant's behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead. Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance." 45It is important to keep in mind that the sentencing Judge made the finding presently under challenge in the context of the relevance of the Applicant's mental condition to sentence. His Honour was prepared to accept (at ROS [27]) that the Applicant's mental disorder "may slightly lessen the need for a deterrent sentence", but went on to find that the Applicant's mental disorder gave rise "to a greater need to impose a sentence that protects the public from the prospect of further offences, such has been the readiness of the offender continually to re-offend", with the latter factor outweighing the former. 46It is well recognised that an offender's mental condition can operate in different directions on sentence, as Gleeson CJ emphasised in R v Engert. 47A fair reading of his Honour's remarks on sentence indicates that this was not a predominant factor on sentence. The slight lessening of a factor favourable to the Applicant was outweighed by a factor unfavourable to the Applicant. This was not a finding that a type of preventative detention was appropriate. As his Honour's observations during submissions (T18-19, 25 February 2011) and his remarks on sentence (ROS [29]) make clear, he was alive to the fact that a sentence disproportionate to the objective gravity of the crime could not be imposed. 48The protection of the community from an offender is one of the purposes of sentencing: s.3A(c) Crimes (Sentencing Procedure) Act 1999. Of course, this is but one of the purposes of sentencing which include, amongst other things, ensuring that the offender is adequately punished for the offence, deterring the offender and other persons from committing similar offences and the promotion of rehabilitation of the offender: s.3A(a), (b) and (d) Crimes (Sentencing Procedure) Act 1999. 49The purposes stated in s.3A are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law: Veen v The Queen (No. 2) [1988] HCA 14; 164 CLR 465 at 476-477; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 129 [20]. 50Although it may be said that the longer the minimum term under consideration, the greater the difficulty in making a satisfactory prediction about the future progress of an offender and the danger which the offender would present to the community, it remains the responsibility of a sentencing Judge to take account of the need to protect the community, and to make an assessment of the material before the Court, including an assessment of the offender's prospects of rehabilitation: Bugmy v The Queen at 532 (Mason CJ and McHugh J). 51In Fardon v Attorney-General for the State of Queensland [2004] HCA 46; 223 CLR 575, Gleeson CJ observed at 589 [11]: "As was pointed out in Engert [(1995) 84 A Crim R 67 at 68], people suffering from mental disorders frequently come into collision with the criminal justice system, and discretionary sentencing decisions must take into account a number of sometimes competing considerations, including the protection of society. The law is a normative science, and many of its rules and principles are based upon assumptions about volition that would not necessarily be accepted as accurate by psychiatrists." 52In the same case, Gleeson CJ noted at 589-590 [12]: "The way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is an almost intractable problem. No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release." 53The courts have recognised the imprecise nature of the process which involves an assessment of an offender's risk of reoffending, in particular where a lengthy sentence is to be imposed so that there is no prospect of the offender being released into the community at an early time. It has been emphasised that it is the risk of reoffending which is under consideration: R v SLD [2003] NSWCCA 310; 58 NSWLR 589 (special leave to appeal refused: SLD v The Queen [2004] HCA Trans 501); R v Johnson [2005] NSWCCA 186 at [13]; Knight v R [2006] NSWCCA 292; 164 A Crim R 126 at 141 [30]; Adanguidi v R [2006] NSWCCA 404; 167 A Crim R 295 at 309 [55]; R v Willmott [2012] NSWSC 824 at [30]. 54This is not a case where an assessment of future dangerousness was made by the sentencing Judge solely or principally by reference to the circumstances of the crime itself: cf Ng v R [2011] NSWCCA 227 at [59]-[73]. 55The Applicant stood to be sentenced for the crime of murder. A substantial sentence of imprisonment was inevitable, both by way of minimum term and full term. 56The statement in Bugmy v The Queen relied upon by the Applicant does not lead to the position where a sentencing Judge ought be reluctant to attempt an assessment of the risk of an offender reoffending at a future time. As the authorities have emphasised, it remains part of the responsibility of a sentencing Judge to have regard to this factor on sentence, although there is, of necessity, a significant element of imprecision to it. 57The Applicant was not a young offender. Nor was he a person with no prior involvement with the criminal justice system, who had committed a very serious crime (as in Ng v R). 58The Applicant was 34 years of age at the time of the offence and 36 years' old at the time of sentence. His criminal history revealed the commission of serious offences of violence over many years, with a range of sentencing options being utilised. There were breaches of conditional liberty, exemplified by breach of recognisance in 2000 and revocation of parole in 2004 and 2005. 59The Applicant's most serious crimes of violence were those most recently committed by him - malicious wounding in 2006 and murder in 2008. 60There was little in the psychiatric reports before the sentencing Judge which assisted the Applicant on the question of recidivism. The evidence pointed to an entrenched pattern of substance use and abuse. 61The sentencing Judge concluded that the Applicant had a "slight prospect of rehabilitation" (at ROS [28]). 62I detect no error in principle in his Honour's approach to sentence. An assessment concerning the Applicant's prospect of recidivism was a necessary part of the sentencing process. By March 2011, the Applicant had demonstrated an entrenched pattern of recidivism involving escalating crimes of violence, culminating in murder, the most serious crime of violence in our law. 63The assessment undertaken by the sentencing Judge involved consideration of what the Applicant had done in the past over a number of years, which was capable of shedding significant light upon his prospects for the future, even many years hence. 64As mentioned earlier, the sentencing Judge was considering this issue in the limited context of the relevance of the Applicant's mental condition to sentence. It was open to his Honour to form the view that the Applicant's mental condition "may slightly lessen the need for a deterrent sentence" but, at the same time, to conclude that the protection of the community given the Applicant's risk of reoffending, outweighed the favourable use of his mental condition on the issue of deterrence. 65In due course, his Honour fixed a head sentence with a non-parole period significantly less than the statutory ratio under s.44 Crimes (Sentencing Procedure) Act 1999. The aspects arising from the Applicant's mental condition contributed to the fixing of a non-parole period which allowed a significant opportunity to the Applicant by way of release on parole in the future. 66His Honour's approach reflects the process of instinctive synthesis to be undertaken on sentence, where the sentencing Judge identifies all the factors that are relevant to the sentence and then makes a value judgment as to the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 131-132 [26]. 67It has not been demonstrated that the process undertaken by the sentencing Judge, or the sentencing outcome itself, indicates that a disproportionate sentence was imposed because of the conclusion reached with respect to the Applicant's risk of recidivism. 68It was open to the sentencing Judge, in the exercise of discretion, to approach the issue of the Applicant's mental condition in the manner revealed in the remarks on sentence. No error has been demonstrated in this respect. 69I would reject the first ground of appeal.
Ground 2 - Suggested Error in the Sentencing Judge's Approach to the Standard Non-Parole Period
Submissions of the Parties 70Mr Hamill SC submitted that error was demonstrated in the use of the standard non-parole period by the sentencing Judge at ROS [30]-[31] (see [21] above). It was submitted that this approach infringed what the High Court of Australia later identified as the correct approach on sentence for a standard non-parole offence in Muldrock v The Queen. Counsel submitted that an impermissible two-stage approach was adopted on sentence with the standard non-parole period of 20 years being treated, in effect, as a starting point. 71The Crown submitted that the sentencing Judge had not adopted a two-stage or two-tiered process of sentencing and that the finding that the Applicant's offence fell "below the middle of the range" was not erroneous. Determination 72In Aldous v R [2012] NSWCCA 153, Davies J (Allsop P and Latham J agreeing) said at [31]: "This is another in an increasingly long line of cases where sentences imposed prior to the High Court's decision in Muldrock are challenged as falling foul of what was said in that judgment. Some of the cases are collected in Zreika v R [2012] NSWCCA 44 at [36] and see also this Court's comments in Butler v R [2012] NSWCCA 140 at [26]. As Johnson J said in Zreika at [43], it is necessary to read fairly the entirety of a Sentencing Judge's Remarks to see how the standard non-parole period has been dealt with. As in Zreika the Sentencing Judge in the present case determined that the standard non-parole period was only to operate as a benchmark or guidepost in the exercise of her sentencing discretion. It cannot be said that it has been used as a starting point when her Remarks are fairly considered. Her use of the words 'the consequence' do not lead to the result that it was the starting point. Her approach of using the standard non-parole period as a benchmark or guidepost is consistent with the judgment of the High Court in Muldrock: Zreika at [43]." 73The present appeal may be added to the "long line of cases" mentioned by Davies J in Aldous v R. 74It is necessary to fairly read the relevant part of his Honour's remarks on sentence. 75In addition, it is appropriate to refer to the submissions advanced at first instance by the most-experienced senior counsel then appearing for the Applicant. It was there submitted for the Applicant that the standard non-parole period constituted a "sign post" or an "indicator" and that the Applicant's offence was "below mid range seriousness" (T14.39, 25 February 2011). 76The sentencing Judge has adopted the defence submission advanced on sentence in the assessment of the offence as "below the middle of the range". 77Although reference to the Applicant's plea of guilty in the context of an assessment of objective seriousness (at the end of ROS [30]) may be inapt, this ought be taken as recognition of the then applicable approach to the standard non-parole period following a plea of guilty: R v Way [2004] NSWCCA 131; 60 NSWLR 168. 78It has not been demonstrated that his Honour used the standard non-parole period as a starting point, nor that a two-staged approach to sentencing was applied. His Honour considered the objective gravity of the Applicant's offence as part of the process of instinctive synthesis leading to the sentence imposed: Zreika v R at [46]. 79I am not persuaded that error has been demonstrated in his Honour's approach to the standard non-parole period in this case. Even if error had been demonstrated (and it has not), the intervention of this Court is not warranted. 80I would reject this ground of appeal.
Ground 3 - Claim that a Different Less Severe Sentence is Warranted and Ought to have Been Imposed 81This ground is expressed in the well-recognised terms of a finding, consequential upon the establishment of error, that a lesser sentence is warranted for the purpose of s.6(3) Criminal Appeal Act 1912. However, submissions with respect to the ground were directed, as well, to a claim of manifest excess in sentence. 82Clearly, this Court does not reach an assessment under s.6(3) unless error has otherwise been established so as to trigger the Court considering that statutory question: Zreika v R at [79] (see [35] above). In circumstances where error has not been established in the first or second grounds of appeal, it is appropriate to consider this ground as one claiming that a manifestly excessive sentence was imposed. Submissions of the Parties 83Mr Hamill SC submitted that there were two significant features of this case which pointed to the necessity for imposition of a lesser sentence. Firstly, there was no premeditation and, secondly, there was no intention to kill. He submitted that, as a general principle, murder resulting from an intention to do grievous bodily harm is not as objectively serious as murder involving an intention to kill. 84Mr Hamill SC pointed as well to what he described as the Applicant's sad personal history and his plea of guilty which, taken with other relevant factors, ought lead to the conclusion that a lesser sentence ought to have been imposed. 85In support of this ground, Mr Hamill SC furnished a schedule of murder sentencing cases which, he submitted, demonstrated the excessive nature of the Applicant's sentence. 86The Crown submitted that the sentence imposed upon the Applicant was not unreasonable or plainly unjust and that, in any event, no lesser sentence is warranted in law. 87The Crown noted that senior counsel for the Applicant at first instance had handed up a schedule of cases obtained from the Public Defenders' data base, and that this schedule was utilised for the purpose of submissions. It was submitted to Barr AJ, for the Applicant, that an appropriate minimum term lay somewhere in the range of 12 to 15 years (T16, 25 February 2011). The Crown observed that the non-parole period ultimately fixed in this case (16 years) was just above the top of the range articulated by senior counsel for the Applicant before the sentencing Judge. 88The Crown submitted, as well, that a finding of special circumstances had been made, leading to the fixing of a non-parole period which represented 66.67% of the full term. 89The Crown submitted that the table of cases relied upon by the Applicant in this Court did not support a contention that the sentence imposed upon him was manifestly excessive. Determination 90In approaching this ground of appeal, I bear in mind that the Applicant's late plea of guilty attracted a discount of 10% on sentence. 91The finding that the offence was below the mid-range involved acceptance of the submission made for the Applicant on sentence. 92The sentencing Judge's conclusion that the Applicant intended to cause grievous bodily harm, and not to kill, contributed to the finding made concerning objective seriousness. Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill in a case of murder, that is not always so, and there may be circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill: Tran v R [2011] NSWCCA 116 at [1], [44]-[45]. 93That said, the finding with respect to intent in this case was, in my view, appropriately taken into account by his Honour in assessing the gravity of the Applicant's offence and in the calculation of sentence itself, as was the absence of premeditation. 94The sad but practical reality of this case was that the Applicant had almost nothing operating in his favour subjectively on sentence. 95The Applicant's significant history of crimes of violence did not assist him: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 574-575 [24]-[34]. 96The Applicant's mental condition has been considered earlier in this judgment. The approach adopted by the sentencing Judge, which does not disclose error, meant that this factor had no real traction in a manner favourable to the Applicant in this case. 97The Applicant did not demonstrate shame or contrition beyond his plea of guilty (ROS [9]). 98I have had regard to the cases referred to by the Applicant as suggested comparable cases. Those decisions are R v O'Leary [2004] NSWSC 821; R v Heffernan [2005] NSWSC 739; Apps v R [2006] NSWCCA 290; R v Waters [2006] NSWSC 502; R v Harvey [2007] NSWSC 871; R v Thompson [2008] NSWSC 109; R v Pocock [2008] NSWSC 1435; R v Shamouil [2009] NSWSC 24; R v O'Donnell [2009] NSWSC 42; R v Edwards [2009] NSWSC 164; R v Carr [2009] NSWSC 995; R v Cox [2009] NSWSC 1067; R v Holcroft [2010] NSWSC 1294; R v Borg [2010] NSWSC 951; R v Jones [2010] NSWSC 432; R v Wong [2010] NSWSC 171 and Lee v R [2011] NSWCCA 169. In addition, I have had regard to Tran v R. 99I have considered these various sentencing decisions in unrelated cases to which the Court's attention has been drawn, keeping in mind the limited approach referred to by the High Court in Hili v The Queen [2010] HCA 45; 242 CLR 520 at 536-537 [53]-[54]. 100By asserting manifest excess, the Applicant alleges that the result embodied in the sentencing Judge's order was unreasonable or plainly unjust. The Applicant asserts that it was to be inferred from the result that there was a failure to properly exercise the discretion which the law reposes in the sentencing court: House v R [1936] HCA 40; 55 CLR 499 at 505. 101Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because (if it be the case) the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the reasons: Wong v R [2001] HCA 64; 207 CLR 584 at 605 [58]; Hili v R at 538-539 [58]-[59]. That this Court may have exercised the sentencing discretion differently is not the test: Lowndes v R [1999] HCA 29; 195 CLR 665 at 671-672 [15]. 102To the extent that it may in any event be relevant, there is no case amongst those relied upon by the Applicant that is especially close to the circumstances of this offence and this offender. 103It is the case that the full term of imprisonment of 24 years imposed upon the Applicant is greater than the full term imposed upon any of the offenders in these cases. A head sentence of imprisonment for 24 years was imposed by this Court on a successful appeal by the offender in Tran v R. 104The non-parole period imposed, in a number of these cases, was close to or at the level of the non-parole period specified for the present Applicant: R v Wong (15 years and six months); R v Jones (16 years); R v Borg (16 years); R v Holcroft (17 years); R v Edwards (14 years); R v O'Donnell (16 years and six months); R v Shamouil (14 years and six months); R v Pocock (14 years and nine months); R v Thompson (15 years); R v Waters (15 years) and R v O'Leary (16 years). 105What follows from an examination of these cases, and that of the Applicant, is that a substantial head sentence has been imposed in this case, with a non-parole period which provides the Applicant with a significant opportunity for release by way of conditional liberty. The finding of special circumstances, which led to the variation of the statutory ratio, operates in the Applicant's favour. 106Having regard to the circumstances of the offence and the offender, I am not persuaded that the sentence imposed upon the Applicant was unreasonable or plainly unjust. It has not been demonstrated that the sentence is manifestly excessive. 107I would reject the third ground of appeal, both in its assertion that the sentence was manifestly excessive and its claim that some lesser sentence is warranted in law and should have been passed by reference to s.6(3) Criminal Appeal Act 1912.
108The Applicant has not demonstrated patent or latent error with respect to sentence. 109I propose that leave to appeal be granted, but that the appeal against sentence be dismissed. 110HAMMERSCHLAG J: I agree with Johnson J.
Amendments 06 September 2012 - Problem in Caselaw - deleted all underlining in judgment. Underlining now manually inserted. Amended paragraphs: Judgment 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: 06 September 2012
Beldon
R
[2005] HCA 25
[2001] HCA 64
[2000] WASCA 203
[2007] VSCA 102
[1999] WASCA 66
[1999] WASCA 7
[2011] VSCA 45
[2011] VSCA 156
[2012] VSCA 6
[1936] HCA 40