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[2013] NSWCCA 234
Court of Criminal Appeal (NSW)
2013-10-09
Gleeson JA, Hulme J, Adamson J
Original judgment source is linked above.
The application for leave to appeal 31The applicant seeks leave to appeal on the following grounds: (1)The sentencing judge erred in the conclusion that the applicant's motivation for the commission of the offence was not a relevant and ameliorating consideration in the unusual circumstance of this case. (2)The sentencing judge fell foul of the mischief identified in De Simoni at 389 by having regard to a more serious offence in the face of objection by the Crown and the defence. (3)The sentencing judge erred by failing to allow for any discount on sentence on account of the quasi-custody served by the applicant. (4)The sentencing judge erred in the application of parity principles. (5)The aggregate sentence, and the discrete sentences indicated, are manifestly excessive. (6)The sentence imposed on the applicant's co-offender [Knowles] gives rise to a legitimate sense of grievance in the application of proportionality principles.
Ground 1: the applicant's motive 32The applicant initially submitted that the sentencing judge erred in concluding that her motivation for the commission of the offence was not a relevant and ameliorating factor. The applicant refined the submission in oral argument to acknowledge that the sentencing judge had taken motive into account. She did, however, contend that it was necessarily an ameliorating factor and that his Honour erred by considering it to be an aggravating factor. The applicant relied in support of this submission on R v Swan [2006] NSWCCA 47 (Swan). 33Swan was a very different case from the present. Swan, who was intellectually disabled, offended against the victim not only in order to take revenge for the sexual assaults committed against him, but also from an erroneous view that he was deterring the victim from assaulting other intellectually disabled people. In circumstances such as those, general deterrence was of limited significance and therefore the need to deter others from taking the law into their own hands was attenuated. 34In Quealey v R [2010] NSWCCA 116 (Quealey) Latham J, Giles JA and RS Hulme J agreeing, reviewed cases concerning vigilantism at [23]-[28]. The effect of these authorities is that, except in cases such as Swan, where the offender's mental disability lessens its significance, the sentence imposed where there is such a motive must reflect the need for general deterrence in order to denounce the offender for taking the law into his or her own hands rather than reporting any suspected crime to the authorities so that it can be investigated and dealt with in accordance with law. 35An important point of distinction between Quealey and Swan on the one hand and the present case on the other is that, whatever sexual activity may have taken place between the victim and A, it was not illegal. The crimes committed by the applicant and her co-offenders were acts of revenge for something they adjudged to be morally wrong. 36I am unable to discern any error in the approach taken by the sentencing judge in regarding the applicant's motive as a factor that required a sentence that would fulfil the purpose of general deterrence. 37The applicant, in oral argument, submitted that motive ought to have been an ameliorating factor with respect to specific deterrence. It is difficult to see how this must, or even could, be so. However, since his Honour found the applicant's prospects of rehabilitation to be good, it can reasonably be inferred that little or no weight was given to specific, rather than general, deterrence in the present case. 38It was also submitted on behalf of the applicant that her motive ameliorated her moral culpability. The basis of the submission, in so far as it can be discerned, appeared to be that her actions were understandable or excusable because they were a response to the victim's own conduct which the applicant purported to find morally reprehensible. This proposition is untenable. 39Accordingly this ground must fail.
Ground 2: whether the sentencing judge breached the De Simoni principle in taking into account the injuries sustained by the victim 40The applicant accepted in oral argument before this Court that the sentencing judge was entitled to take into account the injuries sustained by the victim as long as his Honour did not take into account that the victim had suffered grievous bodily harm. 41I agree with this proposition as a correct statement of the law to be applied when an offender is to be sentenced for an offence under s 95 of the Crimes Act of robbery in circumstances of aggravation. For the sentencing judge to take into account injuries amounting to grievous bodily harm, even if it were established beyond reasonable doubt that the injuries actually inflicted amounted to grievous bodily harm, would infringe the De Simoni principle because it would have the effect of punishing the offender for a more serious offence for which she has not been convicted, namely the offence of robbery inflicting grievous bodily harm, under s 96 of the Crimes Act. 42Accordingly this ground requires an analysis of the remarks on sentence to ascertain whether his Honour limited the gravity of the injuries taken into account in determining the sentence to actual bodily harm rather than grievous bodily harm. 43I consider that the extracts from the remarks on sentence set out above, when read as part of the remarks as a whole, establish that: (1)The sentencing judge rejected the submissions of the Crown and the applicant's counsel that he ought not take into account the physical harm suffered by the victim. (2)The sentencing judge considered that the injuries sustained by the victim, as evidenced by the photographs and medical report tendered by the Crown without objection, were capable of amounting to grievous bodily harm. (3)His Honour appreciated that De Simoni obliged him to disregard any harm which went beyond actual harm and amounted to grievous bodily harm. (4)Accordingly it was necessary for his Honour to make clear that he would sentence on the basis of harm that was "less than substantial" (that is, not amounting to grievous bodily harm) but "certainly significant" (that is, actual harm but not grievous bodily harm). (5)His Honour considered that the harm to the victim was reasonably foreseeable by the applicant. 44I consider his Honour's reasons to have sufficiently exposed and articulated the application of the relevant principles set out above. His Honour's approach was consistent with those principles. No error has been demonstrated. This ground must fail.
Ground 3: alleged failure to take into account quasi-custody 45The applicant contended that the periods she spent in Odyssey House and Gorman House for rehabilitation ought to have been taken into account by the sentencing judge and that the sentence ought be backdated accordingly. 46The applicant sought to read her affidavit affirmed on 25 September 2013 and the affidavit of Frances Low affirmed on 30 September 2013 as constituting fresh evidence on the appeal, and also on the usual basis if this Court were minded to re-sentence. These affidavits contain details of the periods during which the applicant was in various institutions for rehabilitation and the terms of her residence, or attendance at those institutions. There is no basis to conclude that the evidence in those affidavits was not available to the applicant at the time of the sentence hearing, or would not have been available, had it been sought. Indeed the list of documents provided to Dr Rowe that is contained in his report, referred to below, prove that such material was available. It was not, however, tendered. 47The applicant accepted not only that no submission was made that the sentencing judge ought to take such periods into account, but also that no evidence of the conditions that governed her periods of rehabilitation was tendered at the sentence hearing. Nonetheless she contended that the Court could take judicial notice that institutions such as Odyssey House were custodial institutions the inmates of which were subject to strict conditions and that, on that basis, the sentencing judge was obliged to take into account the time she spent there in determining her sentence. 48The applicant relied on the principle that where a sentencing judge has failed to take into account time already served, the sentence must be corrected even in circumstances where the time already served was not referred to or otherwise brought to the attention of a sentencing judge. It does not, however, follow from the correctness of this principle that so-called quasi-custody must be treated in the same way. 49The time for which the offender has been held in custody in relation to the offence is a mandatory relevant consideration by reason of s 24(a) of the Crimes (Sentencing Procedure) Act. Accordingly it is an error of law to fail to take it into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39-40 per Mason J. 50Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to. 51Sentences have been amended in this Court to take account of quasi-custody even where the sentencing judge was not asked to do so. The applicant relied on Renshaw v R [2012] NSWCCA 91 (Renshaw). In Renshaw, the sentencing judge had, on 8 October 2010, released Renshaw upon a recognisance on condition that he reside at a rehabilitation centre and comply with all directions of staff. Renshaw remained there until 8 August 2011 when the residential condition of his recognsance was changed. At the sentence hearing on 5 September 2011, the sentencing judge was, accordingly, well aware of the nature of the offender's quasi-custody and its duration. In those circumstances, this Court found that the sentencing judge had erred by failing to take into account periods spent in rehabiliation in determining the sentence although no specific submission had been made to that effect. It reduced the sentence accordingly. 52The present case is different. There was insufficient evidence before the sentencing judge to enable his Honour to determine the conditions of the applicant's quasi-custody. The Pre-Sentence Report contained the following paragraph: "Ms Bonnett advised of previous attempts at intervention to treat her illicit substance abuse. The offender reported to have completed a detoxification program in December 2010 and to have engaged in three months of a residential rehabilitation program prior to self-exiting." 53Dr Rowe's report contained a reference to the applicant's time at Odyssey House from 4 January 2011 to 27 March 2011 but there was no detail given about the conditions to which she was subjected. Dr Rowe listed the documents which he used in preparing his report which included: 2.2 Odyssey House Completion Detoxification Certificate dated 18 January 2010 to 27 January 2010; 2.4 Certificate of Completion Assessment Stage from Odyssey House dated 4 February 2011; 2.5 Certificate of Completion Level 1 from Odyssey House dated 25 February 2011. 54These documents were not, however, tendered at the sentence hearing. The applicant did not give evidence about her rehabilitation when she gave evidence at the sentence hearing, except in general terms. 55No relevant submission was put to the sentencing judge at the sentence hearing and no evidence was tendered to establish the conditions of her so-called quasi-custody, such as might tend to prove that it amounted to quasi-custody. 56It would have been open to the sentencing judge to take into account the applicant's time at Odyssey House as a form of quasi-custody, had he been asked to do so, but it would not necessarily have resulted in a lesser sentence. If all the periods at Gorman House and Odyssey House are accepted, she spent 97 days in quasi-custody. At most, she might expect an allowance of about 49 days. In the context of a sentence of four years this is not substantial. 57It was submitted on behalf of the applicant that the residual discretion to decline relief in sentencing appeals is confined to Crown appeals. This submission is incorrect and must be rejected. This Court has recently reiterated the relevant principles: first, that it is not appropriate to make minor adjustments to a sentence in order to give some practical endorsement to an error if not otherwise warranted; and, secondly, that the residual discretion to decline relief that would amount to "tinkering" applies to all appeals, although it is most commonly exercised with respect to Crown appeals: see the cases referred to in Matthews v R [2013] NSWCCA 187 at [149] per Hoeben CJ at CL, Leeming JA and Beech-Jones J. 58It is also relevant that the applicant did not attend these institutions as a requirement of her bail conditions. Rather she had been granted bail and chose to attend Odyssey House. She obtained a variation of her bail conditions to permit her do this. She was assisted to overcome her addiction and obtained the benefit of a finding that she had good prospects of rehabilitation and was unlikely to re-offend. This was the basis for the finding of special circumstances which led to a reduction of one year in the non-parole period from the statutory proportion between the balance of the term and the non-parole period specified in s 44(2) of the Crimes (Sentencing Procedure) Act. 59This Court will not refrain from interfering even if a point is not taken below in order to correct a miscarriage of justice or a serious injustice: Zreika v R [2012] NSWCCA 44 at [75]-[83] per Johnson J, McClellan CJ at CL and Rothman J agreeing. However, this is neither of these. In my view there was no error in the sentencing judge not reducing the sentence to take into account the period of so-called quasi-custody in these circumstances. This ground must fail.
Ground 4: alleged error in the application of parity principles 60Judge Keleman SC's remarks on sentence in respect of Rooke were provided to the sentencing judge. Bennett DCJ found that it was appropriate that there be accumulation to take account of the additional criminality involved in the take and drive offence. Although the applicant and Rooke each entered pleas on the day the matter was listed for trial the applicant received a 20% discount whereas Rooke received 10%. 61The applicant took umbrage at not receiving the benefit of the s 10A order that was made by Keleman DCJ in respect of Rooke for the take and drive conveyance offence. However, as the applicant conceded in oral argument, the aggregate, or total, sentences are the relevant comparators for the purposes of assessing parity, not the indicative sentences given to explain the aggregate sentence. 62I do not consider the disparity between the sentences imposed on Rooke and the applicant to be such as would give rise to a justifiable sense of grievance in the applicant. The total aggregate sentence imposed on the applicant was considerably lower than the sentence imposed on Rooke. The disparity was justified by differences between the co-offenders, including the different part each played in the relevant criminal enterprise: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [31] per French CJ, Crennan and Kiefel JJ. Accordingly this ground fails.
Ground 5: sentences manifestly excessive 63The principal basis on which the applicant contended that her sentence was manifestly excessive was the alleged disparity, which I have rejected in addressing ground 4. 64However the applicant also contended that there was an undue accumulation between the robbery offence and the take and drive offence which had the effect of making the overall sentence excessive. 65Whether to order sentences to be served concurrently or cumulatively is a matter for discretion, subject to the principles of totality: see the cases referred to in McKellar v R [2010] NSWCCA 295 at [61]-[63] per RA Hulme J. 66In my view it was open to the sentencing judge to have considered that there was additional criminality inherent in the take and drive offence, having regard to the acts involved in obtaining the keys to the garage and the car keys from the victim and driving his car from the premises. There was a significant overlap with the criminality inherent in the aggravated robbery offence in the sense that it represented a continuation of the same endeavour. But some degree of accumulation was called for, since the sentence for the aggravated robbery did not, in my view, comprehend the criminality involved in the take and drive offence. 67I am not persuaded that the sentencing judge's discretion that there should be partial accumulation miscarried. Neither of the individual sentences is manifestly excessive. The degree of accumulation is consistent, in my view, with the principle of totality. I detect error neither in the process nor in the result. 68This ground fails.
Ground 6: alleged lack of proportionality with sentence imposed on Knowles 69As can be seen from the comparative table above, Knowles pleaded guilty to an offence under s111(2) of the Crimes Act. The Form 1 offence of intimidation was also taken into account. Sides DCJ, who sentenced Knowles, considered Keleman DCJ's remarks on sentence in respect of Rooke and the sentencing judge's remarks on sentence in respect of the applicant. His Honour referred to the principles of parity and undertook a careful and detailed comparison between the circumstances and findings regarding the applicant and Rooke and those regarding Knowles. 70The applicant's criminality was substantially greater than that of Knowles. She was the active party for much of the criminal conduct. She was the person who arranged the attendance of the co-offenders at the victim's house. She administered the stupefying drug; she questioned him about his credit cards; his garage and interrogated him about his sexual history. She was charged with a more serious offence. Further, Sides DCJ found that Knowles suffers from paranoid schizophrenia and experiences a high level of anxiety and paranoia. He also has a substance abuse disorder that began when he was a child. He had injected ice shortly before the offending conduct. Sides DCJ was accordingly satisfied that there was a substantial reduction in his moral culpability by reason of his mental health and the ingestion of the drug. 71There is, in my view, no basis for concluding that the applicant has a justifiable sense of grievance for any disparity between her sentence and those imposed on either Rooke or Knowles. This ground fails. 72Each of the grounds of appeal has failed. No error has been shown. For completeness I record that, even had error been shown, I do not consider that any lesser sentence is warranted in law within the meaning of s 6(3) of the Criminal Appeal Act 1912.
Proposed Ground 7: alleged miscarriage of justice arising from fresh evidence as to quasi-custody 73In the course of the hearing, the applicant, when asked whether she sought leave to add a further ground on the basis of fresh evidence, confirmed that no such application was then being made but reserved her right to make such an application. The context in which the right was reserved was that any such application ought be made before the conclusion of the hearing of the application. Notwithstanding that no such application was made before the Court reserved its decision, the applicant sent a document to this Court attaching a further ground together with her submissions in support. The proposed ground 7 is in the following terms: The fresh evidence as to the applicant's quasi-custody in this case has given rise to a miscarriage of justice. 74Although leave to add this ground has neither been sought, nor granted and the Crown has not been heard on the proposed ground, it can be dealt with briefly since it has largely been addressed in any event in the reasons for rejecting ground three set out above
The applicant's submissions 75In her additional submissions in support of the proposed ground, the applicant referred to the following passage in R v Goodwin (1990) 51 A Crim R 328 (Goodwin) at 330 in which Hunt J, with whom Grove J agreed, articulated the relevant test for determining the admissibility of fresh evidence on a sentencing appeal: What must be established is: (1) that the additional material sought to be put before this Court is of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (2) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (3) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings. 76The applicant submitted that the first requirement had been made out. The applicant has made no attempt to satisfy the second and third requirements. Indeed the report of Dr Rowe establishes the contrary of the third requirement since the applicant's legal advisers not only had the relevant material, but they provided it to Dr Rowe for the purposes of his furnishing a report to be tendered on the applicant's behalf at the sentence hearing. 77The applicant also relied on R v LBK [2001] NSWCCA 248 (LBK) in which Simpson J referred to and applied Goodwin. The applicant referred to [47] where her Honour said: The real question concerning the admissibility of fresh evidence is whether the applicant can bring himself within the first of the tests stated, that is whether the material sought to be relied upon is of such significance that the sentencing judge may have regarded it as having a real bearing on his decision. 78The applicant also submitted that there is a general power in the Court to receive fresh or new evidence where the interests of justice require that course: R v Many (1990) 51 A Crim R 54.
Reasons for refusing leave to add ground 7 79The principles for receiving new evidence were summarised by Howie AJ (Hunt CJ at CL and Smart J agreeing) in R v Fordham (1997) 98 A Crim R 359: Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed. However, fresh evidence has been received by this Court where a miscarriage of justice may have occurred because there has been incompetent legal representation at the hearing before the sentencing court: R v Abbott (1984) 17 A Crim R 355 or where there has been negligence or carelessness in the presentation of the defence: R v McKenna (CCA, 16 October 1992, unreported). It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: R v Goodwin (1990) 51 A Crim R 328, cf R v De Marco (CCA, 20 November 1995, unreported). There is also a general power in the Court to receive fresh or new evidence where the interests of justice require that course: R v Many (1990) 51 A Crim R 54. 80Each of the three requirements identified in Goodwin must be established before the fresh evidence can be allowed. They are independent and cumulative; they are not alternatives. Indeed, were it otherwise, there would be no identifiable end to the further applications that could be made in respect of sentences. 81The statement set out above from LBK was made in the context of evidence which Simpson J expressly accepted "adequately met" the second and third requirements in Goodwin: [46]. Nothing in LBK lends any support to the proposition for which the applicant contended that the requirements in Goodwin are alternatives. 82I am not satisfied that the evidence should be received in the interests of justice. In my view, leave to amend the application to add the proposed ground 7 ought be refused on the grounds that it is bound to fail.
Proposed orders 83The orders I propose are: (1)Refuse leave to amend the application to add proposed ground 7: The fresh evidence as to the applicant's quasi-custody in this case has given rise to a miscarriage of justice. (2)Leave to appeal granted. (3)Appeal dismissed.
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: 18 October 2013
Bonett
R
The sentence hearing 18At the sentence hearing, the Crown tendered without objection a bundle of documents that included: (1)photographs of the victim's injuries; (2)a statement of Dr Arunasalam, a medical practitioner concerning the victim's injuries; (3)the indictment presented against Rooke and a copy of Keleman DCJ's remarks on sentence; and (4)Pre-Sentence Report regarding the applicant. 19The applicant tendered a psychiatric report from Dr Rowe, three urine analysis certificates and various references. She gave evidence about her drug addiction and her heavy drug use at the time of the offences. At that time she and her son were living with her mother and her mother was responsible for caring for her son. She went to a rehabilitation centre to assist with her drug addiction. At the time of the sentence hearing she was living with her son away from her mother. She had just given up her employment at Broadway Lounge so that she could spend more time with her son, who was then six, and looking after him full-time as well as studying for a Bachelor of Film Production. 20Reports before his Honour indicated that the applicant underwent a detoxification program (Gorman House) in December 2010 and partially completed a residential rehabilitation program (Odyssey House) from 4 January to 27 March 2011. 21The applicant was not cross-examined. 22There was significant debate in the course of the sentence hearing about whether the sentencing judge could take into account the injuries sustained by the victim. The Crown and the applicant's counsel submitted that the judge ought not have regard to them. Following the luncheon adjournment, Bennett DCJ referred counsel to Josefski v R [2010] NSWCCA 41; 217 A Crim R 183 (Josefski) and to the principle that the Crown is not obliged to include in the indictment every circumstance of aggravation.
The Remarks on Sentence 23His Honour referred to the submission that he ought disregard the injuries suffered by the victim. He distinguished The Queen v De Simoni [1981] HCA 31; 147 CLR 383 (De Simoni) on the basis that s 95 of the Act provides for three circumstances of aggravation, any one or more of which will bring the offence within s 95: use of corporal violence, intentional or reckless infliction of actual bodily harm and the deprivation of liberty. His Honour also referred to Josefski which concerned an offence of breaking, entering and stealing at a time when the victim and her child were in the premises, a fact or circumstance which the Crown could not prove was known to the offender. 24The sentencing judge quoted extensively from Josefski, including [43] per Howie J: "In my opinion it was open to the sentencing judge to take into account any harm suffered by [the victim] even though the applicant may not have actually known of her presence at the time he broke into the premises. It was reasonably foreseeable that there would be a person or persons in the premises and that any person in the premises would suffer emotional harm caused by the breaking into the premises in the way the applicant did." 25Bennett DCJ continued: "I am unaware of any authority challenging those propositions. In my view, they apply to the circumstances of this matter. The question that then arises is the extent to which injury suffered by the victim might have been reasonably anticipated by the offender in her participation in this crime." 26Later in the remarks on sentence, his Honour said: Having reviewed the facts that are before me, I am satisfied that I may take into account when assessing the commission of this offence, the fact that the victim suffered the injuries that I have described. It was reasonably foreseeable in my judgment that to enter a home in circumstances such as these to rob the victim, that there might be at least some measure of violence in the course of which the victim might suffer injury. Such must have been the perception of the offender for she had the victim take a drug. He was bound and he was gagged. Such control over the victim could have had no other purpose other than to prevent him from resisting in some way. It was, in my judgment, reasonably foreseeable that he might, if given the chance, resist, and that in their efforts to overcome that resistance he might suffer injuries. Accordingly I propose to take into account that he suffered injuries. 27Ultimately the sentencing judge said: "The offender committed this offence in the company of three others; it was committed in the victim's home. As a consequence of this event the victim suffered significant injury. As to whether or not it could be said to be substantial injury minds might differ. I shall proceed upon the assessment that it was something less than substantial but certainly significant." 28The sentencing judge referred to the motive for the offence in the following terms: "The reason for this behaviour was that the four offenders believed that the victim had been using the young female person for sex, and that this was inappropriate because his age was then forty one, the disparity between his age and hers, and his sexual interest in her was "tantamount to paedophilia". 29His Honour referred to the need for general deterrence in the context of vigilantism and concluded by saying: "It is entirely unacceptable for any member of any community to engage upon conduct such as this offender and her co-offenders engaged under the influence of some perception or belief that they are justified in doing so because of what they anticipate had befallen a friend or associate." 30Although the sentencing judge did not refer to specific deterrence in terms, his Honour found that the applicant had good prospects of rehabilitation.
(1990) 19 NSWLR 677
(1989) 17 NSWLR 243