(3) In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court." [Emphasis added]
23 In the absence of any argument on the point it seems that this subsection had at least the effect of restricting his Honour's powers when sentencing the applicant in the following ways. First, by restricting the maximum penalties that could be imposed by his Honour to those applying in the Local Court. Secondly by restricting his Honour's power to accumulate such sentences beyond a period of three years.
24 The sentences that were imposed by his Honour with respect to the matters to which the applicant pleaded guilty should have been calculated having regard to s 168(3) of that Act. His Honour was constrained by the maximum penalties applying in each case in the Local Court. The sentences that were in fact imposed were therefore arrived at erroneously. The applicant should be re-sentenced for this reason alone.
Ground 2
25 His Honour made a specific determination of the objective seriousness of the intimidation offence at par [27]. However, although his Honour made some general observations about features of aggravation and the impact of the applicant's record of domestic violence, there is no assessment made in relation to the objective seriousness of the remaining offences.
26 His Honour made some general observations at par [32] of the remarks on sentence when considering mitigating factors that provided some guidance as to the probable assessment of objective severity. The applicant submitted that his Honour did not discharge his obligation to do so with respect to each separate offence. In this regard his Honour said, "as to all the offences other than the offence of intimidating the complainant, the mitigating factors are (a) because the injury to the complainant and the doors was not substantial, (b) the offences were not planned being more spur of the moment …".
27 The applicant contended that given the limited facts recited in the remarks on sentence, his Honour would have been obliged to assess the objective seriousness of the offences to be low. If his Honour had properly assessed the objective seriousness of these related offences the applicant submitted that he would have imposed sentences that were considerably reduced. He was in error in the circumstances. He also submitted that on the basis of this ground alone the Court's discretion to re-sentence is enlivened and that it should proceed to do so.
Ground 3
28 With respect to the intimidation offence the applicant emphasised that JIRS statistics revealed that of 1142 cases dealt with by the Local Court between March 2007 and December 2008, 13 per cent resulted in sentences of full time imprisonment with a total of 62 per cent receiving either fines or bonds. Of the 13 per cent that were imprisoned, 2 per cent were sentenced to 2 years imprisonment (the jurisdictional maximum), 25 per cent attracted 12 months and 60 per cent attracted a range of between 1 month and 9 months.
29 Even accepting the assessment that the offence fell "well above the middle range of objective seriousness for offences of this type", as found by his Honour, the applicant submitted that a sentence of 3 years full time imprisonment was manifestly excessive.
30 The applicant also submitted that the common assault offences were manifestly excessive. He sought to compare the circumstances of the present case with those in R v Abboud [2005] NSWCCA 251 and McCullough. The applicant contended that these offences were low on any scale of objective seriousness.
31 The applicant submitted that the malicious damage offences were also manifestly excessive taking into account his Honour's findings of a lack of substantial damage and lack of planning.
32 With respect to the overall sentence the applicant did not contend that his Honour failed to have regard to the principles of totality as required by Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. The significant degree of partial accumulation between the sentences that were imposed contributed to a total sentence that was manifestly excessive and that a lesser total sentence is warranted in law.
Conclusions
33 Alike with Howie J in McCullough, I consider in this case that the sentences for the malicious damage offences were excessive having regard to the nature of the offences and to the maximum sentence that the Local Court could lawfully have imposed had the offences been dealt with in that jurisdiction. The objective facts of these offences may have been difficult to assess in isolation from the events that surrounded them. However, the extent and degree of the damage to the doors when taken at face value ought not in my opinion to attract non-parole periods of imprisonment of 5 months in each case. His Honour was in error not to have had regard to the maximum sentence for these offences that could have been imposed if the applicant had been dealt with summarily. Sentences in each of these cases of nearly 7 months where the Local Court jurisdictional limit was 12 months are manifestly excessive. The applicant should be sentenced in each case to a fixed term of imprisonment of 2 months. I consider that a fixed term, equating to what would otherwise be a non-parole period of 2 months, is appropriate when one has regard to the principles of totality and to the overall level of criminality involved in all of the offences.
34 The sentences for the assaults were also manifestly excessive, but to dissimilar extents. The earlier assault on 15 May 2007 involving punching the complainant is the more serious of these offences. However, having regard to the fact that this offence could have been dealt with summarily, the sentence is disproportionate to the maximum sentence that could have been imposed for the offence in the Local Court. Having regard to a maximum sentence of imprisonment of 12 months in that jurisdiction I consider that the applicant should be sentenced to a fixed term of imprisonment of 6 months. Once again I consider that a fixed term, equating to what would otherwise be a non-parole period of 6 months, is appropriate when one has regard to the principles of totality and to the overall level of criminality involved in all of the offences.
35 The assaults that respectively involved pulling the complainant's hair and throwing the torch at her (which would appear in fact to have been a pen with a light as opposed to a full-sized torch as ordinarily understood) do not involve a degree of objective seriousness that should attract head sentences of 9 months in my opinion. Once again, having regard to the fact that these offences should have been dealt with by reference to the maximum penalties applying in the Local Court, I consider that the applicant should be sentenced in each case to a fixed term of imprisonment of 4 months. I once again consider that a fixed term, equating to what would otherwise be a non-parole period of 4 months, is appropriate when one has regard to the principles of totality and to the overall level of criminality involved in all of the offences.
36 The applicant attacked the sentence on the intimidation charge upon the basis that first, as a matter of comparison, it is excessive in statistical terms. The applicant has conceded the frailty of any reliance upon statistics alone. His Honour assessed the offence to be well above the middle of the range of seriousness for offences of this type. The applicant did not however contend that his Honour was in error in this respect, but submitted secondly that having regard to the sentence that could have been imposed for a like offence in the Local Court it was manifestly excessive.
37 In the absence of a specific challenge by the applicant to his Honour's assessment that the offence was well above the middle of the range for this offence, about which minds may arguably differ, the important fact to emphasise is that the applicant was tried on indictment in the District Court. No controversy attends that fact. The applicant cannot legitimately complain that his Honour, in imposing a sentence by reference to the maximum sentence that could be imposed in that jurisdiction, failed properly to advert to the comparable penalty in the Local Court for the same offence as a relevant consideration in the circumstances. In this regard I have taken account of what was said by Johnson J in McIntyre v R [2009] NSWCCA 305 at [62] - [64] and [66] - [67] as follows:
"[62] The relevant principles have been stated in a number of decisions of this Court, including R v Crombie [1999] NSWCCA 297; R v Gent (2005) 162 A Crim R 29 at 45-48 [76]-[91]; McCullough v R [2009] NSWCCA 94 at [22]-[26]; Edwards v R at [47]-[49]. There is no fixed rule when an argument based upon possible summary disposal is advanced, nor is this a factor which operates universally to reduce sentence. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Edwards v R at [47].