Ground 2: Manifest Error
42 As already stated, his Honour discounted the sentence by 20 percent on account of the applicant's plea. On that basis, the starting point for the sentence was 13 years and 1½ months and the starting point for the non-parole period was 7 years and 6 months. One can understand an applicant feeling aggrieved that discounts have not been in fact applied when calculating the effect of the discount renders the starting point at such an odd figure. I make the comment that we must bear in mind that there is a significant degree of rounding and, for all we know, such rounding could have been in the applicant's favour. Nevertheless, it is essential that a discount that is applied ought display a transparent process which does not give the parties the impression that there is a degree of arbitrariness in the figures that have been chosen.
43 Manifest error, as the term indicates, is an error manifest in the sentence imposed, which allows an appeal court to interfere with an exercise of discretion even though the Court is unable to identify a particular error. Possibly because of the perception in the profession of the operation of s.6(3) of the Criminal Appeal Act 1912, there is a tendency to include identifiable errors, for example the misapplication of the principles in Veen (No. 2), supra, under this general heading. This was done here. It should not be encouraged.
44 Appeals against sentence exist, at least in part, to ensure a degree of consistency of approach and result. This is so that the appeal court can correct sentences which are imposed outside the range of sentences for an offence and offender of that kind, bearing in mind objective criminality and all of the subjective factors involved.
45 As the sentencing judge noted, this is an extremely serious offence. But for good grace and the skill of the medical profession in Australia, it is highly possible that the applicant could have been facing a murder charge. That is not a factor that can be taken into account in determining sentence, but is an indicator to the level of violence and damage occasioned by the conduct of the applicant. Nevertheless, as the sentencing judge noted, at least by implication, this is not in the worst category of case for an offence of this kind. It involves no premeditation or planning; there is no extensive period where the applicant could have cooled off. It displays violence, loss of temper and inability to control one's emotional reactions to everyday occurrences. It is a crime of impulse and bespeaks an inability to control one's anger. This is one of the reasons that his Honour found special circumstances and the need for a rehabilitation process in the community.
46 The applicant put before the Court a summary of cases in which sentences have been imposed for offences in contravention of this provision where the offence was wounding by knife. In so doing, the applicant puts forward 14 cases, only two of which were delivered during the currency of the legislation imposing the standard non-parole period. A schedule of cases of that kind is not usually helpful. It tends to undermine the necessary level of individuality in any sentencing process. Furthermore, 14 cases is not a particularly good sample, if one were to apply statistical averages.
47 The statistics provided by the Crown assist a little more. The Judicial Commission's statistics provide 33 cases of offences in contravention of s.33 of the Crimes Act committed after 1 February 2003. The mid-range for all offenders, including upper mid-range, is well below the sentence imposed on the applicant. Those same statistics show that 63 percent of offenders would have received something less than 6 years' non-parole period or fixed term. If one is confined to pleas of guilty, there are only 25 such cases and the respective figures for mid-range suggest 5 to 7 years for whole of sentence and 4½ years for the non-parole period. Nevertheless, the incidence of offences is such that the sample is too small to show a true range. Further, one must be exceedingly careful in applying statistics arithmetically. To do so is to perpetuate an arithmetic process which becomes self fulfilling. It also undermines the necessary discretion that must be brought to bear.
48 Notwithstanding those cautionary notes, it is fair to say that on the basis of those statistics, even in relation to pleas of guilty, the sentence that has been imposed is within the range of worst case sentences rather than in the high mid-range sentences. There may be reasons for this. It may be that the comments by his Honour on s.44 of the Act do indicate an approach which lengthened the remainder of the term rather than shortened the non-parole period. It may be that his Honour over-emphasised the prior convictions or that the violence of the prior convictions and the mistaken reference to more than one act of violence has infected his Honour's thinking in reaching, intuitively, the non-parole period and remainder of sentence. It also seems that the courts have been lenient in sentencing for a particularly violent offence. Whatever is the case, given the ranges that are usually imposed, there is available to the applicant a justifiable sense of grievance that he has not been sentenced in the mid-range and the sentence is excessive.
49 In these circumstances, one is now required to assess whether a lesser sentence is warranted. In my opinion, it is. I have taken into account the references before his Honour, the psychiatric and psychological report and other material tendered before his Honour. I have also taken into account, at this stage, the additional material presented before this Court. This is the first occasion the applicant has been incarcerated. In terms of total sentence, in the circumstances of this offence and this offender, a starting point, before discount for plea of guilty, of 12 years seems appropriate. I continue, with some reluctance, the 20 percent discount for the plea of guilty. I also find special circumstances, as did his Honour, but, because this is not an issue, I do not set out or repeat each of the factors. I propose the following orders:
a Leave to appeal be granted;
b The sentence imposed on the applicant by his Honour Judge Delaney on 7 June 2005 be quashed;
c For the offence of maliciously wound with intent to do grievous bodily harm contrary to s.33 of the Crimes Act 1900 (NSW), committed on 15 December 2003, the applicant be sentenced to imprisonment for a non-parole period of 5 years to commence on 16 December 2003 and expire on 15 December 2008, with a balance of sentence of 4 years and 7 months to commence on 16 December 2008 and expire on 15 July 2013. The earliest date the applicant would be eligible for release is 15 December 2008.