[2014] HCA 37
Lehn v R [2016] NSWCCA 255
R v Hamid [2006] NSWCCA 302
Source
Original judgment source is linked above.
Catchwords
[2014] HCA 37
Lehn v R [2016] NSWCCA 255
R v Hamid [2006] NSWCCA 302
Judgment (2 paragraphs)
[1]
Judgment
BEAZLEY P: I have had the advantage of reading in draft the reasons of Hamill J. I agree with his Honour's reasons and proposed orders.
SCHMIDT J: I also agree with Hamill J's reasons and orders.
HAMILL J: The applicant seeks leave to appeal against a sentence imposed by his Honour Judge Buscombe in the District Court on 25 January 2017. He was sentenced on two indictments containing three charges. There were two offences of violence committed upon his domestic partner (Sarah Lennan) and one offence arising from his attempt to cover up those offences. The first count was an allegation of assaulting Ms Lennan between 1-14 August 2013. The second count involved recklessly causing grievous bodily harm to Ms Lennan on 15 August 2013. A second indictment included one count (which I will call "the third count") of providing a false version of events to police with intent to pervert the course of justice.
The three offences carried maximum penalties of imprisonment for 2 years, 10 years and 14 years. There was a standard non-parole period of 4 years attaching to the second count. Pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the applicant asked his Honour to take into account an offence of damaging property on the same date in sentencing for the second count.
The sentencing Judge imposed an aggregate sentence of 7 years imprisonment with a non-parole period of 5 years. [1] The sentence was ordered to commence on 7 July 2015. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act, his Honour indicated a sentence of 16 months imprisonment for the common assault offence, a sentence of 6 years with a non-parole period of 4 years for the recklessly causing grievous bodily harm offence, and a sentence of 12 months for the attempt to pervert the course of justice offence.
The applicant relied on a single ground of appeal comprised of three, closely related, parts:
The sentencing judge imposed an aggregate sentence that was wholly accumulated on earlier sentences. His Honour erred by failing to take three matters into account:
1. A period of pre-sentence custody.
2. The effect of the earlier sentences on the total ratio between the non-parole period and total sentence.
3. The principle of totality.
It is necessary to consider the somewhat unusual chronology of the litigation. The applicant was in custody at the time he was sentenced by Judge Buscombe. He was refused bail in relation to the three offences for which he stood to be sentenced by his Honour. However, during the period of remand, he was also in custody in relation to sentences imposed earlier but arising out of offences committed after the present offences. Those other offences related to further acts of domestic violence committed on the same victim. In summary, the relevant chronology was as follows.
5 August 2013: The present offences were committed.
31 March 2014 - 1 April 2014: The applicant committed offences of assault occasioning actual bodily harm and stalking upon Ms Lennan ("the 31 March offences").
8 April 2014: The applicant was arrested for the 31 March offences.
17 June 2014: The applicant was sentenced for the 31 March offences. He was sentenced to 15 months imprisonment, with a non-parole period of 12 months, commencing on 8 April 2014.
30 July 2014: The victim reported the present offences to the police.
7 April 2015: This was the expiry date of the non-parole period for the 31 March offences.
7 July 2015: This was the expiry date of the parole period (balance of term) for the sentence imposed for the 31 March offences.
16 December 2016: The sentencing hearing for the present offences.
25 January 2017: The aggregate sentence for the present offences was imposed. As I have indicated the sentences were ordered to commence on 7 July 2015, which is to say the date of expiry of the total sentence (non-parole period and balance of term) for the 31 March offences.
Before turning to consider the grounds of appeal in more detail, it is appropriate to set out the facts upon which the applicant was sentenced. The learned sentencing Judge described the facts, which were subject to agreement between the parties, as follows:
The complainant Ms Lennan and the offender met in 2010 and were in a de facto relationship since about November or December that year and started living together. As a result of that relationship they have two young children. The victim was living at [redacted] and the offender moved into that property with her. The relationship was a volatile one and deteriorated after the birth of their first child.
The offender had initially been verbally abusive towards the victim and became increasingly violent resulting in physical abuse from April 2011. Between 1 and 13 August 2013 the offender and the victim were having a heated verbal argument in the premises. During this argument the offender grabbed the complainant around her neck with both his hands and started choking her. The offender forced her to the floor. The offender was yelling "I'm going to kill you" whilst squeezing the victim's throat so hard that she could not breathe. The victim was struggling against the offender's grip by kicking him with her legs but this had no effect. The victim also tried to knee the offender in the groin and squeeze his scrotum but he still did not let go. The victim was starting to feel faint. She was holding a lit cigarette in her right hand during the incident and eventually used the lit end to burn the offender's shoulder. At the time the offender was wearing a singlet. The offender relaxed his grip. The offender ran after her and was yelling at her to get back into the house. When she refused the offender picked up a wooden stick and chased her around the backyard swinging the stick trying to hit her with it. The victim picked up a garbage bag containing household rubbish and threw it at the offender. After this the offender calmed down and went back inside. Those facts constitute the common assault.
On the morning of Thursday 15 August 2013 the offender and the victim were at home with their two children. The offender collected the green wheelie bin from the garage and got up into the ceiling in the bedroom. He started to kick holes through the ceiling causing plaster, gyprock and insulation to fall through into the room below. He told the victim that he was doing that so that the Department of Housing would do something about the mould problem which they had not fixed despite complaints.
Later that day the offender and the victim were in the lounge room and they started arguing. The offender was yelling at the victim and she was scared that he would hurt her so she was avoiding eye contact. The offender, who was standing to the right of the victim about an arm's length away, then punched the victim really hard to the right side of her face. She felt a crack in her jaw. The victim immediately thought that her jaw had been dislocated as it felt out of place. She was in agony and could not talk. She was in such pain that she was unable to cry. She sat down on a mattress situated on the lounge room floor holding her jaw. The offender went over to the victim and said, "You need to go to the hospital but what are we going to say?". The victim could not talk or communicate or do anything given the immense pain she was in. One of the children then ran into the room. The victim was aware of a foul taste forming in her mouth. She was really thirsty but not able to drink anything because she could not open her mouth. The victim did not know what to do as she felt trapped.
The offender then said to the victim, "We will say it happened in a home invasion. I want you to go outside and sit with Kaylee while I trash the house". The victim took Kaylee outside and they went to the garage. The offender started to smash things in the house. At one point the offender went to the garage to collect the towbar that was usually affixed to his car and he took this inside and he used it to smash the walls. After a while he went into the garage, picked up one of the children and put her in the car while the victim waited in the garage. The offender then used his mobile phone and contacted his cousin and said, "We've had a home invasion and Sarah has been hit". The offender went back inside the house with the towbar and used it to continue smashing the house including the wall between the lounge room and the kitchen. The offender told the victim to get into the car which she did. The offender came out of the house a short while later. He no longer had the towbar. He was carrying one of the children.
At about 5.59pm the offender called a Mr Sutton and said he would be around there in about five minutes to drop the child off. When asked why he said, "Some fuck's just got into my house and flogged Sarah and broken her jaw and trashed the house". At 6.10pm Mr Sutton received another call from the offender and could hear the offender saying, "We've got to go, we've got to go come on get in". At about 6.20pm the offender arrived at Mr Sutton's premises. He arranged for Mr Sutton to look after the children while he took the victim to the hospital. He told Mr Sutton, "Some cunt just broke Sarah's jaw and trashed our house".
Mr Sutton described the complainant as "Unable to make a coherent reply, rather she made a groaning sound". Whilst driving the victim to Katoomba Hospital the offender said, "Please don't tell anybody what has happened, I am sorry".
Upon arriving at the hospital the offender took the victim to the Emergency Department where she was seen by a triage nurse. The offender spoke to the triage nurse and said, "There's been a home invasion and Sarah got hit".
By this time the police had been contacted and a crime scene had been established at the premises. The detectives arrived at Katoomba Hospital, tried to speak with the victim, but due to her injuries she was only able to make hand gestures and the offender spoke to them. The victim was given pain relief and sent for X-rays, which revealed that her jaw had been fractured in three places.
At this time the offender went with police to Katoomba Police Station where he provided an electronically recorded statement. He detailed what he claimed was a home invasion. What he told the police is set out in detail in the statement of facts. I do not propose to read it onto the record, suffice to say what he told the police was clearly a false account of what had occurred.
Crime Scene investigators attended the house and logged and recorded extensive damage throughout the premises.
On 16 August 2013 the victim was transferred to Nepean Hospital where she underwent surgery to repair the injuries occasioned to her jaw. As a result of the surgery the victim had a plate inserted, a chain inserted around the ball of her jaw, as well as screws inserted to hold her jaw together. The victim discharged herself from hospital after three or four days, and she and the offender went to live with the offender's mother for a few days, before moving in with Mr Sutton and his family.
The plan devised by the offender was that they would move around and stay with different people and they were to appear too nervous to return to their home after the alleged home invasion.
In September 2013 the Department of Community Services removed the children from the care of the victim and the offender so they then returned to the house.
On 31 March 2014 the offender assaulted the victim in Emu Plains, the victim reported the assault to the police on 1 April 2014, and he was subsequently charged.
Since the offender was in custody, the victim used the opportunity to seek assistance by being provided temporary accommodation at a Women's Refuge. She used the opportunity to receive counselling and assistance.
On 30 July 2014 the victim attended Katoomba Police Station and provided detectives with a statement detailing the 15 August 2013 offence upon her. She had not been able to come forward prior to that date due to suffering from the effects of the ongoing physical and emotional abuse inflicted upon her during the relationship.
On Monday 8 December 2014 detectives from Katoomba Police Station attended the Metropolitan Remand Centre and placed the offender under arrest.
As a result of the damage occasioned to the premises the Wentworth Community Housing is seeking the sum of $4,568.87 in compensation.
There is a victim impact statement before me. It is detailed and moving, and it was read by the victim at the sentencing hearing. Clearly the offending has had a significant impact upon her given the level of violence that was involved.
Ms Lennan's Victim Impact Statement described the physical and mental impact of the offences on her and her children. She suffers from severe post-traumatic stress disorder, anxiety, depression, flashbacks and nightmares, as well as memory loss and migraines from her physical injuries. Ms Lennan was left homeless and in significant debt. Having her children restored to her custody involved a long and difficult process. The offences and the applicant's incarceration have had a significant emotional and behavioural impact on the children.
These were very serious offences of violence with lasting impact on the victim. The sentencing Judge assessed the objective seriousness of the common assault offence as being "above the mid-range" and the recklessly causing grievous bodily harm offence as being "within the mid-range level of objective seriousness." His Honour noted that there was very little planning involved in the attempt to pervert the course of justice offence and assessed it as being "below the mid-range level" objectively.
No complaint is, or could be, made about Judge Buscombe's summary of the facts or with his Honour's assessment of the objective seriousness of the offences. Putting aside the question of whether it was necessary to articulate the assessment of the objective seriousness of the offences by reference to the putative "mid-range" (particularly in relation to the offences where there was no standard non-parole period), his Honour's analysis was considered and correct.
His Honour noted that the two offences of violence were domestic assaults that took place in the context of a relationship marred by such violence. In those circumstances the weight to be given to general deterrence was substantial notwithstanding his Honour's findings concerning the applicant's mental health problems. [2] No criticism was made of the sentences indicated for the individual offences or with the total aggregate sentence settled on by the sentencing Judge. The sentence was a severe one but the facts, given the applicant's history of violence, called for a stern penalty.
To place the events in the context of the violent relationship, and to consider the proper application of the totality principle, it is also necessary briefly to set out the substance of the 31 March offences. At the time, the couple had been in a de-facto relationship for four years and had two children (although they were under the care of Community Services at the time). The offender and victim were driving from Penrith to the Blue Mountains where the applicant was reporting for bail. Throughout the course of the drive the applicant threatened the victim, yelling "If they don't stay these orders, I'm gunna break your fucking legs. If we don't get the kids back it's your fault", "You better hope they stay these orders or promise I'll break you into pieces" and "I'm gunna fucking crack it". The applicant punched the victim's arm and the left side of her face, under her eye.
The complaint made on this appeal, as articulated in the ground of appeal and in the applicant's submissions, concerned the commencement date of the aggregate sentence, the failure to backdate the sentence to an earlier period in time, and the structure of the sentence. It was submitted that the structure of the sentence, and the total accumulation on the sentence for the 31 March offences, nullified the finding of special circumstances and the modest adjustment to the aggregate non-parole period. It was also submitted that his Honour failed to take into account the totality principle.
The ground based upon the failure to backdate the sentence to a date earlier than 7 July 2015 is clearly established. While counsel for the respondent did not concede this ground, her submissions were circumspect and allowed for the possibility that this ground was made out.
At the sentencing hearing the Prosecutor tendered a bundle of documents as exhibit 1. This included, on the first page, a "Crown Sentence Summary". That summary included the following information under the heading "Calculation of time spent in custody":
Bail refused for this matter from 8 December 2014.
Serving a sentence for H4306012 and H54084317 [that is, the 31 March offences] from 4 April 2014 to 7 July 2015 (NPP expired on 7 April 2015).
In Custody (Bail refused on this matter only) from 7 July 2015.
In Custody Bail Refused for H61485952 from 22 July 2016.
The italicised portion of this part of the Crown Sentence Summary, if it was not incorrect, was apt to mislead the sentencing Judge. It is reasonable to infer, as fairly conceded by the respondent, that this document led his Honour to commence the aggregate sentence on 7 July 2015. I am satisfied that to do so was an error. The sentences should have commenced, at the latest, on 7 April 2015, the expiry date of the non-parole period for the 31 March offences.
Section 47 of the Crimes (Sentencing Procedure) Act provides for the commencement dates of sentences:
47 COMMENCEMENT OF SENTENCE
(1) A sentence of imprisonment commences:
(a) subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed, or
(b) if the execution of the sentence is stayed under section 80, on the day on which the court decides whether or not to make a home detention order in relation to the sentence.
(2) A court may direct that a sentence of imprisonment:
(a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or
(b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.
(3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.
(4) The day specified in a direction under subsection (2)(b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender:
(a) will become entitled to be released from custody, or
(b) will become eligible to be released on parole,
having regard to any other sentence of imprisonment to which the offender is subject.
(5) A direction under subsection (2)(b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if:
(a) a non-parole period has been set for that other sentence, and
(b) the non-parole period for that other sentence has expired, and
(c) the offender is still in custody under that other sentence.
(6) A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.
The section provides a sentencing Judge with a degree of flexibility. The prima facie position is that the sentence commences on the day it is imposed. If the sentence is to commence before that date, the section provides no particular guidance except that the sentencing Judge "must take into account any time for which the offender has been held in custody in relation to the offence". Otherwise, the determination of the commencement date is to be determined by reference to general sentencing principles and other relevant provisions. If the sentence is to commence after the date sentence is imposed, there is less flexibility as a result of the provisions in subsections (4) and (5). Those subsections provide that if the sentence is to be accumulated on a sentence which is to expire in the future it can only be accumulated on the non-parole period for that pre-existing sentence. There is no similar provision in relation to sentences ordered to commence before the date of sentence. Accordingly, it may be that s 47 on its own terms does not prohibit the commencement date chosen in the present case.
However, s 47(3) and general principles of sentencing require that an offender be given credit (at least) for periods of incarceration that are solely referable to the offences for which they are being sentenced and the preferable course is to "backdate" the commencement of the sentence. [3]
It is also important to remember the provision in s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW):
158 STATUTORY PAROLE ORDER
(1) An offender who is subject to a sentence of 3 years or less, being a sentence for which a non-parole period has been set, is taken to be subject to a parole order (a "statutory parole order" ) directing the release of the offender on parole at the end of the non-parole period.
Note : The provisions of Divisions 1, 3A and 5 of this Part and of Part 7 applying to parole orders, including provisions relating to conditions, revocation and release, apply to statutory parole orders (see definition of "parole order" in section 3 (1)).
(2) A statutory parole order is conditional on the offender being eligible for release on parole in accordance with section 126 at the end of the non-parole period of the sentence.
(3) If the offender is not eligible for release at that time, the offender is entitled to be released on parole as soon as the offender becomes so eligible.
(4) This section does not authorise the release on parole of an offender who is also serving a sentence of more than 3 years for which a non-parole period has been set unless the offender is entitled to be released under Division 2.
The sentence for the 31 March offences was a sentence of less than 3 years. By operation of s 158, the applicant was subject to a statutory parole order from the date of the expiration of the non-parole period, that is 7 April 2015. Accordingly, the applicant was in custody "bail refused on this matter only" since 7 April 2015 and not, as the Crown Sentence Summary said, 7 July 2015. This is why the latest the sentence should have been ordered to commence was 7 April 2015.
For those reasons, the first part of the applicant's single ground of appeal is established. The respondent eschewed the suggestion that this was a case where the Court could simply adjust the commencement date without proceeding to resentence in accordance with the High Court's decision in Kentwell v The Queen. [4] There is authority in New South Wales that there may be cases where a discrete and mathematical error may be corrected in this way, [5] but I accept the respondent's submission in the circumstances of the present case. That is because there is substance in the other submissions made on behalf of the applicant and also because evidence was tendered "on the usual basis" in the event that the Court came to consider re-sentence.
The second and third parts of the applicant's ground of appeal relate to the extent to which his Honour accumulated the aggregate sentence on the pre-existing sentences. His Honour decided to wholly accumulate the sentences. Such a course was open in the particular circumstances of the case because the present offences represented separate and serious offending on the same victim. It would have been open to the Judge to accumulate partially on the existing sentence on the basis that the aggregate sentence for the present offences was imposed after a sentence imposed for similar offences committed on the same victim several months later. However one looks at the unusual chronology, the two sentences related to separate and serious criminal behaviour and Judge Buscombe's approach to the exercise of this discretion cannot be criticised.
It was submitted that the sentencing Judge failed to take into account the principle of totality. It was acknowledged that his Honour carefully considered that principle in determining the appropriate aggregate sentence and the putative accumulation and concurrence in respect of the three indicative sentences. However, it was put that his Honour did not apply the principle when he determined the degree of accumulation between the aggregate sentence and the pre-existing sentence. I am not satisfied that his Honour erred in this regard. The remarks on sentence, read as whole, suggest that his Honour was aware of the principle of totality and the options available in terms of partial accumulation. It was open to his Honour, applying the principle of totality, to impose a wholly cumulative sentence.
However, I accept the applicant's submission that the total impact of the sentence, and its structure, essentially negated the finding of special circumstances.
There was a body of evidence concerning the applicant's psychiatric condition. It is unnecessary to provide the detail of that material but Judge Buscombe accepted that the evidence was relevant to the sentencing outcome. In particular, his Honour said that "to some degree his moral culpability might be thought to be reduced and he may not be an entirely suitable vehicle for the expression of general deterrence when sentencing." It seems that the finding of special circumstances was largely based on this body of material, and notwithstanding his Honour's inevitable finding that "[the applicants]'s prospects of rehabilitation are guarded". His Honour said:
"I do consider that there should be a finding of special circumstances so that he can be appropriately supervised and attempt to engage in rehabilitation when eventually released into the community. There will be a small adjustment to the ratio when I fix the non-parole period."
His Honour made such an adjustment when setting the aggregate sentence for the present offending. The period of 5 years settled upon for the non-parole period was about 71.4% of the total aggregate sentence of 7 years. However, when the total accumulation on the pre-existing sentences is taken into account, the total effective sentence became 8 years, 3 months and 4 days and the total non-parole period became 6 years, 3 months and 4 days. This meant the total effective (and accumulated) non-parole period was a little more than 75% of the total effective (and accumulated) sentence.
This was not a case where the sentencing Judge found special circumstances on the basis of the accumulation itself and adjusted the sentence in order to restore what is sometimes referred to as the "statutory ratio" (75%) provided in s 44 of the Crimes (Sentencing Procedure) Act. Rather, the special circumstances related to subjective matters and the adjustment designed to foster the applicant's rehabilitation and re-assimilation into the community. The case is not dissimilar to the circumstances in GP v R [2017] NSWCCA 200. I accept that the total accumulation of the present sentences on the pre-existing sentences essentially nullified the adjustment made for special circumstances.
It is necessary to exercise the sentencing discretion afresh in accordance with the High Court's decision in Kentwell v The Queen. [6] I have considered the evidence tendered on the appeal. I have taken into account the subjective case established in the sentencing proceedings, the plea of guilty, the applicant's bad criminal history especially for offences of violence, and the contents of the Victim Impact Statement. I would impose the same total aggregate sentence (7 years) settled on by the sentencing Judge. I am not satisfied that a less severe total sentence is warranted. The sentence is a severe one but this is required by the purposes of punishment in s 3A of the Crimes (Sentencing Procedure) Act, reflects the criminality involved in the three offences, the impact on the victim and the bad history of domestic violence perpetrated by the applicant.
In exercising the sentencing discretion afresh, I make a finding of special circumstances. That finding is based on the matters referred to by Judge Buscombe, that is the subjective features of the case and the desirability that the applicant should have a longer period of supervision and parole. However, it also encompasses the effect of the accumulation of this sentence on the pre-existing sentence. I would make a greater adjustment to the aggregate non-parole period than did the sentencing Judge and would commence the sentence on 7 April 2015. I would impose an aggregate non-parole period of 4 years and 6 months. This is around 64% of the aggregate head sentence and reflects the totality principle, the finding of special circumstances and the basis upon which I made that finding. The result is that the accumulated non-parole period (5 years and 6 months) is around 68.75% of the accumulated total sentence (8 years).
For the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, I indicate the same indicative sentences determined to be appropriate by Judge Buscombe.
I would make the following orders: -
1. Application for leave to appeal granted.
2. Appeal allowed.
3. The aggregate sentence imposed in the District Court is quashed and in lieu thereof:
4. The applicant is sentenced to an aggregate sentence of 7 years commencing 7 April 2015 and expiring 6 April 2022 with a non-parole period of 4 years and 6 months commencing 7 April 2015 and expiring on 6 October 2019.
5. The applicant will be eligible for release to parole at the conclusion of the non-parole period.
[2]
Endnotes
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A.
See, for example, DPP v Darcy-Shillingsworth [2017] NSWCCA 224 at [83]-[85] (Basten JA), Cherry v R [2017] NSWCCA 150 at [80] (Johnson J) and R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [86] (Johnson J), R v Johnson [2015] NSWSC 31 at [61]-[62] (Hamill J).
See, for example, R v McHugh (1985) 1 NSWLR 588 at 590 (Street CJ), R v Wiggins [2010] NSWCCA 30 at [3] (Howie J) and R v Newman and Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 at [25] (Howie J).
(2014) 252 CLR 601; [2014] HCA 37.
Lehn v R [2016] NSWCCA 255 at [72] (Bathurst CJ) and Greenyer v R [2016] NSWCCA 272 at [34]-[35] (Button J).
(2014) 252 CLR 601; [2014] HCA 37.
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Decision last updated: 11 May 2018