GREER v R

The Sentence Proceedings 7The applicant gave evidence and a psychologist's report was tendered. A reference was tendered at the sentencing proceedings by a Mr Hira, a neighbour and employer. I return to this material below. 8There was some evidence of remorse but the sentencing judge was sceptical that it was altogether wholehearted. His Honour thought that the applicant's proposals for rehabilitation were not thought out well and were "somewhat formulaic". However, his Honour concluded that he was young, with prospects of supervision by his father, and some job prospects. He had been offered work as a wharf labourer which, his Honour observed, was "very commendable if it happens, but the problem is that the wharves in Sydney ... can be violent places". His Honour found special circumstances, as I understand it, arising out of his youth and the need for lengthier supervision than would otherwise be the case if the statutory formula were applied to the length of the parole period.

Previous Offences 9The applicant was charged on 19 November 2007 with the offence of maliciously inflicting grievous bodily harm with the intention of doing so, for which he appeared before the District Court on 22 May 2009. In full discharge of the indictment, the Crown accepted a plea of guilty to reckless wounding whilst in company for which the applicant was sentenced to an overall sentence of four years and 2 months with a non-parole period of two years and one month commencing 27 July 2009 (first offence). This sentence took into account a charge of damaging property on a Form 1. He had also been charged on 16 December 2008 with two offences of damaging property for which he was convicted on 4 February 2009, and ordered to pay compensation of $450 and court costs of $73, with no further penalty imposed. The remarks on sentence in respect of the earlier offence of violence were not before his Honour but counsel for the applicant submitted (as I understand it, without controversy) that the "background and the lead-up" were similar to the present offence, the applicant having been drunk and affected by other drugs at the time. It appeared that he and his co-offender were at a railway station. The applicant made a comment about the appearance of a female pedestrian which was taken up by her male companion who confronted the applicant and the co-offender. The male produced a knife and a fight commenced between him and his co-offender, the applicant claiming that he hit the male once or twice in an attempt to defend his co-offender. The knife fell to the ground and was retrieved by the applicant who used it to inflict a relatively slight though potentially serious wound to the male's leg. Again, the applicant said that he did not remember much of the incident due to being in an intoxicated state but, as a result of CCTV footage, accepted that it had occurred. The applicant was arrested on 19 November 2007 but released on bail on 14 January 2008, which bail was continuing when he committed the present offence. Accumulation of the sentence 10The applicant was arrested on 18 June 2009 for the present offence and remained in custody from that date. The non-parole period in respect of the first offence expires on 26 August 2011 and the sentence for the present offence commences on 17 July 2011. The learned sentencing judge had decided to make this sentence wholly cumulative upon that which was earlier imposed, making an adjustment of the commencement date to give a credit of 39 days for presentence custody, as agreed by counsel. This explains the overlap. However, a period of eight weeks presentence custody was overlooked and it is agreed that, whatever the outcome of the appeal, the applicant's sentence should be adjusted to take this period into account.

Grounds of Appeal 11The applicant appeals on the following grounds - (1) the sentence is manifestly excessive; (2) his Honour erred in failing to take into account the totality principle; (3) his Honour erred in the implementation of his finding of special circumstances; (4) his Honour failed to take into account pre-sentence custody; (5) there is a marked disparity between the sentence imposed upon the applicant and that imposed on his co-offender, giving rise to a justifiable sense of grievance on the part of the applicant; and (6) the sentencing judge erred by not allowing a discount of 25% for the plea of guilty before committal in accordance with s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008.

Discussion 12The applicant submits that, if the Court upholds ground 6, the sentence should be quashed and the applicant re-sentenced, since such an error is a material error requiring such a course. So much is conceded by the Crown. The question has been considered by this Court in Do v R [2010] NSWCCA 182 and Tran v R [2010] NSWCCA 183. 13In Do the sentencing judge had allowed a 20% discount for guilty pleas, but as occurred in the present case, his Honour's attention was not drawn to the Criminal Case Conferencing Trial Act 2008 which requires a discount of 25% to be applied to the term the court otherwise would have imposed. As it happened, the appellant also relied on other grounds of appeal concerning the commencement date of the sentences, the question of totality, the presence of special circumstances and the contention that the sentence was manifestly excessive. As here, the Crown conceded that a material error had occurred in respect of the discount allowed. Hislop J (with whom the other members of the Court agreed) considered that, having regard to the error in the discount, the sentences must be quashed and the applicant re-sentenced, with the consequence that it was unnecessary to consider the other grounds of appeal. In Tran (decided by the same Bench which decided Do ) the same approach was taken, so that the grounds of appeal other than that which raised the discount were not considered. 14I am of the view that this Court should follow the approach taken in Do and Tran, quash the sentence and re-sentence the applicant . Accordingly, it is not necessary to consider the other grounds of appeal.

The Objective Circumstances 15The facts have already been sufficiently set out above. It is important to sentence the applicant for the offence of affray and not for any offence or offences with which he might have been charged, but was not, in respect of the serious injuries which were inflicted on the victims. Liability for these offences would depend upon findings that he actually inflicted them or, aware of the nature of the attack and the possible outcome, had encouraged it. In principle, the applicant's sentence cannot involve findings of this character against him. This distinction arose rather more sharply in Stevens v Regina [2007] NSWCCA 152. Stevens had struck a male victim with his fist causing wounds to his lip and the inside of his mouth and, using a baton, struck the victim a number of times to his head and torso. The victim's wife intervened in an attempt to help her husband and was held by a co-offender who hit her with a tyre lever a number of times on the head inflicting four large wounds that bled profusely. The male victim fell to the ground during his struggle with Stevens and suffered grazing and cuts to his knees and feet. Eventually he overpowered Stevens, got possession of the baton and used it to strike the co-offender when he was hitting his wife on the head with the tyre lever. The two victims managed to get free and retreated into their premises at which time the male victim sustained a number of injuries inflicted by rocks thrown by Stevens and his co-offender. One of the rocks smashed the front window of the victims' house. A further offender joined the other two and threatened the male victim with violence. The applicant suffered broken ribs and the co-offender head wounds requiring stitches. Stevens pleaded guilty to the offence of affray. The sentencing judge described the attack by Stevens and his co-offenders as "not dissimilar to a home invasion" involving "extreme violence". As it happened, charges of assault occasioning actual bodily harm in company and malicious wounding in company (carrying maximum penalties respectively of seven and ten years imprisonment) had initially been laid against Stevens. As the maximum penalty at the time for affray was five years imprisonment, these offences were more serious. However, Stevens' plea of guilty to the offence of affray was accepted in full satisfaction of the indictment. A "home invasion", carries a maximum penalty, depending on the presence of aggravating circumstances, of between 14 and 25 years imprisonment (s 112 of the Crimes Act 1900), again a more serious offence than that of affray. Applying The Queen v De Simoni (1981) 147 CLR 383, it was not open to the sentencing judge to take into account circumstances of aggravation which would have warranted a conviction for a more serious offence; nor could the applicant be sentenced for some other more serious offence for which he had not been charged. Price J (with whom the other members of the Court agreed) said that when sentencing for affray, "an offender's conduct is to be considered in the context of the conduct of a co-offender ... [the] level of violence used and the scale of the affray are relevant ... [although an] offender ... may only be sentenced for that part of his conduct and the conduct of the co-offender which gave rise to the offence of affray and not that conduct which has resulted in some other offence being committed by him or the co-offender", citing R v Huynh [2000] NSWCCA 18, R v Eleter [2003] NSWCCA 130 and R v Fajka [2004] NSWCCA 166. His Honour concluded that it was open to the sentencing judge to find that Stevens and Davis were the aggressors and that they attacked both victims with extreme violence. The attack by the co-offender upon the male victim's wife with the tyre lever was, in his Honour's view, "part of the co-offender's conduct which gave rise to the offence of affray". The reference by the sentencing judge to a "home invasion" and to the victim's wife's injuries were, his Honour considered, "no more than indications by his Honour of the level of violence that was used in the affray", the nature and extent of which "was an objective factor relevant to the seriousness of the offence". In considering these observations, it is important to bear in mind that the violence offered was that of the offenders themselves and the injuries sustained were caused by them. 16In this case, the offence had the following characteristics: there was a large number of young men and women, apparently affected by alcohol and hence to a greater or lesser extent with limited self control; amongst this group were persons who made or encouraged both threats and the infliction of injuries, some of them serious, to three persons; even more serious injury was avoided because the victims fled rather than because of any moderation on the part of the attackers. This occurred in a public street in the city. Whatever may have been the particular actions of the applicant, he was undoubtedly an active participant in the affray. The mere fact that he was so intoxicated as to have little or no memory of what happened following the events, does not at all mean that he was unaware - though it was a drunken awareness - that the group was threatening and frightening to members of the public, including, in particular, the three injured victims. It was not established or alleged that he was aware of the actual threats or had participated in or knowingly encouraged the infliction of any injuries, let alone those which were actually suffered. Nevertheless, it is inescapable that he knew there was a real potential not only for threats but for physical injury. 17An additional element of aggravation is that the applicant was on bail for an offence of violence also committed in a public place. 18This was objectively a serious case warranting a sentence of imprisonment.

Subjective Circumstances 19The applicant was 19 years of age when he committed the offence. The psychologist's report tendered at the sentencing proceedings relates a history that was verified by the applicant in his evidence and was not the subject of cross examination. Intelligence or psychometric testing could not be undertaken because of the limited time available, but the psychologist estimated the applicant's intellectual functioning as lying in the low average to average range based upon his communication skills in interview and his reported school and employment history. It appears that the applicant was raised in a dysfunctional home environment characterised by parental discord and possible domestic violence, maternal alcohol abuse and disrupted attachments. His parents separated at the age of eight or nine but he continued ongoing contact with his father over the course of his childhood and adolescent years. There were behavioural problems which became evident at school and his academic achievement was poor, culminating in his leaving school in Year 9. He commenced drinking alcohol at around the age of 11 when he began to associate with an older peer group, which included his older brother, and reported heavy alcohol consumption over his teenage years, in the period preceding his offence, consuming alcohol daily to the point of intoxication. He commenced to use cannabis from the age of 13 after being introduced to it through friends and used it regularly through his teenage years progressing to daily use by the age of 15. He has used amphetamines monthly from the age of 17 together with cocaine, hallucinogens and weekly use of ecstasy from the age of 18. The applicant informed the psychologist that he had ceased taking illicit substances from when he went into custody. So far as the offence was concerned, the applicant told the psychologist that, having consumed a large quantity of alcohol and taken drugs over the course of the day, he had limited memory of what he had done. The psychologist noted that the applicant acknowledged the inappropriateness of his actions and expressed what appeared to be genuine regret although it is somewhat unclear from the report whether this is a reference to the prior offence involving a knife or the present offence. The applicant reported to the psychologist a "seemingly stable history of employment prior to his offence, and he expressed his desire to work upon his release from custody". 20Mr Hira's reference said that he had known the applicant since early 2006 and had employed him loading and unloading containers (presumably on the wharves) for some unspecified time. He said that that the applicant would occasionally look after Mr Hira's two year old son and also helped his mother with his two younger sisters. He felt that the offence was out of character (but I suspect that he had not seen the applicant when intoxicated). He said that, since the incident he had noticed a great deal of remorse, and offered to re-employ him on his release. There is no reason to question the legitimacy of Mr Hira's opinions or his offer of work. 21In his evidence the applicant said that he did not really remember anything about what had happened in the course of committing the offence but accepted his involvement as it was set out in the fact sheet, saying that he took responsibility for being involved in the affray, that he felt bad about what he had done and, in effect, understood that the victims would feel bad about what had happened. He said that he had been to drug and alcohol meetings whilst he was in gaol with Narcotics Anonymous but that when he moved prisons this ceased. After he moved he sought assessment for drug and alcohol courses but, as at the sentencing proceedings, had not been told of the outcome. He said that when he is released from gaol he wanted to start working and intended to accept help from Narcotics Anonymous to help him stop taking drugs and thought he would be assisted by the supervision of the Probation and Parole Service. He expressed some understanding of the necessity to separate himself from the peer group with whom he had been drinking, taking drugs and which was involved in the affray.

Sentence of the Co-offender 22The co-offender, who was convicted following trial, was sentenced to a term of 18 months imprisonment, which was suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge differentiated between the applicant and the co-offender in a number of respects. She concluded that the applicant had exhibited a higher level of aggression than the co-offender, but this was on evidence different to that given in the applicant's case. The co-offender had been placed on two s 9 bonds less than two months earlier for two offences of assaulting an officer in the execution of his duties (in respect of which the sentencing judge took no action), at the time of the imposition of the bonds, a community service order for 80 hours was made for an offence of assault occasioning actual bodily harm but it is not clear whether this had been completed at the time of the commission of the present offence. However, disregarding the property offences, which appear to be relatively trivial, the applicant's prior offence of wounding in company, in respect of which he was on bail at the time of the present offence, was very much more serious than the co-offender's prior offences. Moreover, the co-offender suffered from post traumatic stress disorder attributable at least in part to his being sexually abused as a child and having to deal with a mentally ill mother, problems which were said to be closely related to his alcohol abuse and violent outbursts, both of which were significant factors in his commission of the offence in question. Between late 2008 and the date of his sentence, the co-offender had taken very significant steps to address these issues and his demonstrated rehabilitation was rightly regarded by the sentencing judge as significant. He produced a number of glowing references and the Probation and Parole Officer, whose report appears to be extensive and thorough, expresses the opinion that the co-offender "has a bright future that is firmly planted in his community ties, family and professional relationships and his personal drive to succeed". She considered that the co-offender "is suitable for a medium to low level of intervention by the Service". He was assessed as suitable for a community service order and, although also suitable for periodic detention, she thought that such a course might adversely affect his psychological and emotional wellbeing, given his chronic post traumatic stress syndrome. 23In favour of the applicant as against the co-offender are his younger age and the fact that he pleaded guilty. 24It is rightly conceded by counsel for the applicant that the co-offender's subjective circumstances justified significantly more mitigation than those of the applicant but it is contended that, making every appropriate allowance for those differences, the sentence imposed on the co-offender should nevertheless be a significant factor in sentencing the applicant in order to avoid a legitimate sense of grievance. She concedes that the applicant's sentence could not be appropriately suspended but submits that the applicant should not be sentenced to a total term exceeding two years imprisonment, after taking into account the statutory 25% utilitarian discount for the early plea.

Special Circumstances 25The learned sentencing judge considered that the applicant's age and prospects of rehabilitation did not justify an extensive departure from the statutory ratio, noting that, despite his youth, he had a prior conviction for serious violence and did not think that the applicant's proposals for rehabilitation were well thought out. His Honour noted that the applicant's evidence about living with his father (accepted to be a positive element), going to Alcoholics Anonymous meetings and attending drug treatment had "all been made in the course of sentencing proceedings and indeed his evidence ... [seemed] somewhat formulaic." However, his Honour observed that the applicant was young and there were some prospects of his being supervised by his father with job prospects qualified by the "locality and culture of that industry". His Honour considered that the statutory ratio should be varied to two thirds. 26Although this Court is re-sentencing the applicant, I would agree with the sentencing judge that special circumstances are present that justify a departure from the statutory ratio. It might be worth commenting that although it is true that the applicant did not have well thought out proposals for rehabilitation, this is scarcely surprising in light of his immaturity and background. It is one of the functions of the Probation and Parole Service to set in place appropriate rehabilitation measures and supervision. His Honour appears to have accepted, with some caution, that the applicant accepted his need for supervision and to take significant steps to deal with his drug and alcohol problems which necessarily involved (as it seems to me he understood), the acceptance of appropriate professional help. An additional feature that is relevant to the issue of special circumstances is the extent to which the present sentence will be accumulated on that imposed for the wounding offence.

Conclusion 27To summarise the objective circumstances, the applicant was part of a group of young persons, many in their early 20s, numbering somewhere between ten and 15 which surrounded and threatened three persons in a intimidating and frightening manner, during the course of which all were injured, two seriously, including long term adverse physical effects. Given the behaviour of the group, the risk that such injuries might be inflicted was clear. There was no excuse of any kind for this cowardly thuggery, which may well have resulted in even more serious injuries had members of the public not given the victims refuge. The applicant was a young man of 19 years of age at the time of the offence. There is no evidence that he was aware of the infliction of the serious injuries or wished to encourage their infliction. He was significantly intoxicated at the time. There is no evidence of planning or premeditation and it is fair to infer that he was taken up with the emotion and aggression of the moment. 28Subjectively, the applicant grew up in a dysfunctional home environment involving domestic violence and alcohol abuse and developed behavioural problems from an early age associated with alcohol and drug abuse from his early teens. He has nevertheless undertaken employment to the apparent satisfaction of his employer and has an offer of work. He has developed some insight into the effects of his drug and alcohol use and has attempted to take some steps within the prison system to deal with the problem, which, if carried through, gives rise to cautious optimism about his rehabilitation. Aggravating features are that, not only was he on bail at the time of this offence but this was in respect of an offence of serious violence bearing in several respects a similar character to the present offence. 29So far as the sentence imposed on the co-offender is concerned, the subjective circumstances of his case differed markedly in some respects from those of the applicant. The co-offender's upbringing was more adverse and resulted in the infliction of significant psychological damage which was a major contributing factor in the co-offender's abuse of drugs and alcohol although it does not appear that the psychological condition directly contributed to the offence. Although the co-offender was on a bond at the time of the offence imposed for assaulting a police officer in the execution of his duty and damaging property and had received 80 hours community service for assault occasioning actual bodily harm, these were not so serious as the wounding in company committed by the applicant. The most significant difference lies in the fact that the co-offender had already demonstrated significant rehabilitation and it was possible to be confident that this would continue, providing there was continuing support which was a feature of the suspension of the sentence imposed upon him. Given that the sentencing of youthful offenders focuses, more than in the case dealing with adults, on the public interest in rehabilitation, the significant differences in the prospects of rehabilitation between the co-offender and the applicant must require a significant difference in sentencing outcome. On the other hand, the co-offender was two years older than the applicant and was convicted following a trial, maintaining his innocence during the sentence proceedings. Overall, whilst I would not go so far as to say that the sentence passed on him was manifestly lenient, it was certainly a markedly lenient sentence. Even taking into account that the applicant has expressed remorse and taken responsibility for his offence and has pleaded guilty, it would not be appropriate to impose on him the sentence imposed on his co-offender. Indeed, so much is conceded by counsel on his behalf. This is not to say, however, that the sentence imposed on the co-offender is immaterial. 30It is important to bear in mind that this Court is not considering whether the sentence under appeal was manifestly excessive on the ground of parity, but rather the appropriate sentence which, in this Court's view, should be imposed. So far as parity is concerned, it is not necessary to refer in any extensive way to authority. The principle is tolerably clear - such as they are, the difficulties occur in applying it to particular circumstances. Broadly speaking, as briefly stated in by Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 (at 609), it is "obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." This is, as I understand it, not controversial. Even where the comparative sentence is "inappropriate or inadequate" it may be necessary to reduce an otherwise appropriate sentence erring on the side of leniency to eliminate or diminish a sense of grievance or appearance of injustice which might result from imposing a more severe penalty than that imposed on the co-offender: see Mason J ( Lowe at 612), where his Honour deals also with the "critical question" whether a court (though his Honour is dealing with a Court of Criminal Appeal as I understand it, his analysis is not limited to a consideration of manifest excess in an appeal against sentence) "can go further by reducing a sentence, which considered apart from disparity is otherwise appropriate, to a level where it is inadequate or might be regarded as inadequate". His Honour answered this question in the affirmative so that "a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate" ( Lowe at 614). 31It is trite that there is a range of sentences which could properly be imposed on the applicant. In light of the sentence imposed on the co-offender, it seems to me that it is appropriate to impose a sentence which is towards the bottom of that available range and somewhat more lenient than the sentence which would have been imposed in the absence of the sentence imposed on the co-offender. 32So far as the commencement date of the sentence is concerned, the period of 13 weeks and 6 days (19 November 2007 to 14 January 2008 and 18 June 2009 to 27 July 2009) of presentence custody referrable to the present offence must be taken into account. The offence of reckless wounding in company was committed on 19 November 2007, the present offence was committed on 13 December 2008. They were two distinct offences involving violence and could not be regarded as a course of criminal conduct. Accordingly, leaving aside the need to make 13 weeks and 6 days of the sentence concurrent, the sentences should be wholly cumulative, subject to the question of whether the overall sentence exceeds the totality of criminality. In this respect in must be borne in mind that the severity of punishment is not to be regarded as a mere linear progression. 33In respect of the offence under appeal, I propose the starting point of the head sentence should be four years which, after the statutory discount, results in a term of three years imprisonment. Commencing this sentence 13 weeks and six days before the expiry of current non-parole period to take account of pre-sentence custody, the starting date is 22 May 2011. No further concurrency is justified. 34In my view the applicant's youth and the need to support and encourage his rehabilitation requires a parole period of one year and six months. Accordingly, I would find special circumstances and impose a non-parole period of one year and six months from 22 May 2011 to 3 December 2012 with a balance of term of one year and six months. On the face of it, this would mean that the applicant will have to actually serve an additional period before being eligible for parole of a little under fifteen months (27 August 2011 to 21 November 2012). This is somewhat deceptive because to this period must be added the 13 weeks and 6 days that he has already served, so that the actual additional term of imprisonment before he is eligible for release is some 18 months. 35The ratio between the overall sentence and the overall effective non-parole period does not significantly differ from the statutory ratio and no further adjustment is necessary. This outcome would be the same if the special circumstance arose merely from the accumulation of the sentence. Proposed orders 1 Grant leave to appeal against sentence. 2 Quash the sentence of the District Court. 3 Substitute a non-parole period to commence on 4 June 2011 and expire on 3 December 2012 with a balance of term of one year and six months to commence on 4 December 2012 and expire on 3 June 2014. 36BUDDIN J: I agree with Adams J.

Amendments 18 March 2011 - Date of commencement of balance of term amended from 04.06.2012 to 04.12.2012. Amended paragraphs: Decision on cover sheet, para 3, and para 35, order 3 15 July 2011 - Correction to sentence dates Amended paragraphs: 32,33 &34 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: 15 July 2011