HARDIE v REGINA; PHILLIPSEN v REGINA

Ground 1 15In support of the first ground of appeal, reliance was placed on remarks of Howie J, with whom the other members of the Court agreed, in R v Zamagias (2002) NSWCCA 17 at [24] et seq:- "24. There is a preliminary question to be addressed and, depending upon the answer to that question, two further steps may have to be undertaken before the ultimate sentence is imposed. 25. The preliminary question to be asked and answered is, whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the Act prohibits a court from imposing a sentence of imprisonment unless the court is satisfied, having considered all possible alternatives, that no other penalty other than imprisonment is appropriate. It should be noted that at this stage in the process the only consideration is whether a sentence of imprisonment should be imposed and not whether that sentence should be suspended. Notwithstanding that s.12, which provides the power to suspend a sentence, is contained in Division 3 of Partt 2 of the Act under the general heading "Non-Custodial Alternatives", a suspended sentence is not an alternative to which s.5 relates: JCE (2000) 120 A Crim R 18 at 15. That is because a sentence cannot be suspended until it has been imposed: it is the execution of the sentence that is suspended not its imposition. 26. Having determined that there is no other penalty appropriate other than a sentence of imprisonment, the court is next to determine what the term of that sentence should be: R v Foster (2001) NSWCCA 215 at 30. This has been regarded as the first step of a two-step approach in the imposition of a sentence of imprisonment, see R v Blackman and Walters (2001) NSWCCA 121 at 50 to 52; JCE at 17. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed: see s.6 (periodic detention order), s.7 (home detention order) and s.12. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. For example, it cannot be increased because it is to be served by way of periodic detention: R v Wegener (1999) NSWCCA 405, or by home detention: R v Jurisic (1998) 45 NSWLR 209 at 249. Nor can the term be reduced because an otherwise appropriate alternative is unavailable: R v T ( NSWCCA, 19 June 1995) 27. ... 28. Once the term of the sentence has been determined, the court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s.77 of the Act with respect to home detention. But the appropriateness of an alternative to full-time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full-time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is fulfil all the purposes of punishment. R v Jurisic at 250B." 16It may be accepted that Howie J's remarks accurately and logically reflect the various steps and the order of them as flow from the terms of the Crimes (Sentencing Procedure) Act . However, it does not follow that a judge must expressly follow this order and refer to all of the steps in circumstances where the ultimate result is, in the judge's view, clear. Howie J made this clear at [30] of his remarks in the case just referred to. Basten JA made a similar point when, in Amado v R (2011) NSWCCA 197 at 5, his Honour observed:- "It was unrealistic to suppose that the Court actually reaches its conclusion by proceeding mechanically from step one to step three." 17Certainly, in many cases the risk of error may increase if a judge does not expressly advert to some or all of the possibilities or steps referred to in Howie J's remarks. But there are many cases where a sentence of full-time imprisonment is so obviously demanded that the procedure envisaged by Howie J can properly be foregone. 18Not only did his Honour make the remarks that I have quoted, including the passage that no sentence other than full-time imprisonment is appropriate. The sentence imposed during the same proceedings on Ms Bird was a suspended sentence. In those circumstances it cannot be thought that his Honour's failure to expressly deal with the matter by way of the steps referred to by Justice Howie was erroneous or indicative of error. Ground 1 fails.

Ground 2 19The seriousness with which the law regards the offences committed by the applicants is apparent from the penalties provided. To take but the first offence, s.114(1)(d) provides that:- "Any person who:- (d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence on or upon the building shall be liable to imprisonment for seven years." 20Thus, even without the actual commission of some other offence, the penalty for entering, or simply being there, with the relevant intent, exposes an offender to the risk of a lengthy prison term. 21The view of the legislature has been echoed by the courts in numerous cases. People are entitled to the privacy of their homes. Equally, they are entitled to freedom from assault. 22And while judging offences of the general nature of those committed by the applicants the courts have regarded it as appropriate to look at the motivation for the offences - see eg R v Lovell & Dominey (2006) NSWCCA 222 and Smith v R (2011) NSWCCA 209 and the cases therein cited. It is clear that general deterrence is an important factor in cases such as this. Persons must be discouraged from seeking to themselves right what they perceive to be injustices or punish those they think, rightly or wrongly, have wronged them. 23Retribution is also a matter to which principles of sentencing require that regard be had. It is particularly important in this case where Ms Wilkie has suffered not only the pain which must have been associated with her physical injuries but the ongoing effects of post traumatic stress disorder and permanent hearing loss. 24Before Colefax DCJ it was submitted that his Honour could not take into account this hearing loss because to do so would be to have regard to a more serious offence, ie, assault occasioning grievous bodily harm. His Honour rejected the submission, although saying that he did not regard that injury as a circumstance of aggravation. 25The consequences to the victim, including the hearing loss, were included as part of the Statement of Agreed Facts, upon which the hearing before Colefax DCJ proceeded and, although the matter is not entirely clear, probably in the circumstances where the Statement of Agreed Facts and the charges - which would seem to have been less serious than those on which the applicants were committed for trial - were both the product of negotiations between the parties. Be that as it may, the borderline between actual bodily harm and grievous bodily harm is not always clear and in these circumstances his Honour was entitled to approach the matter upon the basis that the hearing loss and other injuries, although obviously serious, were not so bad as to amount to grievous bodily harm. 26Recognition of course had to be afforded to the ages of the applicants and to his Honour's favourable, or relatively favourable, view of their pasts and of their prospects of rehabilitation. However, the extended nature of the attack on Ms Wilkie, the fact that it occurred following an unlawful entry into her home and the extent of the injury to her, mean that a severe sentence was appropriate. Not only are the sentences not manifestly excessive, when regard is had to the maximum penalties of seven years imprisonment for most of their offences, the applicants are fortunate that their sentences were not higher. 27I would grant leave to appeal but dismiss the appeals. 28BASTEN JA: I agree with Hulme J. Ground 1 seeks to invoke the requirements set out in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (" Sentencing Procedure Act ") to the effect that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. There are concerns as to how that should be dealt with in the course of expressing reasons for sentence; I refer to the comments I made in that regard in Amado v R [2011] NSWCCA 197, at [5]-[7]. 29There is also a question as to the precise relationship between that obligation and the power to suspend a sentence pursuant to s 12 of the Sentencing Procedure Act , but that issue does not arise in the present case. More significantly, if there were an error in the way his Honour had approached the expression of his satisfaction in that regard, it would merely give rise to an issue as to whether this Court should re-sentence the applicants. For the reasons given by Hulme J, I am not persuaded that the sentences imposed were in any sense other than sentences warranted at law. I therefore agree that there should be a grant of leave to appeal but the appeals of each offender should be dismissed. 30SCHMIDT J: I agree with both Justice Hulme and Justice Basten. 31BASTEN JA: The orders of the Court are as Justice Hulme indicated: leave to appeal is granted in respect of each applicant. Each appeal is 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: 22 February 2012