Harper v R

Court of Criminal Appeal (NSW)|2017-06-28|Before: Hoeben CJ, Hulme J, Garling J

Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2014/295949 Decision under appeal Court or tribunal: District Court Date of Decision: 13 May 2016 Before: Blackmore SC DCJ File Number(s): 2014/295949

Judgment

HOEBEN CJ at CL: I agree with R A Hulme J.
R A HULME J: Grant William Harper ("the applicant") was sentenced by Blackmore SC DCJ in the District Court at Sydney on 13 May 2016 for an offence of break, enter and commit a serious indictable offence (intentionally damage property) in company whilst armed with a dangerous weapon (a stun gun).
His Honour imposed a sentence of imprisonment for 5 years 3 months with a non-parole period of 3 years 3 months dating from 29 April 2016.
The offence is contrary to s 112(3) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 25 years. There is also a standard non-parole period of 7 years.
The applicant had pleaded guilty to the charge on the day his trial was due to commence. His Honour reduced the sentence he otherwise would have imposed by 12.5 per cent to reflect the utilitarian value of the plea.
The applicant applies for leave to appeal on a single ground: The sentence imposed for the offence does not reflect the sentencing judge's finding as to where the offence fell in the range of seriousness for offences of that type.

Facts

The victims of the offence, Mr Murat Kuru (now deceased) and his wife, Jannette Kuru, lived with their three young children in a home unit at Hillsdale. The applicant's sister, Elaine Lynch, lived in the same block of units and her boyfriend, Jason Beach, lived with her from time to time. Ms Lynch and Mr Beach would often fight and yell obscenities at each other and at other residents, including the Kurus, and damage common property.
During 2010, apprehended violence orders were made for the protection of both victims from Ms Lynch and Mr Beach. In September 2010, Mr Beach was found guilty of intimidating the victims. At about that time, Ms Kuru prepared a petition to have Ms Lynch's lease terminated which was signed by every other unit occupier.
On 2 December 2010, Mr Beach arrived at the unit block in his car and saw Mr Kuru. He yelled out a threat which included, "You're gone, you fucking cunts, you're gone, watch your house, watch your car and watch your back you fucking cunts". Mr Kuru reported the incident to police.
During that afternoon Ms Lynch falsely told several people and police that Mr Kuru had bashed in her front door.
At around 11.45pm that night the Kuru family was in their unit. The children, who were aged three months, two years and six years, were asleep. There were four or five loud knocks on the front door followed by a thump. Mr Kuru pushed his wife into the hallway and then heard a second thump and the front door was smashed open. Six males including the applicant and his brother, Mark Ayres-Harper, all dressed in black, charged into the unit. One of the men held a stun gun. One of the men yelled, "I told you that we were going to get you cunt" and "You're gone you fucking wog cunt". One of the men also yelled. "Get him. Get him with the stun gun".
Mr Kuru ran towards the hallway and felt something hit his back. He felt a shock and his muscles stopped working. He fell to the ground and at this point turned and saw the six men. He got up and was halfway down the hallway when he was shot again in the shoulder. Ms Kuru saw sparks flying from the device and saw her husband's body shaking. Mr Kuru moved behind a door and closed it.
The males were kicking the hallway door while Mr Kuru braced himself against the door on the other side. He then heard smashing noises in the kitchen and living area. After a few minutes it became quiet and he heard the front door slam. He went into the living room and saw that the intruders had left. The plasma TV on the wall in the living room had been damaged. The kitchen bench was also damaged. The hallway and front doors were broken.
Mr Kuru called the police. They attended shortly after and carried out a crime scene investigation. Finger and palm prints of the applicant were found on the broken TV. It was not until the applicant was arrested for another matter almost four years later that his fingerprints were identified.
On 9 October 2014 the applicant attended Mascot Police Station after arrangements were made with his lawyer. He was arrested and charged. His brother was subsequently arrested and charged. The other males who entered the unit were not identified.
Mr Ayres-Harper proceeded to trial with a defence that he was not present during the commission of the offence. He was found guilty and was sentenced at the same time as the applicant. He received a sentence of 6 years 6 months with a non-parole period of 4 years 3 months. The applicant does not raise any complaint on parity (or insufficient disparity) grounds.
The applicant gave evidence at the sentence hearing. His account of the offending was that he heard from his sister Michelle that his sister Elaine Lynch had her door kicked in and a gun had been pointed at her while she was walking her son and daughter. He thought he would "go down there and tell him, like, to leave her alone". He said he drove to Hillsdale from his home (in Colyton) in his own car and picked up the other men along the way. It was when he was arrested and charged in 2014 that he found out that what he had been told about the mistreatment of his sister Elaine was not true. He realised in hindsight that he should have acted differently; he appreciated the harmful consequences for the victims; but at the time he thought he was just being a protective brother.
The judge considered a number of factors bearing upon an assessment of the objective seriousness of the offence. He concluded: "the offence falls below the middle of the range of seriousness for this type of offence". More will be said about this shortly.

Personal circumstances of the applicant

Tendered in the sentencing proceedings were a number of testimonials, a Pre-Sentence Report and a psychological report. His Honour summarised the applicant's subjective case as follows: "Grant Harper is a husband and father. He is well employed and has been all of his working life. He is the main breadwinner. There is an abundance of character testimonials before the court in his favour. In my view this offence can be seen to be an aberration in an otherwise blameless life. Having said that, it was indeed a serious aberration. There is a psychologist report but really his history is unremarkable. His psychologist notes that he is suffering from depression and anxiety due to the present circumstances which will see him receive a sentence of imprisonment. The family income will drop significantly and no doubt there will need to be some negotiation with their bank with respect to the repayment of the mortgage. Clearly any sentence will cause difficulties for his family but that is an inevitable consequence of his actions on this day. I accept that the offender is contrite for his actions. He has every chance of being fully rehabilitated at the end of the sentence." (ROS 7-8)
A finding of special circumstances warranting a non-parole period being less than it otherwise would be was made on the basis that it would be the applicant's first time in custody, that he was a person of prior good character, and that he would benefit from a longer period on parole.
The applicant had no prior convictions at the time of the offence. There was one subsequent conviction for an offence of assault occasioning actual bodily harm in 2014 for which he received a community service order. The applicant explained in his evidence that it concerned a fight in a hotel. The judge made no reference to it in his sentencing remarks so it may be assumed that he did not regard it as relevant.

Submissions and response

The overriding submission for the applicant was that the sentencing judge made a finding that the offence fell below the middle of the range of seriousness for offences of its type yet imposed a sentence that would only be appropriate for an offence that was found to be in the middle of the range. (AWS [4])
In written submissions, counsel for the applicant expressly disavowed a contention that the sentence was manifestly excessive. (AWS [5]) However, at the hearing he acknowledged that the issue raised was really this: having regard to the primary judge's assessment of the relative objective seriousness of the offence and the favourable subjective case the sentence imposed was unreasonable or plainly unjust. That is really another way of saying that it is manifestly excessive.
A contention that a sentence is manifestly excessive requires consideration by this Court with the following principles in mind. They are derived from Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]; and Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [55]. (a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. (b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. (c) It is not to the point that this Court might have exercised the sentencing discretion differently. (d) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. (e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
Counsel for the applicant submitted that there were three bases to his contention that the sentence was erroneously severe. They will be discussed in turn.

The finding as to objective seriousness

Counsel submitted that a fair reading of the judgment as a whole indicates that the sentencing judge found that the gravity of the offence, whilst not at the bottom of the range, was substantially (not just trivially or marginally) below the middle of the range. (AWS [25])
Three findings made by the judge were said to support this contention. First, the serious indictable offence committed within the premises was the intentional damage to property which is an offence contrary s 195(1)(a) of the Crimes Act for which the maximum penalty is imprisonment for 5 years. The term "serious indictable offence" is defined in s 4(1) of the Crimes Act as "an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more". Thus, the sentencing judge included in his assessment that "the serious indictable offence alleged was itself one that fell at the bottom of the range of offences that fit that description". (ROS 5.2)
Secondly, the judge said that the seriousness of the offence depended, at least in part, upon what the offenders contemplated would be the injury inflicted by the weapon used. Here, it was a weapon designed to disable, not to kill or cause serious injury. (ROS 5.5)
Thirdly, the judge found that the fact that the applicant was motivated in carrying out the offence by a desire to assist his sister, believing (albeit mistakenly) that she had been mistreated in some way by Mr Kuru, lessened the seriousness of the offence. The judge observed that it would have been a more serious offence if the reason for it was "to steal or obtain drugs or any other number of things". (I note that he also said that "the Court does not endorse any form of vigilantism".) (ROS 6.9-7.3)
The problem with this contention is that the judge embarked upon his consideration of matters relevant to the objective seriousness of the offence by first stating: "this in my view is a serious example of this type of offence". He then mentioned the three matters relied upon by the applicant. He also mentioned the psychological harm caused by the offence, referring in particular to Ms Kuru's victim impact statement, but concluded that such harm was not an aggravating factor because it was what would be expected to arise from such an offence. It was at the conclusion of his discussion of these matters that the judge announced his finding that "the offence falls below the middle of the range of seriousness for this type of offence".
I accept the Crown's submission in relation to this issue. The judge was doing no more than explaining why this "serious example of this type of offence" was nonetheless "below the middle of the range". If he was of the view that it was substantially below the middle of the range (as the applicant contends) it might be expected that he would have said so, but he did not.

Statistics

Counsel for the applicant informed the Court that Judicial Commission sentencing statistics showed that in the seven year period to June 2016, 123 out of 128 offenders had been sentenced to full-time imprisonment. The shortest sentence was 18 months and the longest was 10 years 9 months. The "mid-point sentence" was said to be 5 years 8 months. In relation to non-parole periods, the shortest was 8 months and the longest was 7 years. The "mid-point" non-parole period was 3 years.
While acknowledging the limitations in relying upon statistics, it was submitted that this analysis supported a contention "that the actual sentence imposed reflects a 'middle of the road' result (slightly less than the mid-point as to the full term of the sentence; slightly more than the mid-point as to the [non-parole period]) appropriate where the offence is objectively mid-range, and/or the subjective case for the offender is more guarded or mixed than in the instant case". (AWS [39])
The problem with this submission is the underlying premise that the median in the statistics represents sentences imposed for middle of the range offences, or offences that are less serious but where the subjective case is not as positive as in the applicant's case. Without knowing anything about the facts of the cases that fall at or close to the median, the premise is not established. It would seem most unlikely in any event; experience shows that more offences fall at or below the middle of the range of objective seriousness than those which fall above it.
Little can be discerned from the statistics about subjective cases. They do show, however, that the vast majority of offenders who received a full-time custodial sentence pleaded guilty (107 out of 122). It is likely that many of them received a greater reduction of their sentences than the fairly modest 12.5 per cent that the applicant received for his late plea. Further, 73 out of the 107 who pleaded guilty were relatively young offenders, aged 25 or less (42 were 20 years or less), in comparison to the applicant's more mature age of 29 at the time of his offence.
The statistical analysis by the applicant does not assist him.

Comparable cases

Reference was also made to a schedule of cases involving sentencing for offences against s 112(3) of the Crimes Act that was annexed to the judgment of this Court in De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32; 249 A Crim R 252 ("De Jong v R"). It was submitted that within this schedule "there are enough cases, of adequate general similarity to establish a range of sentences imposed … [for] 'home invasion' style offences where some actual or threatened violence of some sort is visited upon the victim or victims". The cases were also said to demonstrate that the starting point of 6 years adopted by the sentencing judge before the 12.5 per cent reduction for the plea of guilty "is not appropriate to a case which is assessed as being below the middle of the range of objective seriousness, and where the subjective case for the offender is one that works wholly in that offender's favour". (AWS [42]-[43])
On my assessment, a meaningful range of sentences pertinent to the present case cannot be discerned from De Jong v R and the 10 cases listed in the schedule. Generally speaking they involved more serious offending than in the present case. There were pleas of guilty in all but one of the cases and the starting points before discounting were, with only one exception, all higher than here; some considerably higher.
The subjective circumstances of the offenders vary considerably; some were favourable but most were not. Moreover, in some of the cases the offenders had particular subjective circumstances that would have operated to reduce the sentence: for example, the "horrendous" childhood" in R v Chaaban [2006] NSWCCA 107; the very low intellectual ability in R v Baghdadi [2008] NSWCCA 239; and the mental illness in R v Cheh [2009] NSWCCA 134.
A case in the schedule to which the applicant particularly invited attention was the one which attracted the least sentence (and the only one with a starting point below that in the present case): R v Dole; R v Nguyen [2010] NSWCCA 101. It involved a successful Crown appeal where this Court adopted a starting point of 4 years which was reduced to 3 years 4 months. One of the offenders had been suffering from a recurrent, severe major depressive illness with psychotic features and the other had substance abuse issues stemming from violent and on-going abuse by his father.
The other case the applicant particularly focussed on was Aslett v R [2012] NSWCCA 235. The starting point for the sentence was about 7 years 6 months before being reduced by 25 per cent because of a plea of guilty to 5 years 7½ months. The circumstances of the offence in that case were somewhat similar to the present but the applicant's submissions referred to a number of features that rendered the offending more serious and some that rendered it less serious. It was also submitted that a comparison of the subjective cases of Mr Aslett and the applicant operated in favour of the latter. (AWS p11)
At the hearing of the application, counsel for the applicant drew the Court's attention to R v Campbell [2014] NSWCCA 102, which was not referred to in De Jong v R. It involved a single offender who entered his former matrimonial home with a key, obtained a rifle from a gun safe, loaded it and then waited for his estranged wife and her new partner to return home. He pointed the gun at his former wife and there was a struggle during which the gun discharged with a bullet hitting the floor. The new partner rang the emergency number and the offender remained at the premises until police arrived. The offender was 35 years old with a minimal criminal history in the somewhat distant past. There was evidence of his good character. It was accepted that his motivation for the offence was his concerns for his children. This Court upheld a Crown appeal and from a starting point of about 6 years 6 months imposed a sentence of 5 years.
This exercise of comparing the present case with others does not assist the applicant for a number of reasons. First, pointing to a number of more serious cases and the higher sentences most of them attracted says little, if anything, about the sentence in the present case.
Secondly, having regard to the wide variety of subjective circumstances of the offenders it cannot be accepted that a meaningful "range" is established.
Thirdly, the three cases to which particular attention was invited are of limited utility. The one case that attracted a lesser sentence (R v Dole; R v Nguyen) does not assist because (a) it is only a single case; and (b) the offenders had subjective features that called for significant amelioration of their sentences.
Aslett v R was a case warranting a higher sentence on a subjective basis but not clearly so on an objective basis. In any event, the starting point for the sentence imposed was 1 year and 6 months higher than in the present case.
In a broad sense (one cannot be precise) the more and less serious features of R v Campbell appear to balance each other so that it may be regarded as a case which warranted a similar outcome to the present. The starting point in that case was six months higher than for the applicant.

Conclusion

I respectfully agree with the sentencing judge that this was "a serious example of this type of offence". It was committed late at night by six men who forced the locked front door of a family home; a place in which the two adult victims and their three young children were entitled to safety and security. Violence (which was not an element of the offence) was used by the discharge of the stun gun, twice, as Mr Kuru was trying to get away from the men. There was generally aggressive and violent conduct within the home unit by some (if not all) of the men by smashing the kitchen bench and television and damaging an internal door; all of this after they had kicked in the front door. There was a degree of planning in that the applicant gave evidence that he drove from his home in Colyton to Hillsdale (a distance of some 60 km) and picked up the other offenders along the way.
It was open to find that the offence was below the middle of the range of objective seriousness for the reasons the judge gave. However, it would have been erroneous to find that it was substantially below that level and, as I have said, I am not satisfied that his Honour considered that it was.
The applicant's subjective case was a compelling one and it is apparent that the judge accepted it to be so. Nevertheless, it would have been contrary to principle for him to allow it to overwhelm the sentencing exercise. It was necessary for him to assess a sentence that was proportionate to the objective gravity of the offence: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 572 [15] (Spigelman CJ). It was also necessary for him to have regard to the legislative guideposts of the 25 year maximum penalty and the 7 year standard non-parole period as well as the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Of those, general deterrence was important, particularly given the vigilantism underlying the offending.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
GARLING J: I agree with R A Hulme J.

Amendments 05 July 2017 - [16] unintended omission of "not" rectified 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: 05 July 2017

Crimes Act 1900(NSW)ss 4(1), 112(3), 195(1)(a)

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