Hawke v R

Court of Criminal Appeal (NSW)|2010-06-21|Before: Hislop J, Barr AJ, Clellan CJ

JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 2; Barr AJ at 37

DECISION: (1) Grant leave to appeal; (2) Allow the appeal; (3) Quash the sentence and in lieu thereof impose the following sentence: imprisonment for a non parole period of 18 months commencing on 25 May 2009 and expiring on 24 November 2010, with a balance of term of 18 months expiring on 24 May 2012. Direct the release of the applicant on parole at the end of the non parole period (24 November 2010).

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act, 1999

R v De Simoni (1981) 147 CLR 383 Veen v The Queen (No 2) (1988) 164 CLR 465 R v Close (1992) 31 NSWLR 743 CASES CITED : R v Cook [1999] NSWCCA 234 McCabe v R [2006] NSWCCA 220; (2006) 164 A Crim R 344 Lukenic v R [2008] NSWCCA 250 Sultana v Regina [2007] NSWCCA 107

COUNSEL: W. Hunt (Applicant) D. Arnott SC (Crown)

SOLICITORS: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2009/1469

McCLELLAN CJ at CL HISLOP J BARR AJ

Friday 6 August 2010 DEAN RICHARD HAWKE v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HISLOP J: The applicant pleaded guilty to the offence of robbery in company contrary to the Crimes Act 1900, s 97(1). The maximum penalty for such an offence is 20 years imprisonment. The applicant also asked the court to take into account on a Form 1 an offence of assault occasioning actual bodily harm in company. The maximum penalty for such an offence is imprisonment for seven years. There is no standard non parole period applicable to either offence. 3 On 5 June 2009 the applicant was sentenced in relation to that offence in the District Court to imprisonment for a non parole period of 18 months commencing on 5 June 2009 and expiring on 4 December 2010, with a balance of term of 18 months expiring on 4 June 2012. A co-offender was sentenced with the applicant. 4 The applicant has sought leave to appeal against that sentence on the grounds that: "1. The sentencing Judge erred in having regard to the use of 'actual violence' prior as an aggravating circumstance for purposes of s21A(2)(b) of the Sentencing Act. 2. The sentencing Judge erred in having regard to the applicant's prior record as an aggravating circumstance for purposes of s21A(2)(d) of the Sentencing Act. 3. The sentencing Judge erred in having regard to substantial emotional harm as an aggravating circumstance for purposes of s21A(2)(g) of the Sentencing Act. 4. The sentencing Judge erred in failing to have regard to the appropriate date on which the sentence ought to have commenced. 5. The sentencing Judge erred in failing to have regard to principles of totality in calculating the length of sentence and in failing to consider partial accumulation of the sentence on the prior sentence the applicant had been serving." 5 The facts of the offence as stated by the sentencing judge in his remarks on sentence were: "[The victim]…attended a hotel in Leeton and left around midnight. He saw a large group of people which included the prisoners. As he walked past the group, somebody asked him if he was Craig. He replied in the negative and kept walking. Another voice asked, 'Did you call us dogs?'. He said, 'No.' The man who had first spoken said, 'Did you call me a dog?' and he again denied it. The prisoners and their accomplice followed [the victim] into another street, asserting that he had called them a dog. Members of the group of three punched him around the head. He fell to the ground, was assaulted to his head and body, and in the course of that he was relieved of his wallet and its contents." 6 The applicant was born in March 1989. He did not give evidence on sentence. 7 His Honour found:

(a) The offence fell "well towards the lower end of the range of offences. Nevertheless, it evinced horrifying thuggery";

(d) The applicant had a tough start in life. He had a limited work history and he had alcohol and drug issues and was presently in protective custody;

(e) The applicant had a criminal record though the offences looked more like stupid rebellion than commitment to a violent and dishonest lifestyle;

(f) It was difficult to form any assessment of the applicant's remorse;

(h) There were special circumstances by reasons of the applicant's youth and prospects of rehabilitation;

(i) The applicant had pleaded guilty at a time which entitled him to "the maximum reduction of penalty on account of a plea of guilty".

Grounds 1, 2 and 3 8 Grounds 1, 2 and 3 are drawn from a short paragraph contained in the remarks on sentence as follows: "Among the aggravating factors, there was actual violence. Each has a record of previous convictions. It is very likely that attacks of this kind would cause substantial emotional injury to the victims."

Ground 1: The sentencing Judge erred in having regard to the use of 'actual violence' prior as an aggravating circumstance for purposes of s21A(2)(b) of the Sentencing Act. 9 The applicant submitted

(a) his Honour's comment "among the aggravating factors, there was actual violence" disclosed "error in that the threat or use of violence is an element of the offence of robbery and so his Honour breached the principles set out in R v De Simoni (1981) 147 CLR 383".

(b) his Honour's approach resulted in double counting as his Honour also took into account the actual violence on the Form 1 offence in sentencing the applicant. 10 There were two offences to be considered, namely robbery in company and assault occasioning actual bodily harm in company. As his Honour understood, and the applicant's counsel at the sentencing hearing confirmed, the assault offence related to the "hiding" preparatory to the robbing. 11 His Honour in his remarks on sentence noted that he had been asked to take into account the Form 1 offence. He otherwise made no reference in his remarks on sentence to taking into account that offence. In these circumstances, his Honour's reference to the actual use of violence, fairly read, was a reference to the offence on the Form 1 which his Honour was required to take into account. 12 The De Simoni principle (at 389) is that "a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence." 13 In my opinion there was no breach by his Honour of the De Simoni principle nor did his Honour "double count". 14 This ground fails.

Ground 2: The sentencing Judge erred in having regard to the applicant's prior record as an aggravating circumstance for purposes of s21A(2)(d) of the Sentencing Act. 15 The applicant submitted his Honour erred in taking the applicant's record into account "without explicating the way in which the record was taken into account". 16 His Honour was required to take the applicant's record of previous convictions into account as an aggravating factor in sentencing the applicant - s 21A(2)(d) Crimes (Sentencing Procedure) Act, 1999. 17 The extent to which his Honour could have regard to the record was stated in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477-478. 18 His Honour disclosed how he took the criminal record of the applicant into account: see para 7 above. There is nothing in his Honour's remarks on sentence which indicates he made use of the prior convictions for any purpose inconsistent with Veen (No.2) Rather, the remarks indicate that a benign view was taken having regard to the nature and extent of the record. This ground fails.

Ground 3: The sentencing Judge erred in having regard to substantial emotional harm as an aggravating circumstance for purposes of s21A(2)(g) of the Sentencing Act. 19 The comment relied upon was his Honour's statement "It is very likely that attacks of this kind would cause substantial emotional injury to the victims." 20 The applicant submits:

(a) his Honour erred in referring to "attacks" and "victims" in the plural as the applicant was only liable for one attack and one victim;

(b) there was no evidence the applicant's victim suffered "substantial emotional harm";

(c) the expression "very likely" was an inappropriate evidential standard. The proper standard was beyond reasonable doubt. 21 It is accepted by the Crown that there was no evidence the applicant's victim suffered "substantial emotional harm". The use of the plural when referring to attacks and victims was explicable as a generalisation or by reason that his Honour was sentencing both the applicant and the co-offender, the latter having committed another like offence which was to be taken into account. 22 It is apparent from the terms of his Honour's comment that it should be properly regarded as a generalisation and not, despite his Honour's opening words to the paragraph, as a finding for the purpose of s 21A(2)(g). This ground fails.

Ground 4: The sentencing Judge erred in failing to have regard to the appropriate date on which the sentence ought to have commenced.

Ground 5: The sentencing Judge erred in failing to have regard to principles of totality in calculating the length of sentence and in failing to consider partial accumulation of the sentence on the prior sentence the applicant had been serving. 23 The applicant was sentenced in the Griffith District Court on 30 September 2008 for the offence of drive whilst disqualified from holding a licence. He was sentenced to 12 months imprisonment with a non parole period of four months from 26 May 2008 to 25 September 2008, and a balance of term to expire on 25 May 2009. He was released to parole on 25 September 2008. 24 The applicant was arrested on 23 November 2008 in respect of this offence and bail was refused. He has remained in custody from that date. 25 The applicant was sentenced in Leeton Local Court on 9 December 2008 for the offence of affray. He was sentenced to 15 months imprisonment with a non parole period of five months commencing on 23 November 2008 and expiring on 22 April 2009, the balance of term expiring on 22 February 2010. The applicant was entitled to be released to parole on 22 April 2009 (s 50 Crimes (Sentencing Procedure) Act 1999). 26 On 10 December 2008 the Parole Board ordered that the applicant's parole in respect of the driving offence be revoked and that he serve the balance of six months three days from 23 November 2008, concluding on 25 May 2009. 27 The applicant's sentence in the matter the subject of this appeal commenced on 5 June 2009 when the sentence was imposed. 28 The applicant submitted that the applicant's imprisonment between 25 May 2009 and 5 June 2009 was solely due to the subject offence and that the sentencing judge should have backdated the sentence to 25 May 2009. His Honour did not refer to this matter in his remarks on sentence. 29 The Crimes (Sentencing Procedure) Act 1999 s 47 provides: "(1) A sentence of imprisonment commences: (a) subject… to any direction under subsection (2), on the day on which the sentence is imposed… (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… (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 to which the sentence relates." 30 Section 24 of that Act provides: "In sentencing an offender, the court must take into account: (a) any time for which the offender has been held in custody in relation to the offence…" 31 Other than in exceptional circumstances, if an offender has been held in custody from the date of arrest to the date of sentence solely in relation to the offence for which he is being sentenced, the court will backdate his sentence so that it commences upon the date the applicant went into custody referable to that offence - R v Close (1992) 31 NSWLR 743 at 748, R v Cook [1999] NSWCCA 234 at [39]. 32 In my opinion, the applicant's imprisonment between 25 May 2009 and 5 June 2009 was solely due to the subject offence. There were no exceptional circumstances and his Honour should have backdated the sentence so as to commence on 25 May 2009 - see McCabe v R [2006] NSWCCA 220; (2006) 164 A Crim R 344, Lukenic v R [2008] NSWCCA 250 and Sultana v Regina [2007] NSWCCA 107. 33 It was submitted that having regard to the principles of totality, the sentence should have been further backdated. His Honour had been requested during the sentencing hearing to backdate the sentence to 22 April 2009, being the expiration of the non parole period in respect of the affray offence. His Honour rejected that submission, concluding "I just don't see why I would backdate it." In my opinion, his Honour did not err in the exercise of his discretion to refuse to further backdate the sentence.

Conclusion 34 In my opinion, save for the commencement date of the sentence, no ground warranting the intervention of this Court has been demonstrated nor, in my opinion, was the sentence imposed such that a lesser sentence was warranted in law. 35 The commencement date of the sentence should be adjusted so that the sentence commences on 25 May 2009.

Quash the sentence and in lieu thereof impose the following sentence: imprisonment for a non parole period of 18 months commencing on 25 May 2009 and expiring on 24 November 2010, with a balance of term of 18 months expiring on 24 May 2012. As required by s 50 of the Crimes (Sentencing Procedure) Act 1999, I direct the release of the applicant on parole at the end of the non parole period (24 November 2010). 37 BARR AJ: I agree with Hislop J. **********

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