• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Factual background

5. The plea proceeded by way of an agreed statement of facts, which were accurately referred to in his Honour’s sentencing remarks at [2]–[6] as follows:

6. The facts are agreed and are as follows. The offender and the victim, who I will refer to as NH, had been friends since 2015. At the time of the offences, NH was 72 years old and suffered mobility issues associated with a motor vehicle accident. 3. On 15 September 2018 the offender attended NH's residence to watch the ruby [sic] league grand final. At the end of the game the offender asked NH if he could borrow $150, without specifying what the money was for. NH told the offender he did not have any money to give him, despite having $1250 in his wallet. The conversation between the offender and NH then moved on. 4. The offender subsequently became aggressive towards NH, and NH feared that the offender was going to do something and backed away. Whilst moving backwards, NH fell over. The offender stood over NH and punched him in the face. NH felt immediate pain. 5. A short time later, but while NH was still on the floor, the offender reached into NH's rear trouser pocket and took out his wallet. His wallet contained $1250 in cash, three St George bank cards, some personal papers and a photograph of his mother. The offender took the cash, and subsequently discarded the wallet and left the residence. 6. The Director of Public Prosecutions seeks a reparation order in relation to the $1250 stolen by the offender. Sentencing remarks

7. After referring to the factual basis of the offending the learned sentencing Judge addressed specific considerations relevant to the imposition of the sentences.

8. In respect to the objective seriousness of the offence his Honour found that the assault was not premeditated: it involved a single punch to the area around the victim's eye which caused a mildly displaced fracture of the base of the eye socket, with some minor bleeding and bruising; the victim was a man in his 70s, assaulted by a man in his 40s; and it was inflicted after the victim had fallen over and was less able to defend himself. The sentencing Judge observed that the punch to a 72-year-old victim carried with it a risk of harm much greater than that suffered. The appellant was on bail, for charges of assault, at the time of the offending. His Honour found that the assault was mid-range of the objective seriousness of such offending. He concluded that in relation to the theft, it involved a significant sum of money and took place in the circumstances of the assault, but that it was below the mid-range of objective seriousness.

9. In respect to the appellant’s subjective features the sentencing Judge described the evidence as to his personal circumstances and background, including his upbringing, employment history, substance abuse, psychological assessments and his approach to treatment thus far. In doing so his Honour referred to various reports that were before him detailing relevant information.

10. In consideration of the appellant’s criminal history the sentencing Judge detailed what he described as an “extensive” criminal history which included, from 1995, offences of breaking and entering, assault, larceny, destroying or damaging property, failing to appear, drug offences, demanding money with menaces and traffic offences. He noted the appellant had convictions in NSW, Queensland, SA and the ACT, the latter relating to offending in 2018-2019. He noted that the appellant had at least 10 convictions for assaults of various kinds and had been sentenced to multiple periods of imprisonment.

11. In respect to the guilty plea, it was entered a week before the trial was listed for the second time. His Honour concluded that it warranted a 10 percent reduction in the sentence that would otherwise have been imposed.

12. The learned sentencing Judge noted that the appellant had failed to appear when his trial was first listed and a bench warrant was issued. He was arrested and his bail was revoked. Properly understood, the total time spent in custody solely attributable to these offences was 83 days.

13. His Honour concluded at [24]:

I accept that the consequences of his difficult childhood are likely to be lifelong and must be taken into account in sentencing him. As an adult he has over many years engaged in criminal activity associated with his drug abuse. There appear to be few influences in his life which would lead him towards rehabilitation and lawful conduct. That is certainly reflected in the comments made to the psychologist which I have referred to earlier. There are only very limited periods in his adult life where he has remained free of offending conduct. The offender's criminal history means that he can be afforded little leniency in relation to this offending. His history also means that there is a significant need for specific deterrence and protection of the community. The offending is such that only a custodial sentence is appropriate. Only a sentence of full-time imprisonment is appropriate.

13. His Honour also took into account the issues raised by the appellant in respect to COVID-19 and that given his personal circumstances the appellant may be at greater risk and the conditions in custody would be more onerous. Although he noted that at present there were no identified cases in the system and that the authorities would take significant measures to ensure that did not occur. He also noted that the restrictions on visitors would be of a lesser significance to him than some others. Contrary to the submissions on behalf of the appellant below his Honour did not consider that the cessation of the referrals to the drug and alcohol sentencing list has disadvantaged the appellant having regard to the appellant’s then expressed attitude to rehabilitation. That finding was plainly open on the material before his Honour given the appellant’s comments to the author of the psychological report.

Consideration

14. The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because an appellate court may have a different view as to the appropriate sentence than the sentencing judge: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28], or where the result arrived at below is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [58]. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the statement of the sentencing judge’s reasons: Wong at [58]; Hili at [58]-[59], [75]-[76].

15. To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence prescribed for the offence; the standards of sentencing customarily observed with respect to the offence; the place which the conduct occupies on the scale of seriousness of crimes of this type and the personal circumstances of the offender.

16. The learned sentencing Judge concluded that a custodial sentence to be served by way of a period of full-time imprisonment was the only appropriate sentencing disposition. Given the relevant sentencing principles and the factual findings made, including the objective seriousness of the offence, that conclusion was plainly open.

17. Although the attack was not premeditated, it took place in the victim’s home, the appellant being a friend who had been welcomed into his home. It was deliberate. The appellant had earlier asked the victim for some money which the victim declined stating he had no money. The appellant took advantage of the victim’s vulnerability when he had fallen to the ground. He was 72 years old, and from the ground less able to defend himself. Having struck him such as to fracture his eye socket, and when the victim was obviously injured, the appellant looked for the victim’s wallet on his person and took all his money before fleeing the premises.

18. It is also clear that his Honour has taken into account all the appellant’s subjective circumstances. His Honour’s findings in [24] recited above, were plainly open. However as he concluded, personal and general deterrence were significant considerations in any sentence imposed.

19. The sentencing remarks address each of the matters relied on by the appellant below. The complaint now is really with the result.

20. The appellant’s written submission argues seventeen points which are primarily directed to a proposition that the sentence should have been a lesser one, and it appears a community based sentence. However, as noted above, the issue is not whether a lesser sentence could have been imposed, but rather whether the sentences imposed are manifestly excessive. None of the matters relied on, either singularly or in combination, establish that.

21. That said, five matters raised by the appellant ought to be separately addressed (noting that there was significant overlap in many of the points raised by the appellant).

22. First, the appellant submitted there are factual errors in the description of the offence. However, the factual basis for the sentence was set out in an agreed statement of facts, and the summary provided in his Honour’s reasons is consistent with those facts.

23. Second, the appellant submitted that his sentence should have been backdated to the date he went into custody as a result of his arrest on the bench warrant. However, as the Crown submitted and the learned sentencing Judge made clear, only 83 days of that time was solely attributable to these offences and therefore reflected the appropriate length of time the sentences were to be backdated. Moreover, the appellant’s representative below submitted in writing that 89 days were attributable to this offending. Although slightly inaccurate, it is plain that it was accepted below that only the time attributable to this offending was relevant.

24. Third, the appellant submitted that he was affected by an intoxicating substance at the time of the offending. This was not referred to in the agreed statement of facts. The submissions made on the appellant’s behalf below were directed to his polysubstance addiction, rather than a suggestion that he was intoxicated by illicit substances at the time of the offending. In that context the primary judge referred to the appellant’s drug and alcohol history, and the appellant’s acknowledgement of the correlation between that and his offending conduct. The sentencing remarks reflect that that matter was taken into account. In any event, although a relevant consideration it is not of itself a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [237], [349]. In circumstances where it was not raised on the evidence below, as the Crown correctly submitted, a specific finding as to the role of any intoxicating substance on the offending conduct was not required to be made by the learned sentencing Judge.

25. Fourth, the appellant’s submission that the judge failed to consider his eligibility for a good behaviour bond is misplaced. The sentencing Judge had all the material before him. His Honour’s finding that only a term of imprisonment was appropriate necessarily involved a rejection of other options. As noted above, that conclusion was plainly open. It is difficult to see how any other conclusion could have properly been reached in all the circumstances of this case.

26. Fifth, the appellant relied on fresh evidence which was material not before the sentencing Judge which, for the most part, related to events that occurred after the imposition of the sentences. In the circumstances, that material is not relevant to an assessment of whether the sentence imposed was manifestly excessive. At best it would be relevant on any re-sentence if the appellant established his grounds of appeal: see for example: Schwalm v The Queen [2019] ACTCA 20 at [28]. All the documents were provisionally admitted on that basis. Only one of the items of evidence predates the imposition of the sentences, being a letter from a psychologist dated 2 May 2016. Leaving aside that the letter is somewhat out of date, the appellant’s counsel below did rely on material of that nature including a Forensic Psychological Report dated 11 December 2019 which, due to the proximity of its preparation to the sentence date, was plainly more pertinent to his Honour’s consideration.

27. The respondent’s submission referred to sentencing submissions and comparative cases, albeit properly acknowledging their limited assistance.

28. The use to be made of comparative cases was explained in Hili at [46]-[48], [53]-[57]. Although the use of statistics are of little assistance because they say nothing about the circumstances of the offences: Hili at [55]; Wong at [59], it is recognised, though noting their limitations, that past sentences can provide guidance to sentencing judges “and stand as a yardstick against which to examine a proposed sentence": Hili at [54].

29. In R v Summerfield [2018] ACTCA 20 at [40] this Court summarised the relevance as follows:

Comparison with prior ostensibly like cases may in some cases only meaningfully provide the most general yardstick guidance to the appropriate sentence to be imposed. It often travels no further than general disposition as to whether or not a custodial sentence will be appropriate, and as to the order of magnitude of a sentence, rather than providing any clearer indication as to precise or even approximate sentence duration: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [52], endorsing Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [303]-[305]. Prior cases, especially at the appellate level, may provide valuable guidance in stating the overarching principles to be applied, but will still only give a yardstick indication as to what had been imposed in other cases so as to test the sentence in contemplation. That is the primary value of comparative cases in any event – to advance the quest for reasonable consistency: see Hili at [46]-[48]. While the focus in Hili was on federal sentencing, the principles stated are of more general application.

30. It is important to recognise that offences of theft and assault encompass a broad range of circumstances. Nonetheless, two cases were referred to by the Crown, both first instance sentencing decisions: R v Carberry [2018] ACTSC 341; R v Sikounnabouth [2018] ACTSC 296. Each is different to this case and, as the Crown appropriately acknowledged, is of limited assistance in circumstances where these offences are capable of encompassing a broad range of conduct.

31. Given the maximum penalty for each of the offences, applying the relevant sentencing principles to the facts, including the appellant’s personal circumstances, it has not been established that the sentences imposed are manifestly excessive. The sentences are not unjust or unreasonable.

32. That said, it is appropriate to note that while not a ground of appeal, the aggregate sentence is not manifestly excessive. The learned sentencing Judge correctly considered the appropriate sentence for each offence and then turned to questions of concurrency/accumulation and totality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [47]. Rather, favourably to the appellant in the circumstances, there is a significant degree of concurrency between the sentences, with only six weeks of the sentences to be served cumulatively.

33. There being no error established in either sentence it follows that the appeal must be dismissed.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Loukas-Karlsson and Justice Abraham.

Associate:

Date: 18 August 2020