Hunter v R

Court of Criminal Appeal (NSW)|2020-10-26|Before: Hoeben CJ, Harrison J, Ierace J

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.
HARRISON J: Ricky Edward Hunter seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed on him by her Honour Judge English at the Campbelltown District Court on 24 July 2019. Mr Hunter had pleaded guilty to an offence of specially aggravated break, enter and commit a serious indictable offence, namely assault occasioning actual bodily harm, the circumstances of special aggravation being intentional wounding, contrary to s 112(3) of the Crimes Act 1900. That offence attracts a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. Mr Hunter asked that a charge of common assault against a different victim be taken into account on a Form 1.
Her Honour sentenced Mr Hunter to imprisonment for 6 years commencing on 24 July 2019 with a non-parole period of 4 years expiring on 23 July 2023. Mr Hunter relies upon the following grounds of appeal: Ground 1: Her Honour erred in law by engaging in two-tier sentencing. Ground 2: Her Honour erred in considering the Form 1 matter only after having applied the 25% discount for a plea of guilty to the offence on the indictment. Ground 3: There was a material error in her Honour's fact finding on remorse and some benefit should have been attributed to Mr Hunter's remorse. Ground 4: The sentence imposed is unreasonable or plainly unjust.

Background facts

Mr Hunter had been in an ongoing domestic relationship with Shannon Durnin, the victim of the Form 1 offence, for approximately three and a half years. He had been friends with John Cameron, the victim of the offence on indictment, for some 25 years. Mr Hunter and Ms Durnin lived in separate premises. From 30 August 2018 to 1 September 2018, Mr Hunter had been helping Ms Durnin to move house. At approximately 6.30am on 2 September 2018, Mr Hunter tried to contact her by phone. Ms Durnin did not answer his calls. Mr Hunter then went to Ms Durnin's new premises at approximately 7.25am. She was at home with Mr Cameron at that time.
Mr Hunter knocked on the door and heard two voices coming from inside that he recognised as belonging to Ms Durnin and Mr Cameron. Assuming Ms Durnin was cheating on him with Mr Cameron, Mr Hunter demanded that Ms Durnin come outside. When neither Ms Durnin nor Mr Cameron responded to his calls, Mr Hunter obtained an axe from the shed at the rear of the property. He used the axe to break the glass panels in the front door. He looked through the opening he had created and saw Ms Durnin and Mr Cameron in the rear of the house. Mr Hunter ran to the side of the house and removed a flyscreen from a bedroom window. As he was doing so he noticed Mr Cameron closing that bedroom door. Mr Hunter ran back to the front door and used the axe to break the door handle. As he entered the house, Ms Durnin ran to the bathroom and made the first of three calls to triple-0.
Mr Cameron picked up a cane chair to defend himself as Mr Hunter advanced on him, wielding the axe. Mr Hunter swung the axe towards Mr Cameron multiple times. A number of these made contact with the chair Mr Cameron was using to defend himself. One of the strikes caught the middle finger on Mr Cameron's left hand. Mr Hunter then grabbed a piece of timber from the lounge room and used that to hit Mr Cameron on the left forearm. As a result of the attack, Mr Cameron was admitted to hospital. His left forearm was fractured. The middle finger on his left hand was also fractured and had a 3 centimetre laceration which required suturing.
Mr Hunter then walked over to the bathroom where Ms Durnin was hiding. He grabbed her by the hair and dragged her out of the bathroom. He demanded to know what was going on between Ms Durnin and Mr Cameron. Mr Hunter was inside the premises for about 10 to 15 minutes.
At approximately 7.40am that same day, police located Mr Hunter a short distance away and he was arrested. The axe was located in the back yard of a house near where Mr Hunter was arrested.
Mr Hunter participated in an ERISP. He told police that he saw red when he saw Mr Cameron standing next to Ms Durnin in the house. After trying unsuccessfully to enter the house through the front door and a side window he used a hammer to break the lock on the front door to enter the premises. He hit Mr Cameron with the hammer. Mr Hunter said that he grabbed a piece of timber and hit Mr Cameron on the arm with it. He denied dragging Ms Durnin out by her hair. He said that he did not touch her at all. Nor did he have any conversation with her.
The hammer was a block hammer similar to those used by bricklayers: it had a sharp serrated edge. He dumped the hammer in a backyard as he walked out.

Subjective findings

Her Honour gave close and detailed consideration to Mr Hunter's subjective case. The following extracts from her remarks on sentence are relevant: "The offender is 48 years of age. He gave evidence on sentence. He was referred to Duffy Robilliard Psychologists for assessment by his solicitor and a report under the hand of Ms Therese Davies had been tendered. A sentence assessment report has also been prepared and tendered. He is someone who has regularly been employed throughout his life, principally as a scaffolder. He has abused drugs for a number of years and he has been addicted to gambling. He commenced to smoke cannabis at the age of 17 and he used regularly until he was 34 years of age. In around 1994 he commenced to use 'speed' and his addiction reached a stage where he was smoking 20 cones a day. He stopped using drugs when drug testing was introduced at his workplace but he commenced to use small quantities of cocaine. He contracted Bell's palsy whilst snorting cocaine. He continues to use cocaine. He ceased using ice when it was impacting upon his ability to see his son on a regular basis. He would also consume alcohol socially. Gambling has always been a difficulty for him. He reportedly spent $90,000 on a work payout on drugs and gambling during 2013. He says he does not have any gambling debts, but he can spend his whole pay packet on drugs, alcohol and gambling. Abusing ice increased his gambling addiction. He reports being short tempered. He has participated in ten sessions of anger management as a result of a previous court order. That apparently helped him to control and diffuse his anger. He has never attended drug or alcohol rehabilitation. He has a criminal record. He has convictions for offensive language, assault, driving whilst licence cancelled, low range drink driving, driving with high range prescribed concentration of alcohol, driving unlicensed, stalking or intimidation, contravening a prohibition in an apprehended domestic violence order, assault officer in the execution of duty, resist officer in the execution of duty and two further drink driving offences. Certainly nothing as serious as this matter on his record. He says the night before this incident he had consumed a gram of ice and had three alcoholic drinks. He had received a call in the early hours of the morning that Ms Durnin was in the company of Mr Cameron. The offender says he became paranoid and he went to her house. It was dark so he sat in the shed in her backyard until he heard voices. He says he knocked on the door and he asked her to let him in. When Ms Durnin would not let him in he went to the shed and he got the axe. When he looked inside and saw Mr Cameron through the slit in the door with no short or shoes on that led him to commit the offences with which he has been charged. He says at the time he was feeling angry, hurt and betrayed. He says after he struck the victim and realised what he had done he felt shocked. He felt worse after he discovered Ms Durnin had asked Mr Cameron to come to her house. He is bitter that he never got to explain his side of the story to Ms Durnin. Since the incident he has been denied access to his son. He says nothing like this will ever happen again. If it were he would 'go home, calm down and think it through'. He would not 'explode' to the extent he 'exploded' on this occasion. He has expressed a desire to regain access to his son and to cease using drugs, to continue to work and to live a normal life. The offender completed the Millon Clinical Multiaxial Inventory Personality Questionnaire. He had elevated scores on schizoid antisocial and negativistic passive aggressive scales. Typical for someone who is a loner and maybe detached, distant and lack sociability. The anti-social aspects of his profile suggest he may be prone to impulsive displays of anti-social feelings including aggression, dominance and acting without considering the consequences. His test results following screening for depression indicated a moderate score for depression and a mild score for anxiety and stress. All of his scores lay above the normal range. He is said to have a substance abuse disorder. In the opinion of Ms Davies a number of factors contributed to the offending behaviour, namely his long term drug abuse. In particular his use of ice and the impact of that drug upon him, his quick temper, his volatile relationship history and concerns of the trial and lack of trust in others. Whilst he reports a stable childhood his relationship history has been tumultuous and volatile. A range of psychological treatments are recommended and they are set out in Ms Davies' report. When relationships broke down there is often emotion involved and sometimes ex-partners react in a way that they might not have done had they been calm and detached. The relationship between the offender and Ms Durnin had broken down. Unfortunately for his two victims a combination of factors made it likely he was going to commit an offence of this kind when he became aware of the presence of Mr Cameron in Ms Durnin's house. Those circumstances or factors were his short temper, his abuse of illicit substances in particular ice, his feelings of betrayal and his history of past failed relationships."

Ground 1

Mr Hunter relied upon her Honour's remarks on sentence in support of this ground when she said the following: "I find nothing other than a fulltime custodial penalty will suffice. This is a matter which attracts a standard non-parole period. Despite my finding that it is an offence falling at the midrange of objective seriousness I will depart from imposing the standard non-parole period having regard to the offender's age, his long-standing drug addiction, his lack of serious criminal antecedents of a like nature and the fact that he entered a plea of guilty at the earliest opportunity for which I allow him a 25% discount. It does of course have utilitarian value and it demonstrates contrition."
Mr Hunter submitted that at first glance it appears from this passage that her Honour was, as Payne JA similarly found in GP v R [2016] NSWCCA 150 at [63], "doing no more than complying with the statutory obligation imposed upon her by s 54B(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to record her reasons for setting a non-parole period which was less than the standard non-parole period fixed for such an offence, and the factors taken into account". In reality her Honour's words indicate that she accorded the standard non-parole period "determinative significance" contrary to principle: see KG v R [2012] NSWCCA 10 at [19].
However, it is important in this context to read the remarks of a sentencing judge completely before coming to a view, based only on part of the remarks, that an illegitimate two-stage approach to the sentence has been adopted. Having regard to her Honour's sole reference to the standard non-parole period that applied in this case, it is somewhat difficult to conclude that her Honour afforded it any significance at all, let alone determinative significance. The non-parole period that her Honour specified was 4 years, a considerable departure from the standard non-parole period of 7 years. Viewed dispassionately, it does not appear that her Honour's reference to it was any more than passing. There does not appear to be any necessary relationship between the sentence of 6 years or the non-parole period of 4 years and her Honour's reference to the standard non-parole period of 7 years. This Court should in my view be slow to assume or conclude in a particular case that any otherwise apparently innocuous reference to the applicable standard non-parole period somehow persuasively enlivens a genuine concern that the sentencing judge has fallen into error. More is required, such as an evident and inappropriate reliance upon the importance of the standard non-parole period so as to suggest that it erroneously influenced the sentencing discretion.
The Crown submitted, and I accept, that this case is substantially similar to GP v R and that when her Honour's reasons are read fairly and analysed as a whole, it is clear that her Honour gave careful consideration to the relevant objective and subjective factors, as she was required to do, and that she did not engage in a two-stage sentencing exercise.

Ground 2

The relevant passage in her Honour's remarks on sentence to which Mr Hunter draws attention are as follows: "Taking into account the matter placed on the Form 1 which calls for an increase in the penalty to be imposed to reflect the serious nature of that domestic violence related offence, I sentence you to a non-parole period of four years…".
Mr Hunter contends that her Honour impermissibly took the Form 1 offence into account only after applying the discount for the plea of guilty and making a finding of special circumstances. That submission draws support from the fact that the Form 1 offence of common assault was not referred to until the end of her Honour's remarks. The submission proceeds upon the basis that because of where reference to the Form 1 offence appears in her remarks, the increase in the sentence imposed by reason of the Form 1 necessarily constituted the final step in the sentencing process.
Implicit in the Crown's response to this ground of appeal is the concession that such an approach, if established, would constitute error: see Huang v R [2019] NSWCCA 144. In that case, upon which Mr Hunter relies, the sentencing judge imposed a head sentence of 14 years, then applied a 25% discount for the plea of guilty, but then explicitly increased the sentence by one year as a consequence of the Form 1 matters.
In the present case, by contrast, all that her Honour did at the conclusion of her remarks was to confirm that the Form 1 offence had been taken into account in the sentencing exercise and to indicate its effect on the sentence for the principal offence. Her Honour's approach to the Form 1 offence was therefore conventional and consistent with the guideline judgment in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.
Moreover, as the Crown has submitted, the Form 1 offence was "intrinsically connected to the offence on the indictment". That was because the assault on Ms Durnin occurred in the course of Mr Hunter breaking into her home and causing injury to her companion. Her Honour referred to the assault at several points in her remarks in that very context. Indeed, reference to Mr Hunter's request that the Form 1 matter be taken into account appears on the first page of her Honour's remarks and at several places thereafter. The facts supporting the assault charge were included in the description of the facts relating to the principal offence and were referred to by her Honour when considering the objective seriousness of that offence.
Mr Hunter's contention that her Honour erroneously increased his sentence by referring to the Form 1 offence in effect as an additional step in the process is not supported by a reading of her Honour's remarks as a whole.

Ground 3

Her Honour referred to the issue of Mr Hunter's remorse in her remarks on sentence in the following terms: "I find he has demonstrated no genuine remorse or insight into the impact of his offending behaviour upon his victims. Other than to the extent that his plea demonstrates contrition I am unable to find him genuinely remorseful or truly contrite. I find it difficult to severe [sic, sever] remorse from self-interest. His concern is the impact his offending has had on his ability to see his son and upon his parents and sister. He says he did not think he had a problem with illicit substances. It is only recently he has ceased taking drugs altogether. Once again that demonstrates a total lack of insight into the extent of his problems."
Mr Hunter referred to the transcript of the sentencing proceedings in which he gave evidence and specifically did so with respect to the topic of remorse. That material was clearly before her Honour. There can be no suggestion that she did not have specific regard to it.
Mr Hunter was also examined by Ms Therese Davies, a psychologist, whose report was tendered. Ms Davies noted that Mr Hunter was "sorry for what he has done but still lacks some insight as regards the appropriateness of his behaviour when he attacked [his former girlfriend] whom he perceived as 'cheating on him'." There is no suggestion that her Honour did not have specific regard to Ms Davies report as well.
The burden of Mr Hunter's complaint is that her Honour should have given "some weight" to Mr Hunter's expressions of remorse and that it was a specific House v The King error for her not to have done so. That submission is in truth no more than a contention that her Honour failed to give sufficient weight, or should have given more weight, to his expressions of remorse. Properly understood, Mr Hunter is saying no more or less than that her Honour should have decided the issue differently, and specifically more favourably to him. That is a complaint about the result without demonstrating error with the process. Her Honour's judgment on the question of the existence or absence of remorse was a discretionary consideration and classically within the range of matters that she was required to judge. Mr Hunter has not demonstrated that her Honour failed to consider the matter: her remarks make it clear that she had specific regard to the issue. This is not a case of a failure to have regard to a relevant material consideration.

Ground 4

Recently, in Cunningham v R [2020] NSWCCA 287 at [36] and [37], Hoeben CJ at CL recounted the well-established principles: "[36] The principles relevant to a ground of manifest excess are well known and were summarised in Hughes v R [2018] NSWCCA 2 at [86] by this Court (Payne JA, R A Hulme and Garling JJ) as follows: '86 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) 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; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) 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; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.' [37] In Kerr v R [2016] NSWCCA 218 at [113] Bathurst CJ (with whom Hoeben CJ at CL and Price J agreed) said: '113 The circumstances in which a sentence will be found to be manifestly excessive are well established. The Court will only intervene if the sentence is unreasonable or plainly unjust, such that the Court may infer that in some way there has been a failure of the sentencing judge to properly exercise the sentencing discretion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [59]. In that context, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29'."
Mr Hunter's contention under this ground of appeal relies first upon a consideration of sentencing statistics from the Judicial Information Research System (JIRS) and secondly upon a review of what is submitted to be comparable cases.
Mr Hunter submitted that, having regard to the statistics, there have been 18 sentences imposed for s 112(3) offences since Muldrock, from 24 September 2018 to June 2019. Of those, three were given intensive corrections orders and the balance resulted in sentences of full-time imprisonment. Of those 15 matters, only one was a case also involving offences on a Form 1. Offenders in 9 of those 15 cases were sentenced to a term of imprisonment of 4 years or less and in 11 cases to a non-parole period of 3 years or less.
Mr Hunter also referred to two decisions of this Court which he submitted "stood out" in the present context. He made the following submissions.
R v Campbell [2014] NSWCCA 102 was a Crown appeal against sentence. The respondent was the estranged husband of the principal victim. He broke into the home of his estranged wife and obtained a gun that he used to then threaten his wife and her partner. During a struggle over the gun, the wife was injured and the gun discharged a bullet into the floor. As a result of the struggle, the wife suffered injuries to a rib and bruising. It was found there was a degree of planning involved. The initial sentence, after allowing a 25% discount for the plea of guilty, was of 3 years with a non-parole period of 1 year and 10 months for the s 112(3) offence, with 9 months to be served concurrently for the offence of assault occasioning actual bodily harm (for the injuries the wife suffered during the struggle over the gun). Allowing the Crown's appeal, the sentence was increased for the s 112(3) offence to 5 years with a non-parole period of 3 years but the sentence of imprisonment for 9 months for the assault occasioning actual bodily harm was upheld with an additional 3 months of accumulation, so as to commence 3 months prior to the s 112(3) sentence. The total term of imprisonment for both offences was therefore 5 years and 3 months with a non-parole period of 3 years and 3 months.
Harper v R [2017] NSWCCA 159 was an appeal against sentence. Six men forced the locked front door of a family home in which the two adult victims and their three young children lived. Violence, which was not an element of the offence, was used by the discharge of a stun gun as the father tried 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 conceded that he drove 60km from his home to where the offence occurred and picked up the other offenders along the way. The appeal against sentence, after allowing a 12.5% discount for the plea of guilty, of 5 years 3 months with a non-parole period of 3 years 3 months was dismissed.
It is evident from her Honour's remarks in the present case that she had regard to a number of significant factors. The legislative guideposts were a maximum penalty of 25 years and a standard non-parole period of 7 years. The offence on the Form 1 called for an increase in the penalty to be imposed to reflect the serious nature of the domestic violence related offence. The offence was a "home invasion" and damage was caused to it. There was some planning although it was limited. Mr Hunter was armed with an axe and after the initial assault on Mr Cameron, armed himself with a second weapon and continued the assault. Mr Hunter had a criminal history that disentitled him to leniency. Favourably to him, Mr Hunter was given an extended period of supervision on parole, supporting a finding of special circumstances, so that the non-parole period is 66.67% of the head sentence.
Mr Hunter submitted in terms that it was "clear that the sentence imposed…is at the upper end, rather than well within the range of sentences imposed for such matters". He drew support from the remarks of the Chief Judge in Medcalf v R [2016] NSWCCA 209 at [50] as follows: "Even allowing for the relatively blunt nature of statistics, the fact that these sentences were at the very top of those passed over the last 8 -10 years, while not decisive, is relevant and important."
The Crown emphasised that even accepting Mr Hunter's submission that the sentence imposed was "at the upper end, rather than well within the range of sentences imposed for such matters", it does not establish that the sentence was manifestly excessive. Her Honour's conclusion was that the offence fell at the mid-range of objective seriousness. The Crown submitted that, to the limited extent that the statistics and comparable cases suggest any discernible range for offences of this type, they do not demonstrate that the sentence imposed fell outside that range.
It does not seem to me that the sentence imposed by her Honour was manifestly excessive, in the sense that it was unreasonable or plainly unjust. Taking account of the available comparable cases and statistics, it is true that the sentence falls at the more severe end of the "range" that the statistics appear to establish. However, it would be a mistake to conclude, for example, that the highest sentence imposed in that range for offences of this type was by definition more likely to be manifestly excessive than a lower sentence in the same range. That is precisely the reason that the cases emphasise the limited use to which these statistics can be put. As trite as it is to say so, each case must necessarily depend upon its own facts. The sentence imposed by her Honour in this case is not in my view relevantly or disproportionately higher than other sentences imposed for like offences. In the present case, Mr Hunter received no assistance from his criminal record. Her Honour concluded that he was not remorseful. The offence clearly involved planning. Although the description "home invasion" is not a legal term of art, her Honour resorted to it as a means of emphasising her view of the seriousness of the conduct with which she was required to deal. I am not satisfied that her Honour's decision is out of step with other similar cases, but in any event, appellate intervention is not compelled simply because the result below is markedly different to other sentences.
I consider that this ground of appeal is not made out.

Orders

I propose the following orders: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal.
IERACE J: I also agree with Harrison J and the orders that he proposes.

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