Kentwell v R [2015] NSWCCA 96 | Case summary

Disposal

As I have indicated, I agree, for the reasons stated by Bellew J in the first appeal, that the grounds of appeal have been made out. It is thus necessary to re-exercise the sentencing discretion.
Rothman J has dealt with the objective seriousness of the offences, the applicant's subjective circumstances and his rehabilitation since his imprisonment in pars [64]-[81] and [94]-[96] below. I agree with his Honour's remarks. Further, I am prepared to accept that the removal of the applicant from his natural parents and his consequent difficulty in adjusting to a "white fella's world" (see the Pre-Sentence Report of Probation and Parole Officer Bryson dated 6 September 2006) is evidence of a deprived background and social disadvantage which may mitigate the sentence, consistent with the principles in Kennedy v R [2010] NSWCCA 260 at [53]; Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [37]-[44]; Neal v The Queen [1982] HCA 55; 149 CLR 305 at 326 per Brennan J.
In the circumstances, I agree with Rothman J that a lesser sentence is warranted in law. Taking into account the matters to which I have referred to above in par [13], I am of the opinion that the following orders should be made.
The orders I would make are as follows: 1. Extend the time for bringing an application for leave to appeal up to and including 28 June 2013. 2. Grant the applicant leave to appeal against the sentence imposed on him on 20 February 2009. 3. Allow the appeal. 4. The sentences imposed by the District Court on 20 February 2009 on the applicant be quashed and the following sentences be passed in substitution therefor: 1. Count 1: recklessly cause grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW), a non-parole period of 3 years and 6 months commencing 6 April 2008 and concluding 5 October 2011 with a remainder of term of 18 months concluding 5 April 2013; 2. Count 3: malicious damage, contrary to s 195(1)(a) of the Crimes Act 1900, a fixed term of 1 month to commence 6 April 2008 and conclude 5 May 2008; 3. Count 4: sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, a non-parole period of 4 years, commencing 2 April 2010 and concluding 1 April 2014 with a remainder of term of 1 year concluding 1 April 2015; 4. Count 5: assault, contrary to s 61 of the Crimes Act 1900, a fixed term of 3 months, commencing 2 April 2010 and concluding 1 July 2010; 5. Count 7: sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, a non-parole period of 4 years, commencing 6 August 2011 and concluding 5 August 2015 with a remainder of term of 4 years concluding 5 August 2019. 1. The overall sentence is imprisonment of 11 years and 4 months consisting of an overall non-parole period of 7 years and 4 months, commencing 6 April 2008 and concluding 5 August 2015, with a remainder of term of a further 4 years concluding 5 August 2019. 2. The applicant is first eligible for parole on 6 August 2015.
ROTHMAN J: Philip Charles Kentwell, hereinafter the appellant, seeks an extension of time to appeal sentences imposed on him. If the extension of time were granted, the appellant seeks leave to appeal and to appeal the sentence. The extension of time, the leave to appeal and the appeal were heard concurrently.
It is necessary to set out the unfortunate litigious history of this matter. On 20 February 2009, the appellant was sentenced by Johnstone DCJ in the District Court at Parramatta for a number of offences. The sentence for each offence occurred after a guilty verdict by a jury. For one offence with which the appellant was charged (Count 6), the jury returned a verdict of not guilty.
The charges and sentence imposed were as follows: "Count 1: Recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900, the maximum penalty for which is imprisonment for 10 years and the standard non-parole period for which is 4 years' imprisonment and for which the appellant was sentenced to a fixed term of imprisonment of 4 years to commence on 6 April 2008 and to expire on 5 April 2012; Count 2: Was an alternative Count to Count 1 and therefore does not need consideration. Counts 3 and 6: Malicious damage contrary to s 195(1)(a) of the Crimes Act 1900, the maximum penalty for which is imprisonment for 5 years and as a result of the not guilty verdict in relation to Count 6, the appellant was sentenced only for Count 3 to a fixed term of imprisonment of 1 month to commence on 6 April 2008 and to expire on 5 May 2008; Count 4 and 7: Sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900, the maximum penalty for which is imprisonment for 14 years and the standard non-parole period for which is 7 years' imprisonment, and for which the appellant was sentenced, in relation to Count 4, to a fixed term of imprisonment of 7 years to commence on 6 August 2008 and to expire on 5 August 2015, and in relation to Count 7 a term of imprisonment of 11 years comprised of a non-parole period of 7 years to commence on 6 April 2009 and to expire on 5 April 2016, with a balance of term of 4 years to expire on 5 April 2020; Count 5: Assault, contrary to s 61 of the Crimes Act 1900, the maximum penalty for which is two years' imprisonment and for which the appellant was sentenced to a fixed term of 3 months' imprisonment to commence on 6 December 2008 and to expire on 5 March 2009." (ROS)
Initially, there was no appeal against sentence. It is appropriate to note, at this juncture, that the sentencing remarks relied upon the approach to standard non-parole period arising from the judgment of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. No application for leave to appeal was filed within time, although a Notice of Intention to Appeal against Conviction and Sentence was filed and not pursued. The circumstances of that situation are set out in Kentwell v R [2013] NSWCCA 266 at [7] (the first appeal judgment).
Following the judgment of the High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, the appellant sought leave to appeal out of time for "Muldrock error", namely the sentencing judge's application of the judgment of the New South Wales Court of Criminal Appeal in R v Way, which approach was disapproved in Muldrock. It should be borne in mind that the sentencing judge was, at the time of sentence, bound by the judgment in R v Way. The High Court had earlier refused leave to appeal in R v Way.
The application for extension of time came before the Court and was dealt with by judgment dated 14 November 2013: the first appeal judgment. The extension of time was refused. From that judgment the appellant successfully appealed to the High Court of Australia. The order of the High Court of Australia set aside the first appeal judgment and remitted the application for extension of time to the Court for determination. Facts
The first appeal judgment summarised the facts relating to the matter, which summary is taken from the Remarks on Sentence. No issue is taken with the summary, which is in the following terms: "[12] At the time of the offending, the applicant had known the victim for about four years. From about January 2007 they formed an intimate relationship as a result of which the applicant would stay over at the victim's premises four or five nights per week. In August 2007 the victim made a complaint to the police about the applicant and he was charged with various offences including assault, stealing and contravening a domestic violence order. He was released on bail and thereafter renewed his relationship with the victim. [13] On the afternoon of 29 October 2007 the applicant went to the victim's home when he was affected by alcohol. When the victim was in the kitchen making coffee, the applicant approached her from behind and poured liquid over her head. Without warning he then smashed a beer bottle over her head causing her to fall to the floor. As the victim lay on the floor the applicant kicked her several times in the ribs, causing her immediate pain and difficulty breathing. The applicant refused the victim's request to call an ambulance. [14] The victim tried to leave the premises and told the applicant she was going to her sister's. As she walked outside the applicant grabbed her by the hair and pulled her to the ground. He then kicked her in the chest area and pulled her back inside. Once inside the applicant again kicked the victim before ordering her to get up. [15] There then followed an interlude as the applicant tried to comfort the victim, telling her to sit next to him on the couch. The victim did so out of fear but within a short period the applicant started yelling at her and began to throw various objects within his reach including the victim's mobile phone, remote controls for the television and DVD player, an ash tray and a glass candle holder that smashed at the other end of the room. [16] When the victim went over and knelt down to pick up the smashed candle holder the applicant again attacked her, hitting her over the head and shoulders with a metal bracket from an air conditioner. The applicant then appeared to calm down and sat in the lounge room. Because she was in fear of the applicant, the victim did not leave the premises or contact the police. She continued to experience difficulties with her breathing, her head was sore, she was aching and she felt nauseated. She went to the bathroom and showered before getting into bed. [17] The applicant then called out to the victim from the lounge room asking if she wanted a "doorey", which meant sex. The victim said no. Over the course of the next few hours the applicant repeatedly requested sex, and the victim repeatedly refused. [18] The applicant then came into the bedroom. The victim again told him that she did not want to have sex as she was in too much pain from the earlier assaults. The applicant said: Fucking girls only have to spread their fucking legs. It won't hurt. [19] The victim did not want to have sex with the applicant but at this time could see that he was not going to stop his demands. Accordingly, she said to him: If you do it just get it over and done with quickly. [20] The applicant then removed the victim's underpants and commenced penile intercourse by penetrating her vagina from behind. The applicant was much larger than the victim and as a consequence, she was affected by his heavy weight and experienced severe pain. She begged the applicant to stop and she started to cry. The applicant allowed her to move into a foetal position but did not stop the intercourse and told her to "stop blubbering". The applicant continued to have penile/vaginal sexual intercourse until he ejaculated. [21] After the intercourse had ended, the applicant remained in the bed. The victim attempted to sleep but was unable to do so because of her pain. She did not leave as she was in fear of the applicant and as the night continued her breathing was laboured. The applicant complained that she was making too much noise and told her to "shut up". [22] The following morning the applicant awoke at about 7.30 am and asked for sex. The victim replied: No Didge, I can't because I can't do this. You can't keep doing this to me anymore. [23] The applicant then left the premises, following which the victim sought treatment from a medical centre. She was diagnosed (without X-Rays being taken) as having fractured ribs and was told to take painkillers. She returned to her home and went back to bed. [24] On 2 November 2007 the victim saw her General Practitioner. X-Rays taken on that occasion established that she had fractures to her fifth, sixth and seventh right ribs, as well as to her fourth left rib. There was also evidence of trauma to her fifth and sixth left ribs. [25] Later that same afternoon, the applicant arrived at the victim's premises with a companion named Nash. The applicant and Nash started drinking in the lounge room and as the applicant became affected by the alcohol he started to accuse the victim of sleeping with Nash. The victim denied this allegation and told Nash to leave. The applicant and the victim sat together on the lounge, at which time the applicant began igniting a cigarette lighter on and off, at one point applying the flame to the victim's forearm. After she pulled her arm away the applicant began lighting small pieces of paper on the coffee table before beginning to hit the victim whilst calling her a "fucking mole" and a "whore". He then started to twist her arm, at which time she retreated to the bathroom. The applicant continued to accuse the victim of having "sex with wogs" before telling her to "get her arse out of the bathroom". The victim went back into the bedroom where the applicant grabbed her and held her up against the wall next to a cupboard. [26] The applicant then said he wanted something to eat, at which point the victim made a meal for him, before going to bed. The applicant then asked her for sex. The victim repeatedly said she did not want to, telling the applicant she was in too much pain. The applicant responded by saying: Just spread your legs. That's all you have to do. [27] The victim again told the applicant that she was unable to breath properly and that the pain was too much, to which the applicant responded: You won't feel it. [28] Feeling that she had no choice, and although she did not want to have sex with the applicant, the victim said: Just get it over and done with please and hurry. [29] The applicant then commenced to have penile vaginal sex with the victim as she lay on her stomach. As he did so, the victim experienced severe pain to her injured ribs and chest, telling the applicant: I don't want to do it …. I've got broken ribs …. Didge I can't do this. I can't do this anymore. I can't. [30] The applicant ignored these pleas, and continued until he ejaculated. [31] On 6 November 2007 the applicant again sought medical attention and on this occasion disclosed that she had been sexually assaulted. She then made a statement to police." Grounds of Appeal
The Grounds of Appeal remain as they were when initially filed on 26 June 2013. They are in the following terms: His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120; His Honour erred by increasing the balance of term and thereby impermissibly increasing the length of the sentence for the s 61I offence on 2 November 2007 to reflect a finding of special circumstances; His Honour erred in setting a fixed term of imprisonment for the offences which carry a standard non-parole period - the s 35(2) offence of recklessly causing grievous bodily harm and the s 61O offence of sexual intercourse without consent on 29 October 2007; His Honour erred in his consideration of the psychiatric evidence.
Leaving aside the debate that has occurred as to whether a fixed term represents the non-parole period or the entire sentence, the Court has long held that the combination of s 44(1) and s 45(1) of the Crimes (Sentencing Procedure) Act 1999 requires the setting of a non-parole period, in the case of those prescribed offences for which there exists a standard non-parole period. It must be said that, after the judgment of the High Court in Muldrock, there seems a philosophical inconsistency in the exercise of the Court's sentencing discretion between the approach to be taken to setting a non-parole period for standard non-parole period offences and the prohibition on imposing a fixed sentence for such offences. Nevertheless, the statute prevails over any perceived philosophical inconsistency.
Abundant authority is to the effect that a non-parole period must be set for standard non-parole period offences. The construction of the statute to that effect depends upon the express discretion to impose fixed sentences for other offences. The exercise of the sentencing discretion must be "consonant with consistency of approach and as accords with the statutory regime that applies"; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at 624 [26]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 371 [27]. The Extension of Time
In remitting the application for extension of time to this Court, the High Court held that the discretion to extend time is to be exercised by consideration of what the interests of justice require in the particular case: at [30]. The Court acknowledged that those interests will often pull in different directions. The prospect of success of the appeal should the extension be granted is a relevant factor but the assessment of that prospect does not end with the establishment of error. It also entails consideration of the determination required to be made under s 6(3) of the Criminal Appeal Act 1912 as to whether, having regard to the material placed before this Court, some other (less severe) sentence is warranted in law and should have been passed.
The material relied upon by the applicant has persuaded me that the interests of justice require that the extension of time be granted in the present case. Although the delay is lengthy, the reasons for the delay are adequately explained. The sentence imposed entailed specific error, with the result that this Court's discretion to re-sentence is enlivened. The evidence and submissions relied upon in support of the contention that some other (less serious) sentence is warranted in law are, in my view, such as warrant the grant of an extension of time.
In coming to that view, I have taken into account the initial Notice of Intention to Appeal, the unfortunate situation in which the Aboriginal Legal Service considered they were in a conflict of interest and could no longer act, and the refusal of the Legal Aid Commission to grant Legal Aid, which, together, in these circumstances, were the fundamental reasons an appeal was not lodged at an earlier time.
Further, there are manifest or identifiable errors in the principles applied on sentence. The foregoing comment is not a criticism of the sentencing judge, who, at least in relation to the alleged Muldrock error, applied the law as it then existed. It is recognition that the High Court in Muldrock restored the appropriate level of flexibility in the sentencing process that, hitherto, may have been confined by the principles applicable under this Court's construction of the statute in R v Way. Ground 1: Muldrock Error
As was required at the time that the sentencing exercise was undertaken, the sentencing judge applied R v Way.
The importance of the principle established by the High Court in Muldrock should not be underestimated. Error has occurred of the kind identified in Muldrock. The sentencing judge used the standard non-parole period for offences, for which a standard non-parole period was prescribed, as the starting point for the sentence to be imposed and added or subtracted for various factors. That approach was, in hindsight, an error. The ground of appeal is made out. Ground 2: The Misuse of Special Circumstances to Lengthen the Head Sentence
The sentencing judge decided that, in relation to the offence in Count 7, special circumstances existed on the basis of the appellant's psychiatric condition and drug and alcohol abuse. His Honour then determined that the offence itself was mid-range in culpability and set the standard non-parole period of 7 years with a remainder of term that was longer than would have been imposed if the prescribed statutory ratio were applied.
As a consequence, counsel for the appellant submits that the finding of special circumstances led to an extension of the balance of term of imprisonment, rather than a reduction in the non-parole period, in order to afford a longer potential parole period.
It is an error to use the finding of special circumstances to lengthen the head sentence in order to provide for the potential of an extended period on parole. Special circumstances have greater relevance in circumstances where one is mandated to fix a standard non-parole period, or to fix the statutory ratio for non-parole period to remainder of term, and gives reason for the amelioration of such a restriction. The effect of the finding of special circumstances may, if it be appropriate to give effect to that finding, be used to reduce the non-parole period that would otherwise have been determined. Special circumstances may not be used to lengthen the head sentence, beyond that otherwise considered appropriate.
There were a number of aggravating and ameliorating factors associated with this offence and with the other offences, which his Honour outlined. His Honour's finding that the two offences of sexual intercourse without consent were in "the middle range of objective seriousness" was a finding made prior to the adumbration of the aggravating and mitigating factors that his Honour recited by obvious reference to the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999.
Nevertheless, the sentencing judge thereafter (see [35] of the Remarks on Sentence) remarked that there was nothing in the mitigating and aggravating factors that warranted a variation in the standard non-parole period. As a matter of the proper interpretation of his Honour's Remarks and of that which his Honour intended, his Honour's sentence on Court 7 was infected by the error described above, namely, using special circumstances to lengthen the head sentence, rather than reduce the non-parole period. This ground of appeal is also made out. Ground 3: The Setting of a Fixed Term of Imprisonment for a Standard Non-Parole Period Offence
I have already remarked on a possible philosophical inconsistency between continuing a restriction in a sentencing judge's capacity to impose a fixed term of imprisonment for an offence that carries a standard non-parole period and the flexibility that is required in the sentencing process, as emphasised by the High Court in Muldrock and Markarian.
Nevertheless, the discretion reposed in a sentencing judge must be exercised in accordance with the statutory regime, regardless of the judge's view of the appropriateness of the regime.
On the basis of authority of this Court, it was inconsistent with the combined effect of the provisions of s 44(1) and s 45(1) of the Crimes (Sentencing Procedure) Act to impose a fixed sentence for an offence for which a standard non-parole period has been prescribed. As a consequence, there is error in the process of fixing that sentence and this ground of appeal has been made out. Ground 4: The Consideration of the Psychiatric Evidence
His Honour below analysed the evidence before him.
In particular his Honour referred to the two reports of Dr Allnutt of 11 September 2008 and 19 February 2009. He quoted, at some length, from each report.
As is correct, his Honour noted that the opinion of the psychiatrist was entirely dependent on the psychiatrist's acceptance of that which the offender had told him. His Honour expressed a degree of scepticism as to the truth of those statements.
Having done so, his Honour, nevertheless, took Dr Allnutt's reports and opinion "at face value", because of Dr Allnutt's renowned reputation as a respected forensic psychologist. However, his Honour took the view that the offender's medical condition did not justify his behaviour and did not have any connection with the sexual offences. His Honour was entitled to come to that view.
I note that for mental illness to be an ameliorating factor in sentence, the illness need not be causative or connected to the commission of the offences; it need only be relevant to moral culpability or such as to diminish the appropriateness of the offender as a vehicle for general deterrence or denunciation. In the first appeal, the Court upheld this ground. I am not so convinced that the ground is made out, but in the circumstances of the other errors, this ground could have no effect on the result of the appeal. Whether the ground is made out depends on the manner in which the sentencing judge utilised the lack of connection and his Honour's comments seem to disclose some ambivalence in that regard. It is unnecessary to deal with the ground further. Consideration of the Appeal
There is identifiable error in the sentencing process, based upon that which is stated in the Remarks on Sentence. Those errors include at least the application of the principles in R v Way, as distinct from the principles later established in Muldrock; an increase in the length of the head sentence on account of special circumstances, resulting in a lengthier term of imprisonment being imposed for one offence; and the setting of a fixed term of imprisonment for an offence which carried a standard non-parole period.
The grounds of appeal do not suggest that there is manifest excess. Nor do the grounds of appeal criticise the sentencing judge's application of the principles of totality or suggest manifest error in the application of those principles. Nevertheless, there is identifiable error conceded by the Crown and, subject to the grant of leave to appeal and the effect of s 6(3) of the Criminal Appeal Act, re-sentencing should occur.
The appellant is entitled to be sentenced in accordance with law and a person who is serving a current period of imprisonment is entitled to know that the period of imprisonment is authorised by law.
While I do not suggest that the foregoing would always determine an application for an extension of time in which to appeal a sentence, given the disclosed errors and the interests of justice, it is sufficient to warrant the grant of an extension of time to appeal against the sentence imposed on the appellant in this case and I would propose that the Court grant the extension of time for which the appellant applies. The Crown, in this appeal, does not oppose the extension of time. The operation of s 6(3) of the Criminal Appeal Act 1912
As stated, subject to the operation of s 6(3) of the Criminal Appeal Act 1912 and the grant of leave to appeal, given that the extension of time is to be granted, re-sentencing must occur. In that context, the operation of s 6(3) of the Criminal Appeal Act needs to be reiterated.
In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284, Spigelman CJ, with whom Latham J expressly concurred and with whom Kirby J, at least implicitly, concurred, discussed the operation of s 6(3) of the Criminal Appeal Act. The Chief Justice said: "[8] The dominant and active verbs in s 6(3) are both in the present tense, ie if the Court of Criminal Appeal 'is of opinion' and 'some other sentence … is warranted in law'. The employment of the past tense in the phrase 'should have been passed' is distinctly subsidiary. It is employed in order to reflect the fact that, when the Court of Criminal Appeal intervenes, it does so with effect from the date of the original sentence. [9] This interpretation is consistent with the reference in s 6(3) to s 5(1). That section permits an appeal 'against the sentence passed on the person's conviction'. The appeal is from the sentence that has been passed by the sentencing judge. However, the reference in s 6(3) should not be understood as saying 'should have been passed by the sentencing judge'. It should be understood as an institutional reference, ie 'should have been passed by the Court'. [10] When the Court of Criminal Appeal turns its mind to forming the opinion which s 6(3) requires, it must do so by reference to the facts as they exist at that time, insofar as the Court permits evidence of those facts to be placed before the Court."
I, respectfully, agree with the conclusion of Spigelman CJ. The pluperfect subjunctive phrase "should have been determined" denotes an act completed prior to the point in the past to which reference is given or implicit. The subjunctive mood denotes the hypothetical nature of the action. The use of the present tense in the phrases "is of opinion" and "is warranted" renders the pluperfect subjunctive phrase subsidiary, as Spigelman CJ noted.
It is this Court's current opinion as to whether a lesser sentence is warranted that is operative and required. That opinion must be based on the evidence before the Court at the time the opinion is formed. The use of the word "is" in each operative phrase emphasises that approach, particularly because the word "if" ordinarily occasions the use of the subjunctive mood. The legislature's deliberate use of "is", instead of the subjunctive "were", or somewhat awkwardly "be", emphasises that present tense, non-hypothetical aspect.
In other words, once the Court has granted leave to appeal and found error by the court below, the concluding words of s 6(3) of the Criminal Appeal Act require the Court to determine whether, on the correct application of the law and on the facts as we now know them to be (including any additional facts tendered for sentencing purposes), a lesser sentence "is warranted", in which circumstance that lesser sentence "should have been determined" and should now be imposed.
In Baxter, Spigelman CJ discussed some conflicting authority, or arguably conflicting authority, and made it clear (as have a number of other judgments of this Court) that the test in relation to s 6(3) of the Criminal Appeal Act is not "manifest excess" and the discretion that is exercised under the provision requires a consideration of "the full range of matters that inform the sentencing discretion": Baxter at [15].
In concurring with the reasons of Spigelman CJ, Latham J referred to comments of the Court in some cases as to the necessity to have "material error". Her Honour made it clear that a proper analysis of the authorities clarified that "materiality" in that sense meant an error that could possibly affect the result: Baxter at [83].
In doing so, her Honour referred to the passage from R v Burke [2002] NSWCCA 353 in which Sperling J (with whom Giles JA and Levine J agreed) referred to an error "which cannot have made any material difference to the result". In that sense, Latham J referred to a "material error" being one that "has the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the sentencing outcome": Baxter at [83].
Once error of the kind to which the High Court referred in House v The King [1936] HCA 40; (1936) 55 CLR 499 is identified (or manifest), the only question is whether the error is "formal or trivial or immaterial": R v Price [2005] NSWCCA 285 at [56] (Simpson J with whom Johnson and Rothman JJ agreed).
In the submissions before the Court in these proceedings, the appellant referred to "technical error", a term which, in my view, imports even greater uncertainty and ambiguity. The operation of the provisions of s 6(3) of the Criminal Appeal Act is an exception to the orders that would otherwise be required and is part of the "resentencing" process, by allowing the Court, in presently exercising its sentencing discretion, not to alter the sentence already imposed.
Nevertheless, there will be cases in which error is identified which could not possibly affect the result. I decline to call them "technical" errors and I prefer, given the comments in Baxter and the comments of the High Court in Kentwell, not to call them "immaterial". In my view, where error is disclosed, it is only when an effect on the outcome is impossible that error can be disregarded and, on that ground, leave refused. Leave to Appeal
In my view, if error were identified, the effect of which could not possibly have affected the result, then the proper course is to deny leave to appeal. Once leave is granted, then the provisions of s 6(3) of the Criminal Appeal Act, would require the quashing of the sentence and the passing of another sentence in substitution therefor, unless, in the re-sentencing exercise, the Court were to come to the view that no less severe sentence is warranted in law. In so doing, the Court has regard to the present circumstances, rather than those before the sentencing judge at the time that error occurred.
As a consequence of the foregoing, and the quality and nature of the errors that have occurred in the sentencing process, it could not be said that these errors are immaterial (as that term was used by Latham J above) or technical (as the term was used by the appellant in his submissions). Leave should be granted and re-sentencing is required. Re-sentencing
The principles to be applied on sentencing are well-established and the purposes well-known. The provisions of s 3A of the Crimes (Sentencing Procedure) Act reflect the common law principles as to the objectives of sentencing. Those objectives include: ensuring that an offender is adequately punished for the offence committed; general deterrence, being the imposition of an appropriate sentence on this offender in order to discourage others from engaging in such criminal conduct; specific deterrence, being the prevention of this and other crimes by this offender; protection of the community from the offender; promotion of the rehabilitation of the offender; the rendering of the offender accountable for his actions; denunciation of the conduct giving rise to the offence; and recognition of the harm done to the victim of the crime, the victim's family and the community: see s 3A of the Crimes (Sentencing Procedure) Act; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. The foregoing are guideposts to the appropriate sentence, which often point in different directions.
As is clear from the statements of principle above, the Court at this stage is required to determine for itself the objective and subjective circumstances that apply to the offence and the appellant and determine an appropriate sentence. Because the exercise of discretion below is vitiated by error, the sentence under appeal carries no significance in that re-sentencing process. The objective circumstances of the offending have already been summarised. Most of the subjective circumstances were set out in the Remarks on Sentence and summarised in the first appeal judgment.
Before embarking upon an analysis of the subjective circumstances, it should be stressed that the offending was extremely serious, involving as it did serious sexual offences committed in a domestic situation, together with additional acts of violence. Each of the contraventions of s 61I of the Crimes Act 1900 (sexual intercourse without consent knowing that she was not consenting) is a serious offence committed in circumstances of recklessly causing grievous bodily harm by the breaking of the complainant's ribs. However, that circumstance is the subject of a separate charge and care must be exercised not to "double-count" that effect.
The s 61I offences were each mid-range, the malicious destruction of property was a low range offence and the assault (count 5) was also a low-range offence. I also accept that the offence under s 35(2) of the Crimes Act (count 1), being the reckless causing of grievous bodily harm by breaking the complainant's ribs, was mid-range for that offence. Taken together, the criminal conduct was serious and required full-time custodial sentences to be imposed.
Moreover, these offences were committed while the appellant was on conditional liberty, which increases the weight that ordinarily would be given to specific deterrence. The appellant has a lengthy criminal record and has been imprisoned on prior occasions.
As a consequence of that last mentioned factor, the appellant is not entitled to the leniency that might otherwise be shown to a first offender. Otherwise, the criminal history does not reflect offences of the kind with which the appellant was here charged and is to be sentenced. The criminal history does not point starkly to a need for specific deterrence of this kind of criminal activity. Ultimately, the criminal history cannot lead to the imposition of a sentence which does not proportionately reflect the gravity of the offence in question: Veen v The Queen (No 2) at 477.
Since the original sentence proceedings, the subjective circumstances of the appellant have altered. By affidavit of 18 February 2015, the appellant refers to his undertaking of the Violent Offenders Therapeutic Programme (VOTP), which he has been successfully completed. Further, the applicant has not been charged with any breaches of prison discipline and has been treated, medically, for the schizophrenia, of which psychosis there was previous evidence.
While in prison, the appellant has undergone employment training and also works on artwork and paintings, which he has taken up since his incarceration.
In the course of the affidavit, the appellant said: "[15] My children are the most important people in my life. They live with their mother, Barbara. It is now almost seven years since I have seen them. Luciana is now seven years old and Ruby is twelve. I have kept in contact with them by telephone. I still speak with them on Saturdays and Sundays when they stay at their Nonna's home. I also write them letters. I look forward to the day I am released on parole and can see them again. [16] I want my children to know me. I grew up deprived of knowledge about my natural parents, my brothers and sisters and my parent's Baarkindgi culture. I was taken away and adopted out to a white family when I was 12 months old. [17] I was able to meet my mother in around 1996. By chance, I had met my cousin in gaol who was able to put me in contact with her. I saw my mother a few times before she died in 2000. I never met my father. My first meeting with his side of my family was when I attended his funeral from custody in 1997. [18] Both of my parents suffered poor health and died when they were fairly young. My cousin, with whom I had contact for a while, has also now passed away. [19] I have not felt a part of the Kentwell family for many years and especially since my adoptive mother died in 2007. The Kentwell children do not want contact with me."
He has been described by prison officers, in their regular reports, as fully engaged in the rehabilitation process, having also undergone the Violent Offenders Maintenance Programme and developed insight into his own previous and current behaviour, which current behaviour is described as "excellent".
Apart from the developments in the subjective factors applying to the appellant, there is little or no challenge to the findings of fact by the sentencing judge, which, to the extent that there is no challenge to those findings, I adopt. It is appropriate to repeat some of the more salient features.
The sentencing judge summarised the applicant's personal circumstances as having been born in Broken Hill to Aboriginal parents and adopted out to a non-Aboriginal family at 12 months of age. The applicant described himself as "a black fella in a white fella's world" and had trouble in school due to his Aboriginality: (Pre-Sentence Report, Exhibit 4 on Sentence).
The Appellant grew up ignorant of his Aboriginal cultural heritage, drank alcohol because he felt out of place at school and has suffered from a drinking problem from the age of 15. He was asked to leave home (being the home of his adoptive parents) when he was 17 years of age due to his drinking and fighting.
The applicant attempted suicide in about 2004. Due to contact with a cousin in prison he met his birth mother in 1996. She died in 2000. He never met his biological father, who has died.
Further to the foregoing, and as may be obvious from the reference to medication, there are psychiatric reports, in particular from Dr Allnutt of 11 September 2008 and 19 February 2009. The 2008 report refers to the appellant manifesting ongoing auditory hallucinations and ongoing symptoms of a psychosis. At that time, he had no memory of the alleged offences and was reluctant to discuss his mental state. Continuing medication was recommended.
By 19 February 2009, little had changed. Dr Allnutt referred to auditory hallucinations, the difficulty in distinguishing between the effects of methamphetamine induced psychosis and schizophrenia and the effect of the drugs giving rise to the persistence of psychotic symptoms.
Dr Allnutt, in his 19 February 2009 report, expressed the opinion: "There is evidence to support the conclusion that [the appellant] was experiencing delusional beliefs compounded by auditory hallucinations and ideas of reference which incorporated his girlfriend leading him to form the view that she was being unfaithful to him and that these symptoms were active at the material time that the alleged offence occurred."
The sentencing judge took the view that the appellant had a history of mental health problems and, although the sentencing judge expressed a degree of scepticism of the symptoms described by the appellant, he accepted Dr Allnutt's opinion and accepted that a custodial sentence would weigh more heavily on the appellant. The sentencing judge was not prepared to accept that the mental illness was in part causative of the offence. Nor, on one view, was the sentencing judge prepared to give less weight to denunciation and general deterrence on the basis that the appellant was an inappropriate vehicle for each, given his mental illness.
The events since the sentencing suggest that the scepticism expressed by the sentencing judge, although understandable, was misplaced. Exercising the discretion now, and given the circumstances of the offender as they are, the appellant is not an appropriate vehicle for general deterrence.
Further, it is my view that the psychiatric issues suffered by the appellant at the time of the offence, particularly the paranoia and hallucinations were, even if not causative of the offences, such as to diminish the appellant's moral culpability in committing the offences.
Lastly, I turn to the issue of the sentencing judge's treatment of the appellant's personal background. The sentencing judge, in his Remarks at [32] said: "I am not satisfied that the offender's Aboriginal background has any relevance to the commission of the offences. I do, however, believe that his Aboriginality is relevant to sentence, and I take it into account in the sentencing process as a mitigating factor in so far the principles in R v Fernando require it."
The reference to R v Fernando is a reference to the judgment of Wood J, as his Honour then was (R v Fernando (1992) 76 A Crim R 58). In the judgment at pp 62-63, Wood J summarises a number of factors, derived from prior cases and learned papers, concerning the principles to be applied arising from a deprived or particular kind of background. The judgment in Fernando and subsequent judgments make it clear that the principles apply to any person "irrespective of the identity of a particular offender or his membership of an ethnic or other group": Fernando at pp 62 of the report.
In Kennedy v R [2010] NSWCCA 260, Simpson J (with whom Fullerton and RA Hulme JJ agreed) said: "[50] In Fernando, Wood J set out a series of sentencing propositions that have too often been taken to have been designed specifically for Aboriginal offenders. So to approach that decision is to misunderstand Wood J's intention. [51] Indeed, Wood J stated this expressly. Proposition (A) and (B) read: (A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group. (B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender. [52] That the Fernando propositions were intended to apply generally was stated in R v Hickey (NSWCCA, 27 September 1994, unreported) and re-stated by Wood J in R v Morgan [2013] NSWCCA 230; 57 NSWLR 533 at [20] and [21]. [53] Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime. Particularly relevant, in the circumstances of that case (and this) is the impact of alcohol addiction or dependence. In the proposition lettered (E), Wood J said: (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. It is this proposition that senior counsel for the applicant argued was here applicable, but was rejected by the sentencing judge. [54] By way of response, the Crown argued:
The Crown in response submits that, even though the applicant says that his offending is alcohol related, he does not come from a remote part of the community, and he was familiar with the legal system from an early age. In any event, the mitigating effect of being an Aboriginal person loses much of its force, where the offender has committed similar serious offences in the past: R v Ah-See [2004] NSWCCA 202. The Crown went to hypothesise that this applicant had, in fact, been given the benefit of a Fernando approach to sentencing in the past. Examination of the applicant's history suggests that this is a reasonable inference. [55] Notwithstanding that, in my opinion this ground has been made out. It was an error for the judge to say that there was "little evidence" to show that the applicant was raised in a community: the toxic features of which prevented the development of a proper attitude to law abiding behaviour. [56] The Pre-Sentence Report disclosed an early history of social deprivation, to the extent that, from the age of seven, the applicant was removed from his mother's care. He has had no relationship with his father. He has had little education. He succumbed to drug and alcohol use as early as 13 years of age. His upbringing was unstable, in part by reason of attempts on the part of his grandmother to deal with his drug and alcohol use. [57] It is no answer to say that he did not come from "a remote part of the community"; social deprivation, resulting from alcohol consumption (or otherwise) is not confined to remote areas or communities.
The foregoing recitation of principle was expressly approved by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
There are two aspects to the statement of approach by the sentencing judge that require comment. First, it is not "Aboriginality" that is relevant to sentence as a mitigating factor. That which is relevant is the personal circumstances of the appellant to which his Aboriginal descent may be relevant.
Secondly, as Wood J in Fernando, Simpson J in Kennedy and the High Court in Bugmy, all make clear the factors adumbrated by Wood J are a non-exclusive set of factors, derived from previous judgments and learned papers. Fundamentally, they describe circumstances of social deprivation, violence and the like that ameliorate the moral culpability of an offender and allow the Court to understand the circumstances that gave rise to the criminal offending. Those circumstances include reasons for an offender's recourse to violence and anti-social behaviour.
In Fernando, the circumstance that was stressed was a family environment of alcohol abuse and violence. That is not a circumstance that pertains to the appellant. The appellant was, as has been set out, adopted by non-Aboriginal family and was denied knowledge of his culture and was denied an environment that supported him as Baarkindgi.
In R v Lewis [2014] NSWSC 1127, I dealt with the sentencing of a person of Aboriginal descent who had been adopted by Caucasian parents and the social exclusion and discrimination occasioned by that factor or as a result of it. Not every person in that situation will suffer in the same way. Mr Lewis did. The appellant did. During the course of the sentencing of Mr Lewis, I said: "[37] The offender (or more accurately his counsel) seeks to rely on the principles summarised by the Court … in R v Fernando (1992) 76 A Crim R 58. See the High Court judgment in R v Bugmy [2013] HCA 37 ; (2013) 249 CLR 571 at [18] and [36]-[43]. This is not a traditional Fernando case. Those principles are well known and I will not now repeat them. They largely deal with persons, whether Aboriginal or otherwise, from a deprived background where abuse of alcohol and physical abuse are accepted norms of conduct. [38] The offender's exposure to such an environment really results, as earlier stated, from his attempt to find a peer group arising from his exclusion from social groups at school and in his neighbourhood. It does not reflect his home environment. Nevertheless, there are analogies."
I proceeded in Lewis to rely upon studies in the United States of America relating to the effect on behaviour of social exclusion and discrimination. It is unnecessary to reiterate those comments or refer in detail again to the studies.
Those studies disclose, somewhat counter-intuitively, that social exclusion from the prevailing group has a direct impact and causes high levels of aggression, self-defeating behaviours, and reduced pro-social contributions to society as a whole, poor performance in intellectual spheres and impaired self-regulation. While intuitively, for those who have not themselves suffered such extreme social exclusion, the response to exclusion would be greater efforts to secure acceptance, the above studies make clear that the opposite occurs.
Thus, a person, such as the appellant, who has suffered extreme social exclusion on account of his race, even from the family who had adopted him, is likely to engage in self-defeating behaviours and suffer the effects to which earlier reference has been made. This is how the appellant has been affected.
Circumstances such as that are akin to a systemic background of deprivation and are a background of a kind that may compromise the person's capacity to mature and to learn from experience: Bugmy at [41] and [43]. As a consequence, this background of social exclusion will, on the studies to which detailed reference has been made in Lewis, explain an "offender's recourse to violence…such that the offender's moral culpability for the inability to control that impulse may be substantially reduced": Bugmy at [44].
The studies by Professor Baumeister, reference to which is contained in the judgment in Lewis, make clear that such extreme social exclusion will likely result in anti-social behaviour and most likely result in criminal offending. However, in each case, there must be evidence to suggest the application of these principles and the effect of the exclusion. In this case, the evidence in relation to the appellant of that factor is substantial.
Moreover, the appellant's rehabilitation whilst in prison, during a period when those factors were sought to be addressed, as were the effects of his mental illness, discloses a basis for diminishing his moral culpability for the offences and a view that his rehabilitation prospects are strong.
Since his incarceration, the appellant has undergone anger management programmes (self-referred); completed, as earlier stated, the VOTP and a Maintenance Programme in relation to it; applied to complete the Sex Offender's Programme; worked in employment in gaol in a manner that has been described by prison officers as constructive and his behaviour "excellent"; had continuing arrangements with Aboriginal welfare; undergone courses on drugs and alcohol; and completely abstained from drugs.
As a result, it seems his anti-social behaviour has been ameliorated considerably and he has had no disciplinary charges whilst in prison. All of these are factors which stress the capacity of the appellant for rehabilitation and affirm the need for supervision of the appellant over a longer period than the prescribed ratio would allow in order for these steps towards total rehabilitation to be supervised in the community.
Taking all of these factors into account and, in particular, the subjective factors that have arisen since his incarceration, it is my view that a lesser sentence is warranted.
Nevertheless, as earlier stated, the offences, particularly the sexual offences, are extremely serious. The subjective circumstances described above indicate that the appellant has good prospects of rehabilitation; is a less appropriate vehicle for general deterrence; and those circumstances lessen the otherwise obvious need for specific deterrence. The seriousness of the offences warrants appropriate punishment and there still exists room for some deterrence, general and specific. A sentence must be imposed, bearing in mind the subjective circumstances, which is appropriate for the seriousness of the offences.
Since drafting the foregoing, I have had the opportunity to read, in draft, the reasons for judgment of the Chief Justice. Without resiling from any aspect of these reasons, I agree with the Chief Justice and with the order he proposes.
MCCALLUM J: I have read the judgments of the Chief Justice and Rothman J in draft. I agree that the time within which to appeal should be extended, for the reasons stated by their Honours. I agree that grounds 1, 2 and 3 have been made out. In the circumstances, it is not necessary for me to reach a conclusion as to ground 4. I agree with the remarks of Rothman J on re-sentencing. I agree with the orders proposed by the Chief Justice, for the reasons stated by their Honours.

Kentwell v R

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