Many v R

Court of Criminal Appeal (NSW)|2021-09-03|Before: Adamson J, Lonergan J, Like Adamson J

Judgment

SIMPSON AJA: The relevant facts and circumstances are adequately set out in the judgments of Adamson J and Lonergan J, each of which I have had the advantage of reading in draft. By Ground 2 of the proposed appeal the applicant complains of the sentencing judge's treatment, as a matter of aggravation, of his conduct in absconding to Queensland following his being charged in relation to the present offences, and the revocation of his parole. Certainly, those circumstances were not material to the assessment of the objective gravity of the offences for which the applicant stood for sentence, but nor did the sentencing judge treat them as such. It is undeniable that those circumstances speak forcefully to relevant sentencing considerations, specific deterrence, prospects of rehabilitation and the likelihood of reoffending. Like Adamson J and Lonergan J, I would reject Ground 2 of the proposed appeal.
The sentencing judge made a factual error in stating the dates during which the applicant had been incarcerated in Queensland, giving rise to Ground 1 of the proposed appeal. The result of the error was that his Honour overlooked a period of five months, between March and August 2018, in which the applicant had been in custody. The offending to which that period was referable was obstruction of Queensland police, wholly unrelated to the domestic violence offending for which the applicant was to be sentenced in July 2020.

Ground 1: alleged failure to take into account a period of interstate custody when considering the issue of totality

The applicant committed several offences, before and after the subject offences, for which he spent time in custody in New South Wales and Queensland. The principles of totality required the sentencing judge to take into account these periods of custody when sentencing the applicant for the subject offences.
It was common ground in this Court that the following matters, which related to the applicant's criminal and custodial history, were relevant to the sentencing judge's discretion: Time period Relevant event or period 25 August 2015-24 August 2017 Applicant in custody in NSW for 2 offences of intentional choke with recklessness and intimidation (Newcastle offences). 25 August 2017 Applicant released to parole for the Newcastle offences. 28 December 2017 While on parole for the Newcastle offences, applicant committed the subject offences. 29 January 2018 Applicant arrested for the subject offences and released from police custody. 31 January 2018 Parole board revoked the applicant's parole for the Newcastle offences. At about this time (early 2018) The applicant fled to Queensland to avoid being sentenced for the subject offences, which were listed for sentence on 21 February 2018. 21 February 2018 As the applicant failed to appear before the sentencing judge, a warrant was issued for his arrest. 13 March 2018 The applicant was arrested and charged in Queensland with assault occasioning actual bodily harm and assault/obstruct police, and taken into custody (the first Queensland matter). 14 March 2018 The applicant was charged with obstruct police (the second Queensland matter). He was subsequently sentenced for this offence to time served from 13 March 2018 to 7 August 2018. 7 August 2018 The sentence for the second Queensland matter expired. 8 August 2018 The commencement date for the sentence of the first Queensland matter. 3 July 2019 The sentence for the first Queensland matter expired. 5 July 2019 The applicant, who has been transferred from Queensland to NSW, began serving the balance of his parole for the NSW matter.

The sentencing judge, when setting out the periods during which the applicant had been in pre-sentence custody, omitted to refer to the period the applicant spent in custody in Queensland from 13 March 2018 to 7 August 2018.
Having regard to the care with which his Honour referred to the other periods of pre-sentence custody, I am persuaded that his Honour omitted to take this period into account when imposing the sentence on the applicant. I note the Crown's submission that it would be open to this Court to come to this conclusion.
As referred to above, pre-sentence custody for other offences is relevant to the issue of totality. An error in appreciating the length of periods of pre-sentence custody must necessarily impugn the exercise of the sentencing discretion, which must, accordingly, be exercised afresh by this Court: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Kentwell) at [35] and [42] (French CJ, Hayne, Bell and Keane J).

Ground 2: the alleged failure in taking into account the applicant's post-offending conduct as a matter of aggravation

Having regard to my conclusion with respect to ground 1, my reasons with respect to ground 2 can be briefly expressed. The applicant's absconding from New South Wales after the subject offences and his further offending conduct (which is summarised in the table above) was relevant to the need for specific deterrence, his prospects of rehabilitation and likelihood of re-offending. The sentencing judge was entitled to take these matters into account against the applicant when exercising the sentencing discretion. I am not persuaded that ground 2 has been made out.

The discretion to re-sentence

The applicant has adduced further evidence in the event that this Court were required to re-sentence him. The affidavit of his solicitor, Alexandra Heffernan, affirmed 7 May 2021, established that the applicant was assaulted while in custody on about 31 May 2020, as a result of which he suffered injuries, including a fractured nose and multiple bruises on his face and the back of his neck and pain in his knee, for which he obtained treatment at the Wagga Base Hospital. This was a matter which pre-dated the imposition of the sentences for the subject offences and related to the period during which the applicant was required to serve the balance of his parole for the Newcastle offences. It is, however, evidence that the prison environment can, at times, be violent.
The further evidence established that while in custody, the applicant has sought treatment for heroin addiction. After several unsuccessful attempts to obtain treatment, he was admitted to the NSW Opioid Treatment Program on 18 January 2021.
The applicant did not challenge the facts, other than as set out in the grounds of appeal. In these circumstances, he ought be sentenced on the basis that his prospects of rehabilitation are not good and that he will probably re-offend on release. He has a substantial criminal history which disentitles him from leniency. Specific deterrence and the protection of the community are significant matters to be taken into account in sentencing. Denunciation is warranted as the assaults were committed against the applicant's then partner in their home.
The applicant argued that he had been institutionalised and that, on re-sentence for the subject offences, a lesser period of full-time custody ought be imposed. While this is a relevant matter on sentence, the purposes of sentencing include denunciation, punishment and specific deterrence, as well as rehabilitation. As referred to above, the subject offences involved a substantial degree of violence and were aggravated by having been committed in the victim's home.
The result of my independent exercise of discretion would be to impose a fixed term sentence of 18 months for the assault occasioning actual bodily harm and a fixed term sentence of 1 year for the common assault to be served concurrently. In these circumstances, this Court is not required to re-sentence: Kentwell at [43] (French CJ, Hayne, Bell and Keane JJ). Accordingly, the appeal ought be dismissed.
LONERGAN J: The applicant seeks leave to appeal a sentence comprising fixed terms of imprisonment for the offences of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) and common assault contrary to s 61 of the Crimes Act. The offences arose out of a single episode of violence inflicted upon the applicant's then partner at their home on 28 December 2017.
The applicant was sentenced on 17 July 2020 by his Honour Judge McLennan SC to fixed terms of 18 months imprisonment and 12 months imprisonment respectively, those terms to be served concurrently.
The applicant pleaded guilty to both charges and a 25% discount was applied in respect of both offences. The sentences commenced on 17 July 2020. The longest of them will expire on 16 January 2022.
There are two grounds of appeal. The first ground asserts that the sentencing judge failed to take into account a period served in interstate custody when considering the issue of totality.
The second ground asserts that the sentencing judge erred in taking into account the applicant's post offence absconding and subsequent offending as a matter of aggravation.
I am not persuaded there is any substance in ground 2 of the appeal however in respect of ground 1, the Crown conceded error of the type that requires this Court to re-exercise the sentencing discretion.
I have however concluded, for the reasons that follow, that no lesser sentence is warranted and so the appeal should be dismissed.

The agreed facts for sentencing purposes

A statement of agreed facts was tendered. These facts were set out by the sentencing judge in his remarks on sentence: "The victim Jillian Francis had been in a relationship with the offender since around September 2017. They lived together at a house in Casino. On 28 December 2017 the victim was cleaning up the house while the offender was at an appointment in Lismore. The offender had an appointment with a Community Corrections officer at 2:30pm that afternoon. She left the washing up in the kitchen for the offender to do when he returned. When he returned that afternoon they had a cigarette together and then the victim started watching the television. She heard the offender banging pots in the kitchen. He came into the lounge room and said "What did you do while I was gone?" The victim got up and took a basket of washing to the clothes line in the backyard to hang out. She slammed the back door and he started yelling at her to "Get back inside". Count 1, the offence of assault occasioning actual bodily harm, which carried a maximum penalty of five years imprisonment on indictment, records that the complainant went to the back flyscreen door (to the laundry) and held it shut so he could not come outside. He ripped off the flyscreen door and dragged her inside by the hair. He threw her onto the floor and she fell on a washing basket breaking it. When the victim was on the floor the offender put his foot on her head, he punched her on the breasts and dragged her up by the hair. Count 2, the offence of common assault, which carries a maximum penalty of two years imprisonment, involved the offender holding the victim against the laundry door and placing his hands around her throat and squeezing until she felt like she could not breathe. He let go and she started breathing again. The victim felt as though he had his hands around her throat for about 30 seconds. She had cuts on her hands and grazes on her stomach area. The offender kept saying "Why are you pushing my buttons?" and the victim replied that she was not and he headbutted her and poked her in the face. At some stage he said he was going to kill the victim. He then asked her to help him wash up before the appointment. She helped him and at some stage put the flyscreen door back on. The parole officer arrived. The complainant got her dog and car keys and left the house, walking down the road, and immediately called triple-0. The victim had grazes to her torso, hands, and redness around the neck from the assault. The offender left the house and was arrested on 29 January 2019."

The remarks on sentence

The sentencing judge observed that these facts reveal a "short unpleasant explosion of violence for the most trivial of reasons" and that the applicant asserting this was somehow the result of the victim "pushing his buttons", demonstrating a complete lack of insight and blame shifting.
The injuries were described by the sentencing judge as relatively minor, but the acts of violence themselves were serious and included dragging the victim by the hair, throwing her to the floor, standing on her head, punching her on the breasts, dragging her up off the floor by her hair, choking her, and then shortly after this, head-butting her and poking her in the face.
Each offence was found by the sentencing judge to fall in the mid-range of objective seriousness. It was noted that the applicant was on conditional liberty at the time, which is "a statutory matter of aggravation".
His Honour observed that the applicant was on bail when he fled to Queensland. Whilst there he committed another offence of violence against another woman which was also taken into account as "a matter of aggravation".
At the commencement of the sentencing remarks his Honour identified the interstate absconding as a reason for the delay between the offending and the committal for sentence.
The applicant was sentenced in the Brisbane District Court on 4 July 2019 for other offending against another domestic partner that had taken place in Brisbane on 13 March 2018.
At the time of the subject offences against Ms Francis in December 2017, the applicant was on parole as part of a sentence imposed at the Newcastle District Court on 24 February 2017 for other domestic violence offences against a further woman that he had committed on 26 August 2015. Those offences were intentionally choke with recklessness (DV) and stalk and intimidate (DV). For that offending he had been sentenced to 4 years imprisonment with a non-parole period of 2 years. He was only 4 months into his parole when he attacked Ms Francis.
As part of the Crown material the sentencing judge was provided with the facts in relation to the 13 March 2018 offending in Queensland, the facts for the August 2015 (DV) offending in Newcastle, as well as the applicant's criminal record, leading him to remark: "Mr Many is a repeat offender when it comes to domestic violence. Any woman who is unfortunate enough to be in a relationship with him is at risk. This sentence will be designed to give pre-eminence to specific deterrence and general deterrence, as well is to protect the community (particularly women) from him."
The sentencing judge observed that the applicant's criminal history is "replete" with offences of violence prior to this offence, and that he regarded the criminal history as a matter of aggravation.
The applicant's earliest record of offences of violence began when he was 23 years old and included assault occasioning actual bodily harm, followed by what the sentencing judge described as "very serious offences of violence" in November 2000 which led to sentences of imprisonment. This was followed by other offences of violence which were dealt with in the Local Court: namely assault occasioning actual bodily harm and common assault. Five years later the applicant was sentenced in the Lismore Local Court for identical offences.
The applicant's subjective case was noted by the sentencing judge to be presented via the medium of a Sentencing Assessment Report authored by Ms Coghlan, a Community Corrections Officer, dated 29 April 2020, as well as through oral evidence given by the applicant.
Ms Coghlan's report had noted that the applicant accepted sole responsibility for his history of violence towards intimate partners and that he had alcohol and illicit drug use issues that contributed to the domestic abuse, and that he acknowledged that abstinence from alcohol and illicit drugs was an important case management tool to reduce his risk of re-offending. Reference was also made to the applicant "often engaging well with prior supervision", but that repeated re-offending would then interrupt rehabilitation progress.
The applicant was assessed by Ms Coghlan as a medium to high risk of re-offending. The sentencing judge agreed with that assessment.
The sentencing judge referred to past treatment for anxiety, depression and bipolar disorder and to a description given by the applicant of his own father as a "violent alcoholic". The applicant asserted that he now had insight into how that violence had affected his mother and siblings, but the sentencing judge noted that as referred to in the pre-sentencing report, the applicant is "accomplished at verbalising positive messages about his insight and willingness to change. That of course has to be contrasted with his actual conduct".
The conclusion reached by the sentencing judge was that he could not accept that the applicant had good prospects of rehabilitation. He found that it is more likely than not that the applicant will reoffend, "unless his apparently entrenched attitudes concerning the acceptability of violence towards women change dramatically".
The sentencing judge accepted that the applicant was "sorry" for the violence to Ms Francis, but observed that remorse has not led to a change in behaviour and so gave remorse little weight in the sentencing exercise.
The real issue in the case was noted by the sentencing judge to be how to properly take into account totality: "He appears to have been in custody in Queensland from 8 August 2018 until 4 July 2019 (date of sentence) and then in custody from 4 July 2019 up until today, 17 July 2020. The balance of his parole for the Newcastle offences which was revoked. That particular sentence is due to expire on 4 March 2021."
The sentences were imposed to run concurrently with the balance of the applicant's parole which the sentencing judge noted "demonstrate(s) some leniency". The sentencing judge declined to find special circumstances and imposed fixed terms of imprisonment pursuant to s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW) because of the antecedent character, the previous sentences imposed and what seems to be ineffectual attempts to rehabilitate by previous non-parole periods.

Ground 1: The sentencing judge failed to take into account a period served in interstate custody when considering the issue of totality.

Ground 2: The sentencing judge erred in taking into account the applicant's post offence absconding and subsequent offending as a "matter of aggravation".

It is convenient to deal with the second ground of appeal first.
The relevant background to this part of the remarks on sentence is as follows. First, as already observed, the applicant was 4 months into his parole for the Newcastle domestic violence offences when he attacked Ms Francis.
He was arrested for the offending against Ms Francis on 29 January 2018 and on 31 January 2018 the Parole Board revoked his parole for the Newcastle matters. The offences against Ms Francis were listed at the Lismore Local Court on 21 February 2018 but the applicant did not appear, having absconded to Queensland. A warrant was issued. In Queensland he committed further domestic violence offences involving another woman less than 3 weeks later on 13 March 2018.
Of these circumstances the sentencing judge said: "I have already referred to the fact that the offender was on conditional liberty at the time. That is a statutory matter of aggravation. He was on bail when he fled to Queensland and then committed another offence of violence whilst on bail. That is a matter of aggravation. His criminal history is replete with offences of violence prior to this offence. I regard his criminal history as being a matter of aggravation".
The applicant complained that this passage reveals the following errors which means that his Honour's dealing with the applicant's post offending conduct was erroneous: 1. The applicant was not on bail for the offences against Ms Francis because he had been charged with those offences by way of future court attendance notices; 2. There is "no statutory aggravating factor" relating to post offence absconding and the commission of further offences whilst at liberty pending finalisation of a matter; 3. Post offending conduct, whilst it may disentitle an offender to leniency cannot aggravate a sentence.
It is true that the applicant was not on bail when he committed the offences in Queensland on 13 (and 14) March 2018, but he was on conditional liberty. His parole had been revoked. The effect of this is that his liberty is "conditional upon his apprehension": Turnbull v R [2019] NSWCCA 97 at [22] per Simpson AJA, Ierace J agreeing.
Second, the warrant for his arrest following his failure to appear on 21 February 2018 amounts to another form of conditional liberty: see R v King [2003] NSWCCA 352.
The fact that the sentencing judge referred to the conditional liberty as being "on bail" was not a material error: Turnbull v R at [22].
The second argument is misconceived. The sentencing judge did not refer to this matter as a "statutory aggravating matter". That description was applied to the committing of offences on conditional liberty, in contradistinction to "post offending conduct".
Third, the comment by the sentencing judge regarding "conduct disentitling the offender to leniency" must be read in the context of the sentencing remarks and the point emphasised by him that the further offences in Queensland were part of a pattern of repeat domestic offending.
There was nothing in the treatment of this matter that was against principle. Consistent with principle the sentencing judge underscored the need for personal deterrence in a way consistent with the comments of the Court in R v M.A.K; R v M.S.K (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [59].
Ground 2 of the appeal must be dismissed.

Ground 1: Totality - interstate custody

The written submissions provided by counsel for the applicant on this appeal helpfully set out the chronology of the applicant's most recent custodial history. A similar task was undertaken by the Crown. Although the formatting and approach taken in the respective tables are slightly different, the effect is the same in terms of the identified error.
In short, the sentencing judge failed to take into account a sentence imposed on 8 August 2018 in Queensland for an offence of obstruct police which had occurred on 14 March 2018. The applicant was sentenced on 8 August 2018 to time served, covering the almost 5 month period spanning 13 March 2018 to 7 August 2018.
The applicant's submissions on sentence had referred to the fact that the applicant "was in custody in Queensland from 13 March 2018 to 4 July 2019 before being extradited to NSW", although no specific reference was made to the 8 August 2018 sentencing event.
The Crown bundle tendered on sentence included a single page of "Queensland Court Outcomes" which included reference to the conviction entered at the Richlands Magistrates Court on 8 August 2018 for assault / obstruct police officer on 14 March 2018, and a declaration that time spent in pre-sentence custody be deemed "time already served under this sentence".
For whatever reason, this period was not referred to at all by the sentencing judge when assessing totality.
The Crown conceded that it would be open for this Court to find error on the basis of ground 1, and I accept that concession is properly made.
I also accept the Crown's submissions that the error is not one that could be corrected by simply backdating the sentence.
The error could not be considered to be a "mere arithmetical error" as discussed in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [72] per Bathurst CJ, Beazley P, RA Hume and Schmidt JJ agreeing.
The pre-sentence custody was not all referable to the offences before his Honour. In fact the relatively significant period of pre-sentence custody was wholly unrelated to the offences before his Honour. Some of it was partially referable to the balance of parole for the 2015 (DV) offending in Newcastle. The selection of the commencement date was connected with the sentencing process and it affected the sentencing discretion on the question of totality: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [66]; Callahan v R (2006) 160 a Crim R 145; [2006] NSWCCA 58.
Accordingly this Court must exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Re-sentence

The offence of assault occasioning actual bodily harm attracts a potential maximum period of a 5 year imprisonment, and assault, a potential maximum period of 2 years imprisonment.
There was no challenge to the sentencing judge's findings that these offences fall in the mid-range of objective seriousness for this type of offending.
Challenge was however made by the applicant to the findings that the applicant's prospects of rehabilitation were not good and that it is more likely than not that he will reoffend in the future.
Those findings were not only open to his Honour, but inevitable. The applicant has demonstrated repeated domestic violence offending, undeterred by parole requirements and the repercussions of breaching parole. Custodial sentences imposed appear to have had no deterrent effect. The victim-blaming and manipulation associated with that was noted by his Honour.
It is ironic that the attack on Ms Francis was because the applicant was displeased about the tidiness of the house for the pending visit of his parole officer.
The applicant's criminal history demonstrates that efforts at rehabilitation have been ineffective and he continues to re-offend in the same way.
Not only does the applicant's criminal history not assist him, it demonstrates clearly a dangerous propensity to inflict violence upon his domestic partners with sickening regularity. The discussion by Rothman J in R v Abboud [2005] NSWCCA 251 at [32] and [33] is apposite: "[32] … In Veen v The Queen [No. 2] (1998) 164 CLR 465 at 477, the distinction between the two uses was discussed and, as the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ pointed out: 'The antecedent criminal history is relevant … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifestered in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.' [33] The degree to which the respondent in this matter has shown a total disregard to the sentences that have been imposed upon him for violent crime of a like kind and other violent crimes manifests a continuing attitude of disobedience of the law and total disregard to the well being of his partners. It is, in the circumstances of the respondent's history, an overwhelming view that the most severe penalty is warranted on account of retribution, deterrence and protection of society and the moral culpability of the offender. There comes a point where the punishment meted out by the courts must act as a deterrent to the continuation of conduct which has occurred with alarming regularity in almost identical situations and with little or no seeming concern for the effects of that conduct on those persons against whom it is perpetrated…".
The applicant's long record of repeated, degrading, violent and cowardly attacks upon women with whom he is living is a matter deserving of particular focus in respect of the sentencing considerations of deterrence, retribution and community protection.
He deserves condign punishment for that offending, punishment that emphasises specific deterrence and protection of the community.
Two affidavits of the applicant's solicitor Alexandra Heffernan dated 7 May 2021 and 10 August 2021 were read on re-sentence. The August 2021 affidavit annexes a custodial report from August 2020 that refers to the applicant feeling "institutionalised". It outlines the health problems of his aging parents and step parents. He has five children to three different mothers. There is no evidence that he has had regular recent contact with any of them. His substance use and abuse is outlined, and although he states that he recognises his behaviour as problematic, there is no articulated plans for rehabilitation. In January 2021 there is a custodial note that he declined to participate in the EQUIPS program to address his offence-related behaviour.
The affidavit of May 2021 refers to an assault in custody in May 2020 for which he was treated at Wagga Base Hospital. He sustained a fractured nose and bruising to the face and back of the neck. There were requests made by him for inclusion in the methadone program which appears to be submitted as some evidence of an attempt to address his asserted long term heroin addiction.
None of this material has any positive effect on the key questions of specific and general deterrence and protection of the community.
On the question of totality, all the pre-sentence custody relates to other distinct (mainly violent) offending, except for the 5 months imprisonment for which he was sentenced in August 2018 in Queensland which was for failing to cooperate with police. Having been arrested for the (DV) offending on 13 March 2018, he was asked to provide his DNA. He continued to refuse to cooperate despite being told of the repercussions of his refusal. This is clearly discrete and separate offending to the domestic violence offending.
The period of custody since 8 August 2018 reflects other discrete and serious (DV) offences. The custody from July 2019 to March 2021 also reflects the balance of parole that he breached by committing the subject domestic violence offences.
A significant degree of accumulation is warranted. In no way is the criminality of one offence comprehended in any of the other(s): Cahyadi v R [2007] NSWCCA 1 at [27].
On the question of totality, even taking into account the 5 months served from March to August 2018 which was missed by the sentencing judge, which was for offending that entailed criminality of a different type to the plethora of domestic violence offending engaged in by the applicant, I would impose a sentence of imprisonment for 12 months for the assault and a sentence of imprisonment for the assault occasioning actual bodily harm longer than that imposed by the sentencing judge, both sentences to be served concurrently commencing on 17 July 2020.
There is no purpose to be served in stating what that longer sentence would be.

Orders

Given the error in relation to ground 1, I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2021

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