Martin v R

Facts

1. A brief summary of the facts pertaining to the robbery offence is that on 25 August 2014 the 62 year old victim came across the applicant, who was then aged 19, by chance and invited him back to his home. The victim was a widower who was apparently in the habit of inviting people to come to his home for company. Once at the victim's home a quantity of alcohol was consumed by both men over the ensuing hours. At one point the victim said he did not want to drink anymore and wanted to go and sit by himself for a period, thinking about his late wife.
2. After the victim had been sitting in his room for about half an hour the applicant came in and said, "I'm going to take your car". The victim replied, "you can't take my car, that's all I've got. I can't walk very far without my car". The applicant replied, "stiff shit" and left the victim's bedroom. He returned about ten minutes later and punched the victim numerous times to the head and face while the victim tried to protect his face with his arms. The applicant was calling the victim several names including, "you bastard" and "you cunt". The victim asked, "why are you hitting me? I've done nothing to you. Why are you calling me that? What have I done? I asked you to come have a drink with me and you're belting me up."
3. The applicant ceased assaulting the victim for a few minutes. The victim could hear ringing in his ears and his head was pounding. He had blood all over his face and in his eyes. He tried to stand up but was too dizzy and had to sit back down on his bed. He then felt a poke in his back and heard the applicant say, "I'll stab you, I'm going to take your car. If you ring the police I'll come back and finish you off". The victim replied, "I don't care what you do".
4. The victim believed that he lost consciousness and did not remember what happened next although eventually he was able to get up off the bed and walk into the lounge room. He sat on the lounge and believed that he again lost consciousness. He awoke to the applicant punching him about the head and he lost consciousness again. When he later regained consciousness the applicant was no longer present.
5. The victim made his way to his neighbour's house and the police and an ambulance were called. Meanwhile the applicant had collected the victim's wallet and keys from the dining room table, left the house and drove away in the victim's car. After driving a short distance he lost control of the car and collided with a street sign and tree causing extensive damage to the front end of the victim's car. He fled the scene of the collision. Later that evening he attended an ATM machine where he unsuccessfully tried to use a bankcard taken from the victim's wallet. CCTV footage of that event together with a fingerprint recovered from the victim's car led police to arrest the applicant on 5 September 2014.
6. The victim remained in hospital for four days. He was found to have suffered the following injuries: 1. Bilateral nasal bone fracture 2. Swelling and significant bruising to his face and head 3. Compression fracture of a rib 4. Two x 1 centimetre lacerations to the right flank which were closed with four sutures 5. One x 1 centimetre laceration to his back which was closed with Steri-Strips
7. It was agreed between the parties that each of the three lacerations referred to amounted to a "wound".

Personal circumstances of the applicant

1. A report by Dr Matthew Hearps, forensic and consultant psychiatrist, dated 10 September 2015 was tendered in the sentence proceedings and the applicant gave evidence. The learned sentencing judge reviewed this material extensively in his sentencing remarks.
2. His Honour noted that the applicant had been raised in a family where he witnessed and was subjected to a considerable degree of domestic violence. Both parents had problems with alcohol and drugs. The applicant started using alcohol at about age 12 and drugs at about age 13. He commenced using the drug known as "ice" a few months prior to the index offences.
3. The applicant left school at the age of 15 when he went into juvenile detention. He described himself as an average student and had learned to read and write but began getting into trouble at school from Year 6 with suspensions for fighting and bullying. He had some periods of employment but the last was when he was aged 18.
4. The applicant continued to have regular contact with his family and his mother was in court during the sentence proceedings.
5. The judge noted that the applicant told Dr Hearps that in the months preceding the offence he was consuming ice at the rate of half a gram per day. The applicant also referred to losing his temper on a daily basis and had come to recognise that he is more prone to becoming angry during periods when he uses drugs and alcohol.
6. The judge quoted a passage of the report dealing with the applicant's account of the offence. He noted that the version given to the psychiatrist differed in a number of respects from the agreed facts which had been tendered in the sentence proceedings. The judge was of the view that, despite the applicant's denial of this, he had endeavoured to minimise what he had done and had sought to portray himself to the psychiatrist in a better light. His Honour said that the credibility of the applicant's expression of remorse in his evidence was adversely affected for this reason.
7. Dr Hearps made diagnoses of stimulant use disorder, cannabis use disorder and alcohol use disorder. He also said that the applicant met the criteria for a conduct disorder in adolescence as well as meeting the criteria for an anti-social personality disorder. Mention was also made of the applicant having been diagnosed with depression at the age of 16 which had been treated with anti-depressant medication with beneficial effect.
8. The applicant's criminal history was a significant matter in the assessment of sentence. The judge noted that the applicant was dealt with for an offence of aggravated robbery with the infliction of actual bodily harm for which he was initially given a suspended control order for a period of two years but later called up for breach and sentenced to 2 years with a non-parole period of 6 months. The applicant was released on parole when the non-parole period expired on 22 May 2014, three months prior to the commission of the index offence.
9. The applicant also had a number of offences of assault, assault occasioning actual bodily harm and affray on his record. He had received short control orders for some of those offences but of significance, on 21 January 2014 he was placed on four bonds to be of good behaviour for periods of three years and four years. He was subject to those bonds at the time of the commission of the index offence as well as the parole order. The judge referred to the commission of offences whilst subject to such conditional liberty as an aggravating circumstance.
10. The judge took into account the difficulties of the applicant's childhood. He gave the applicant the benefit of the doubt that he was remorseful. He was unable to find that there were good prospects of rehabilitation although he noted that because of the applicant's age he could not say that there was no hope in that regard. The judge allowed for the early plea of guilty a reduction of the sentence by 25 per cent.

Grounds of appeal

1. The proposed grounds of appeal are as follows: 1. His Honour, the sentencing judge, erred in not identifying and assessing the factors relevant to the objective seriousness of the offence. 2. His Honour erred in not properly considering the issue of special circumstances/totality in the context of partially accumulating the sentence upon the period of imprisonment served pursuant to the breach of parole. 3. His Honour erred in finding the victim of the offence was a 'vulnerable person' pursuant to s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999.

Ground 1 - error in not identifying and assessing factors relevant to object seriousness

1. It was contended in written submissions on behalf of the applicant that the judge had made no attempt, with any specificity, to determine the objective seriousness of the index offence.
2. To the contrary, the judge made a quite detailed assessment of factors bearing upon the seriousness of the offence. He said after his detailed review of the agreed facts of the matter: "The victim was the subject of an entirely unprovoked and vicious assault within his own premises in circumstances where he had invited the offender to join him to have a drink. While the wounds may not have been substantial, the victim otherwise suffered significant injuries, being the bilateral nasal bone fracture and the compression fracture to his rib. He was assaulted more than once in circumstances where he could do little but attempt to defend himself, he being 62 years of age at the time, and the offender being then 19 years of age and, according to his criminal history, 180 centimetres tall and approximately 80 kilograms with a build that is described as 'muscular'. The offender returned generosity with violence, sustained by a number of individual assaults causing significant bruising and swelling apart from the injuries I have otherwise referred to. The victim was abused and his property was stolen, that is his wallet and the motor vehicle. The offender, either because he was affected by alcohol or because he was an inexperienced driver, lost control of the vehicle because of the manner in which he was driving it, and caused extensive damage to it. The offence must be considered a serious example of offences of this nature."
3. There is not merit whatsoever in this ground.

Ground 2 - error in not properly considering the issue of special circumstances and totality

1. The judge noted that the applicant's parole had been revoked by the State Parole Authority on 26 September 2014. He was thereby required to serve the balance of the parole period amounting to 1 year 2 months 29 days from 5 September 2014 (the date of his arrest for the present matters) until 3 December 2015. The judge referred to relevant authority (R v Huynh [2003] NSWCCA 239; R v Moffitt (1990) 20 NSWLR 114 and, in particular, Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145) and confirmed his understanding that it was a matter for his discretion as to whether to backdate the sentence to the date of arrest or to commence the sentence from some later date. He determined that he should exercise the discretion such as to provide for the sentence to date from the day of imposition.
2. The judge made a finding of special circumstances thus imposing a non-parole period of four years against the head sentence of six years. This was six months less than it otherwise would have been if the usual proportions provided by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were applied.
3. In written submissions on behalf of the applicant it was contended that the accumulation on the period of approximately 1 year of service of the balance of parole meant that the minimum custodial component (about 5 years) was 71.4 per cent of the overall period (about 7 years). It was submitted that "the outcome of the application of totality to the sentence imposed has rendered the finding of special circumstances illusory".
4. The judge was explicitly aware of the effect of the sentence he imposed. In relation to the finding of special circumstances and the accumulation of the sentence he said: "I have found special circumstances on the basis of your age, this being the first extended period of imprisonment that you would have been subjected to, and, as I perceive it, a need for a more substantial period of time on parole to assist you with your drug and alcohol problems and re-establishing yourself in the community. I have also taken into account, without being precise about it, the amount of time that you have already spent in custody as a result of the revoked parole from 5 September 2014 to date - just over a year. The terms imposed, taking that period into account, are in effect essentially a period of non-parole of five years and a few days with the balance of term of two years. I have also taken into account in reducing the statutory relationship between the non-parole period and the balance of term that period of revoked parole in order to provide a reasonable approximation, if one was considering the whole of the term including the revoked parole, to the non parole period representing 75% of the total term: that is, five years of a seven year term."
5. It appears obvious to me that the judge was not inadvertent and did not make any miscalculation. He was acutely conscious of the effect of the sentence he imposed and the non-parole component of it.
6. Principles applicable to the setting of a non-parole period were referred to in a non-exhaustive way in my judgment in Caristo v R [2011] NSWCCA 7 at [27]-[34]. In the present case, just as in Caristo v R, the length of the non-parole period was precisely what the judge intended with there being no inadvertence or miscalculation. The outcome allowed for a parole period of 2 years which was ample to allow for the subjective aspects his Honour referred to in this context. Given the discretionary nature of a finding of special circumstances no error is apparent.

Ground 3 - error in finding the victim of the offence was a vulnerable person pursuant to s 21A(2)(l)

1. Towards the end of the sentencing judgment the judge referred to relevant principles including the guideline judgment of R v Henry [1999] NSWCCA 111; 46 NSWLR 346. His Honour immediately continued: "It is clear that this matter, despite the age of the offender, is one substantially outside that guideline in that it is more serious. I accept, however, that the offending was not pre-planned and that it was relatively spontaneous in the particular circumstances of the offender's attendance at the victim's premises and the consumption of alcohol. Of course, not only was the offence in the victim's home, but, as referred to, the victim at the age of 62 was in my view a vulnerable person."
2. In the written submissions for the applicant it was pointed out that authority in this Court (eg R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740) is to the effect that s 21A(2)(l) of the Crimes (Sentencing Procedure) Act is concerned with a particular class of victim who need to be especially protected because they are vulnerable to criminal offences. Accordingly it was submitted that the victim in this case was not a member of such a class and accordingly the judge was in error in taking this into account.
3. The problem in relation to this ground is that the judge made no reference to s 21A(2)(l); he was speaking about the circumstances of the victim himself. It was open to the judge to take into account that the victim was vulnerable pursuant to s 21A(1)(c), which provides that in determining the appropriate sentence for an offence the court is to take into account … "any other objective or subjective factor that affects the relative seriousness of the offence".
4. It was further submitted at the hearing of the application today that because the Crown had not raised an issue as to the victim being vulnerable there was a denial of procedural fairness in the judge taking this aspect into account in a manner adverse to the applicant. I do not accept that there was such a denial. What justified reference to the victim as "vulnerable" were various matters which were obvious from the evidence.
5. The victim was 62 years of age and he was assaulted in his home by a 19 year-old man. The agreed facts made it apparent that the victim had no capacity to defend himself or his property. At one point he was roused from a state of unconsciousness by the applicant further assaulting him. His property was taken when he was further rendered unconscious.

Conclusion

1. There is no merit in any of the grounds of appeal.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed.

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