Matthew CLINTON v R

LEGISLATION CITED: Crimes Act 1900 - ss 99(1), 111(2), 114(1)(d) Crimes (Sentencing Procedure) Act 1999 - s 11

R v Howard [2001] NSWCCA 209 R v Rose [2004] NSWCCA 326 R v Patison [2003] NSWCCA 171; 143 A Crim R 118 R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R V Sukkar [2006] NSWCCA 92 CASES CITED : Silvano v R [2008] NSWCCA 118; 184 A Crim R 593 Whybrow v R [2008] NSWCCA 270 Sharpe v R [2006] NSWCCA 255 Alameddine v R [2006] NSWCCA 317 R v Davidson ex parte A-G (Qld) [2009] QCA 283 The Queen v De Simoni (19810 147 CLR 383 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Mack v R [2009] NSWCCA 216

PARTIES: Matthew Clinton Regina

COUNSEL: M Grogan - Crown H Cox - Applicant

SOLICITORS: S Kavanagh - Crown S O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2008/4860

ALLSOP P HOWIE J HISLOP J

THURSDAY 19 NOVEMBER 2009 Matthew CLINTON v REGINA Judgment 1 ALLSOP P: I agree with Howie J. 2 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court by Judge King SC (the Judge). The applicant was before the Court for sentencing for two offences that arose out of the one criminal activity. The first was an offence contrary to s 111(2) of the Crimes Act being an aggravated entering a dwelling house with intent to steal. This is an offence carrying a maximum penalty of imprisonment for 14 years. The second offence was demanding property with menaces contrary to s 99(1) of the Crimes Act for which the maximum penalty is imprisonment for 10 years. In addition the applicant asked the Judge to take into account four matters on a Form 1 when sentencing for the s 111(2) offence. The first and third matters were offences of entering a building with intent contrary to s 114(1)(d) of the Crimes Act, the second matter was possessing cannabis and the fourth larceny. 3 The Judge sentenced the applicant on the s 111(2) offence to a term of imprisonment made up of a non-parole period of 3 years and a balance of term of 1 year to date from 1 June 2007. His Honour sentenced the applicant on the s 99(1) offence to a term of imprisonment comprising a non-parole period of 1 year and 6 months with a balance of term of 6 months to date from 1 June 2007. The applicant is eligible to be released to parole on 31 May 2010. 4 There was an agreed statement of facts that can be summarised briefly. At about 3am on 1 June 2007 the applicant entered the home of the victim, the male homeowner aged 50, by further pushing open a window in the rear of the house. The victim was awoken by noises made by the applicant. He looked out of his bedroom door and saw the applicant moving from the hall into the kitchen. He called out, "What's going on?" and the applicant replied, "Don't fuck with me". 5 The victim moved to the kitchen and turned on the light. The applicant again warned the victim, "Don't fuck with me" and asked where he kept his money. When told there was none, the applicant asked for his cards. The applicant moved to the living room and picked up a shirt from a clothes rack and threw it over his head to conceal his face. He was now armed with a knife that he had taken from the kitchen. Again he warned the applicant not to "fuck" with him and demanded money, cards or mobile phones. 6 The applicant moved into the hallway and from a bookshelf took keys, a wallet and a moneybox. He entered the victim's bedroom where he placed the objects on the bed. He emptied the moneybox and took some notes from the wallet. He then moved past the victim into the living room. While he was kneeling down to take a play station out of the television cabinet, the victim struck him over the head with a wooden stool. The applicant turned towards the victim who struck him again with the stool. 7 The applicant was bleeding from the head and moved to the bathroom. He placed the notes he had removed from the wallet on the sink. He then moved out of the bathroom and lunged at the victim with the knife. The victim attempted to fend him off and in doing so placed his hand on the applicant's face. The applicant bit down on two fingers of the victim's hand. The victim gouged the applicant's eye's causing him to scream and release the victim's fingers. The victim grabbed hold of the applicant, walked him to the front door and pushed him outside. 8 The applicant later attended the Emergency section of the Nepean Hospital and police were notified. The applicant was arrested and, when interviewed, gave the police a false account of how he sustained his injuries. 9 The applicant was 36 years of age. He has a criminal record dating from 1991 for offences of dishonesty including break and enter offences. He was sentenced to imprisonment in 1996 to an aggregate sentence of a minimum term of 18 months and an additional term of 6 months. He received a suspended sentence in Brisbane in 1998. He was sentenced to imprisonment in 1999 for dishonesty offences including a break, enter and steal. In 2001 he received a prison sentence for driving, drug and dishonesty offences including a break, enter and steal. In 2003 he was fined for an assault and driving offences. He was placed on a suspended sentence for driving offences in 2004. 10 There was a pre-sentence report in evidence. It sets out his background but it is of little relevance having regard to his age and criminal record. He has two children from different relationships but has no contact with them. The applicant had been living with his brother prior to his arrest and incarceration for the subject offences. He left school at 14 years. He was unemployed for the six months prior to the offending. The applicant said that his work history was affected by his drug usage. He claimed to have commenced using alcohol and drugs to overcome emotional difficulties after his parents separated when he was aged 14. He has abused various types of illegal substances and stated he was drug affected at the time of the offences for which he was being sentenced. At the time of the report he was on a methadone programme. He has been involved in various drug and alcohol rehabilitation courses in the past without completing them. 11 The applicant gave evidence before the Judge. He said that he had broken up from a long-term relationship and his ex-partner told him she did not want him to be at the birth of their child. At this time he was using Valium and "ice". He was also on a methadone programme. He said that he was very emotional about being unable to be present at the birth. On the day of the offending he had taken "a whole heap of pills". He could not remember the offence. He remembers being at the back of the victim's house but the next he could remember was being covered in blood. He went to the hospital where he received about 20 stitches. He apologised to the victim who was present in court. He accepted that he was on bail for one of the matters on the Form 1 at the time of these offences. He expressed a need for further counselling in respect of his use of drugs. He stated that for a period of about 6 years he had remained drug free. 12 The applicant's mother gave evidence. She visits the applicant weekly in prison and believes he has become more aware of what he did and regrets his conduct. She will continue to support him and believes that he is "very focused on what he wants to do with the rest of his life". 13 There are two grounds of appeal as follows:

1. His Honour erred in giving insufficient weight to the applicant having served a period of nearly 16 months on strict protection.

2. His Honour erred in finding that the injuries suffered by the applicant did not amount to extra curial punishment. 14 As to the first ground of appeal, there was in evidence a letter from the Senior Assistant Superintendent of the prison where the applicant was housed as follows:

Matthew Clinton was received into custody at the Metropolitan Remand and Reception Centre on the 3 rd day of June 2007.

On the 4 th day of June 2007 he was assessed for placement in a specially managed area of protection (SMAP) at his own request.

On the 10 th day of 2007 (sic) a further request was received from Matthew expressing a desire to be treated as a Limited Association (sic). A protection threat assessment was undertaken and as a result Matthew was managed as protection with Limited Association.

On the 18 th of June 2007, Matthew submitted an application stating that he feared for his safety and wished to remain in Limited Association.

At each subsequent review Matthew has submitted written request to remain on protection with Limited Association.

Matthew is currently accommodated as Protection with Limited Association.

Matthew remaining on protection with Limited Association will be determined at subsequent reviews. It would be envisioned that once transferred to a jail of classification and the lack of any direct threat or threat in close proximity to Matthew, his protection level may be reduced or removed.

At any time Matthew can request in writing to be removed from protective custody. 15 The applicant gave evidence that, when he had come into custody in relation to one of the matters on the Form 1, he had been menaced by some inmates, one of whom had threatened to stab him. He had been released but, when he returned to custody following the commission of these offences, he recognized associates of the gang and again requested protection. Initially he had been placed in an open form of protection but, fearing that he was still at risk from these people, he had requested strict protection. He had been on Limited Association from 10 June to the date of sentence. 16 The Judge in his remarks stated:

Since he has been in custody he has apparently not received any institutional misconduct charges, at least at the date of the presentence report, and there is no evidence before me of any further institutional misconduct charges since that time. He was apparently not considered a management problem in the wing and [the applicant] indicated to the presentence officer that he had completed a computer course since entering custody. He indicated also that he was in protective custody in the MRRC under a status of "SMAP" status, indicating he had limited association with other inmates

The Judge referred to the letter that has been set out above, and then went on:

On the basis of the content of that letter, it seems that [the applicant] can, of his own volition, terminate the limited association protection that he is currently utilising. I note his evidence today that he does not intend to do so, but I also note that his evidence in respect of why it was that he had placed himself into Limited Association was of an extremely vague and indefinite nature, being based apparently more on rumour than any past actual threat.

While I accept that he may have so far has spent a period of time in protection and Limited Association that has had some restrictions on him, it is capable of being terminated by him at any time. It is also capable of being dealt with by him being placed in a prison at which there is no risk. While on the one hand it may have placed some restrictions on him, it is also evident that the situation is that he is currently serving his sentence in what might be regarded as far less stressful circumstances than being in the general population.

A final comment in relation to the protection and Limited Association; I find that it has little significant relevance to the question of sentencing of [the applicant]. 17 The complaint is that the Judge failed to comprehend the evidence and thereby gave insufficient regard to the fact that the applicant had spent part of his period on remand in more onerous conditions even if it did have the consequence that he felt less stressful and notwithstanding that he had voluntarily sought that protective status. 18 It was submitted that for a period of 15 months the applicant had been in a "very harsh and rigorous regime" and that the sentencing judge should have given to that period "the equivalence of at least 20 months or more ordinary prison time". It was suggested that there were authorities supporting that approach. One authority was said to be R v Howard [2001] NSWCCA 209 at [18]. The paragraph cited is as follows:

18 It is the fact, as Kirby J pointed out in AB (1999) 73 ALJR 1385 at 1408, that every year in protective custody is equivalent to a significantly longer loss of liberty under the ordinary conditions of prison. It is also the fact that such form of detention can deny to a prisoner the full opportunities for programs and courses available to mainstream prisoners. Additionally, any prisoner with a history of being on protection, particularly one who has killed or abused a child, is potentially a marked man for whom the risk of reprisal is high. Had his Honour ignored those circumstances then error would have been demonstrated. However, it was a matter expressly acknowledged and said to have been taken into account. The submission advanced in this regard to the effect that "given the length of the head sentence, it would seem that his Honour gave inadequate weight to it", needs to be examined in the light of what is an appropriate sentence for an offence of manslaughter of this kind. 19 There is nothing in that statement or in the decision generally that suggests that a judge should apply a mathematical formula to determine the effect of a period on protection. The Court simply decided that the judge said he was taking the offender's period on protection into account and it could not be said from the sentence imposed that he had given insufficient weight to that factor. 20 The other authority is R v Rose [2004] NSWCCA 326 at [35]. That was a Crown appeal against sentence in respect of an order under s 11 of the Crimes (Sentencing Procedure) Act 1999. In dismissing the appeal the Court indicated that there was no error in the judge's exercise of discretion. The relevant passage of the judgment is:

35 The extent and nature of the respondent's pre-sentence custody was a matter properly taken into account by her Honour. It amounted to four months and seven days and had been spent in protective custody. There was ample evidence, which her Honour was entitled to accept, that the respondent's time in protective custody had been significantly more onerous than normal prison time. It was accordingly open to her Honour to give to that period an equivalence of at least six months or more of ordinary prison time. (AB v The Queen (1999) 198 CLR 111 at para 105, R v Howard [2001] NSWCCA 309 at [18]). 21 This decision is not authority for a mathematical approach to determining the relevance of time spent in protection. Specifically it does not support a proposition that 4 months and 7 days on protection equals 6 months of ordinary prison time. The Court was merely stating that it was not erroneous in the circumstances of that case for the particular Judge to take it into account the respondent's period on protection in that way when determining to defer passing sentence instead of imposing a custodial sentence there and then. 22 At the hearing of the application counsel for the applicant handed to the Court a copy of the decision in R v Patison [2003] NSWCCA 171; 143 A Crim R 118. There Carruthers AJ stated:

86. When one considers the circumstances under which the respondent will serve his sentence, it must be borne in mind that he suffers the disadvantage of not only having been a police officer but he was also, and will continue to be, an informer.

87. In these circumstances the following passage from the judgment of Lord Lane CJ in Davies and Gorman (1978) 69 Cr App R 319 at 322 is apposite. "We are told, and it is submitted with some force and it is perfectly good sense, that in deciding what Davies' sentence ought to be by itself we must bear in mind that every year he will serve could be the equivalent of 18 months or two years in a happier atmosphere."

88. This passage was cited with approval by Kirby P (as he then was) in R v Astill (No 2) (1992) 64 A Crim R 289 at 294-295 and subsequently in AB v The Queen (1999) 198 CLR 111 at 152. The passage had earlier been quoted by this Court in R v Cartwright (1989) 17 NSWLR 243 at 255. 23 Giles JA delivered the principle judgment of the Court and Bell J agreed with him. The views of Carruthers AJ are not replicated in the judgment of Giles JA. With respect, I do not believe the opinions of Lord Lane CJ in 1978 in relation to English custodial conditions have any relevance to the situation in this State in 2009 even if they were relevant in 2003. 24 In any event, decisions about the significance of protective custody given before R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 should be read in the light of that decision and the different approach that was there taken to the relevance of the fact that a person was in protective custody. The change to the approach previously taken was as a result of information provided to the Court that revealed that protection did not necessarily result in harsher prison conditions. The change in approach was continued in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304, was approved in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [177] and has been applied to cases where assistance has been given to authorities: R v Sukkar [2006] NSWCCA 92. 25 For my part I do not believe that it is appropriate for a court to adopt a mathematical formula to convert time spent in protection to an equivalent period spent in the general prison population. There are too many variables and there is not always a significant difference between being on protection and being part of the normal prison population. There may well be benefits derived from being on protection that offset some of the deprivations. 26 The Judge gave "little significance" to the period served on protection because it was voluntarily sought and because his Honour found that it was based "more on rumour than any past actual threat". In Durocher-Yvon, it was stated (my underlining):

22. In the present case the protective custody is not due to the nature of the offence for which the sentence is being served, or because the applicant gave assistance to the authorities or for some other reason that is related to the sentence imposed by Judge Nield. There will be any number of reasons why a prisoner may choose to seek protection during the course of serving a sentence and it is not a matter that must always result in a reduction of the sentence that would otherwise be appropriate ……………………….

23. What this application does illustrate is that, although the fact that the offender may be required to serve his sentence in protective custody is a relevant matter in determining the sentence to be imposed, a sentencing court should not automatically grant a reduction of the otherwise appropriate sentence simply because the offender has been, or will be, on protection during the course of the sentence. In some cases such as prison informers or persons giving assistance to the authorities, the court may confidently assume that the offender will spend most, if not all, of the sentence in some form of strict protection which will carry with it severe physical and mental hardships over and above the normal prison experience. In other cases, such as child sex offenders, the court should recognise that to a degree the range of sentences imposed already has an element of leniency built into it because sentences for such offences are normally reduced to take this factor into account.

24. But in other cases, especially where the offender has sought protection, there may have to be closer scrutiny given to just what effect that factor should have on the sentence to be imposed having regard to the seriousness of the offence, the purposes of punishment and the nature of the conditions of custody which the offender may have to bear by reason of his or her protected status. There are undoubtedly other cases like the present where there might be good reason to doubt that a significant discount would be justified. 27 Paragraph 23 of that judgment was reviewed in Mostyn in relation to persons who have provided assistance but paragraph 24 applied to this case and the Judge was entitled to scrutinise the issue of the applicant's protective custody having regard to the fact that it was voluntarily entered into and having regard to the reasons given for seeking protection. I have less sympathy for an offender who was in protective custody, is released and then by reoffending is returned to custody and voluntarily seeks to be placed on protection again. Further, I note from the affidavit filed in this Court by the applicant that he was sentenced in September and by February of the next year had forgone his protective status. 28 The deprivation imposed upon the applicant by reason of his protective status was chiefly that he was permitted to be outside his cell in free association within the particular pod of prisoners with whom he was housed for three hours a day rather than for a period of six hours a day that he would have enjoyed had he been in the general prison population. Yet he had been able to be involved in some prison courses, including a Health Survival Program and had commenced a computer course. He also had a job as a sweeper. There was no suggestion that the applicant's prison environment was physically harsher than that experienced by other prisoners. 29 I doubt that his Honour's approach was so erroneous as to warrant this Court's interference with the exercise of his discretion but I will consider whether it may have led to an excessive sentence after I deal with the second ground of appeal. However, I reject the submission that his Honour should have treated the applicant's 15 months on protection as the equivalent of 20 months spent in the general prison population. 30 The second ground complains that the Judge failed to take into account extra-curial punishment. This ground relates to the injuries suffered by the applicant as a result of being struck over the head with a stool while he was engaged in stealing from the premises and armed with a knife. 31 This Court has held that extra-curial punishment is a matter that can be taken into account in determining the appropriate sentence to be imposed upon an offender. It can be in the form of retribution meted out by members of the public or injuries suffered by the offender as a result of the commission of the offence: see Silvano v R [2008] NSWCCA 118; 184 A Crim R 593. The issue was most recently considered by this Court in Whybrow v R [2008] NSWCCA 270 where it was held that "multiple serious injuries" suffered by the applicant were relevant to an assessment of the sentence to be imposed upon him for three offences of dangerous driving causing death or grievous bodily harm arising from the motor vehicle accident in which he suffered the injuries. 32 However, when the injuries are inflicted by the victim against whom the offence is being committed, the court is entitled to take into account whether the act that caused the injuries was an unreasonable reaction by the victim to the acts of the offender and the degree of the injury inflicted: Sharpe v R [2006] NSWCCA 255 at [61] to [67], see also Alameddine v R [2006] NSWCCA 317. Another relevant factor may be the seriousness of the offending when compared with the punishment inflicted: see the discussion in R v Davidson ex parte A-G (Qld) [2009] QCA 283. 33 In the present case the Judge stated in his remarks:

[The applicant] has given further evidence today as to what he alleges of the sequelae of the injury occasioned by the application of the stool to his head by the victim……….. as requiring that he be placed on an anti-inflammatory and causing him to have ongoing headaches. I note that there is no evidence before me from the prison as to his being on any anti-inflammatory or why such a drug would be used in respect of a head injury that consisted of lacerations which were dealt with by way of 20 stitches.

I have been asked by his counsel to take into account the head injury as an extra curial punishment. Counsel relies on the case of R v Daetz; R v Wilson (2003) 139 A Crim R 298 at 411, where it was stated that a sentencing court in determining what sentence it should impose on an offender can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.

I accept that [the applicant] received some lacerations and I accept that he received some 20 stitches in relation to that. I do not accept that this was a serious injury or could constitute a serious loss or detriment. I note that his evidence in relation to causing him current headaches and requiring the prescription of an anti-inflammatory I have found to be most unconvincing. In those circumstances, I do not propose to accept that I should take into account in sentencing him that concept of extra curial punishment. [The applicant] received injury from the victim the offence that he brought on himself by committing the offence in violating the victim's home and, as I said, I do not accept that it is a serious or significant nature. 34 It was submitted that the applicant "was entitled to have regard paid to [extra-curial punishment] (given that he clearly suffered significant injuries which required surgery and bled very heavily from the wounds at the scene)". I do not accept that submission. The applicant had no such entitlement and it was a matter for the judge to determine the weight to be given, if any, to the injuries the applicant suffered. On the material before the Judge they were relatively minor and the actions taken by the victim could not in any way be said to be disproportionate to the threat posed by the applicant to the victim's property or his person. In any event, I would have come to the same conclusion as his Honour. Material placed before this Court does not indicate that his Honour misunderstood the nature of the injury. 35 It is submitted that if this Court found error, some other lesser sentence was warranted. Referring to statistical information held by the Judicial Commission the applicant notes that the sentence "fell within the top 21 per cent of all sentences imposed". As I have noted on other occasions, the statistics reveal that the maximum penalty seems to have little or no influence on the sentences being imposed. As against a maximum penalty of 14 years no sentence of more than 6 years has been imposed and of 60 cases only 5 exceed 4 years. Almost 75 per cent of the cases received sentences of 3 years or less. 36 But in any event the applicant was being sentenced for two offences with the matters on the Form 1 being taken into account. The Judge imposed concurrent sentences for the offence of aggravated entering with intent to steal and the demand property with menaces. He stated that he was adopting this course because he had taken into account, as matters of aggravation for the entering offence, the facts of the demand property offence. With respect that was an erroneous approach. 37 The applicant was charged with two offences to comprehend the whole of the criminality arising from one criminal activity. The Judge could not take into account the demand at knifepoint on the enter offence because the latter offence only involved an intention to steal. It was an aggravating factor of the s 111(2) offence that the applicant was armed but the s 99(1) offence involved the use of the knife to threaten the victim while demanding property. That was not conduct encompassed by the s 111(2) offence. Had the s 99(1) offence not been charged, the Judge would not have been entitled to take into account the use of the knife to demand property because that would be taking into account a different offence than that charged and would have breached the De Simoni principle. 38 The criminality arising from the entering offence could not comprehend the criminality arising from the demand property offence. This Court has repeatedly and consistently stressed that concurrent sentences are not justified simply because two offences arise from the same act of criminality: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 applied most recently in Mack v R [2009] NSWCCA 216. 39 The Judge's discretion miscarried principally by failing to impose cumulative sentences for the two offences. Further a sentence of two years for the s 99(1) offence was arguably inadequate having regard to the fact that a knife was used against a householder in his own home. In any event even for an offence under s 111(2) the sentence was very lenient having regard to the number of aggravating features that were present. They included the fact that the applicant armed himself, used corporal violence, and inflicted actual bodily harm as well as the charged aggravation of knowing a person to be in the house. Further, the applicant was on bail, with a criminal record that did not assist him and he had matters on a Form 1 to be considered. The starting sentence before discount was 6 years, a sentence less than half of the maximum penalty. 40 I doubt that the overall sentence imposed sufficiently reflected the applicant's criminality. The courts should impose salutary sentences upon persons who not only unlawfully enter into homes, knowing that persons are present, but also have the audacity to threaten or attack the householder who merely seeks to protect his or her property or person. I also doubt that the present sentence appropriately denounces that conduct or offers sufficient deterrence to protect members of the community. This applicant defied the householder by continuing to look for items to steal, first by making verbal threats and then by threatening him with a knife. Even after he was wounded, he lunged at the victim with the knife and then struggled with him biting the victim's fingers. 41 I propose the Court order that the application for leave is granted but the appeal dismissed. 42 HISLOP J: I agree with Howie J. **********

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