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[2009] NSWCCA 305
respondent. Leave to appeal granted; appeal against sentence dismissed. The Court found errors concerning the De Simoni principle and consideration of possible summary disposal, but concluded that neither...
The Court of Criminal Appeal identified two sentencing errors. The judge should not have treated the police officer's bruising as an aggravating feature when sentencing McIntyre for the s.58 assault, and should not have assumed that an early guilty plea ruled out considering whether the offence could have been dealt with summarily. The Court nevertheless concluded that the second point did not reduce the appropriate sentence, and that the sentences, viewed in light of the violence, the vulnerable victim, the police assault and McIntyre's record, were not manifestly excessive. Leave was granted, but the appeal was dismissed.
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In McIntyre v R [2009] NSWCCA 305, the New South Wales Court of Criminal Appeal considered an application for leave to appeal against sentences imposed after guilty pleas to two offences: assault occasioning actual bodily harm under s.59 of the and assaulting a police officer in the execution of duty under s.58. Johnson J delivered the substantive reasons. Macfarlan JA and Blanch J agreed with those reasons. [1]-[3]
1 cited instrument linked from this judgment.
The two offences arose on 25 July 2008. McIntyre, then 38, lived with his mother in a granny flat. He accused her of having killed his father, threatened to kill her, grabbed her by the throat and punched her at least twice. He later picked up a large carving knife and threatened to stab her. She escaped to the nearby house where other family members lived. The judgment records bruising to her cheek and shoulder and soreness in her throat. It also records that she had significant mobility problems, including a cast on her ankle and recent joint replacements, which McIntyre knew about. [7]-[14]
After police attended and arrested McIntyre, he was taken to Quakers Hill Police Station. During the process of fingerprinting him, he punched Senior Constable Perkins in the face. The agreed facts referred to bruising and swelling and minor medical treatment. [15]-[16], [30]
The Crown elected to have both offences, which could be dealt with summarily as Table 2 offences, prosecuted on indictment. In the District Court, McIntyre received a total effective sentence of two years and six months, with a non-parole period of one year and eight months. [4]-[5], [25]-[27]
The appeal raised three questions: whether the sentencing judge breached the De Simoni principle by relying on the officer's injury; whether the judge wrongly excluded the availability of summary disposal from consideration; and whether the sentences were manifestly excessive. The Court found errors on the first two grounds, but dismissed the appeal because no lesser sentence was warranted. [29], [56]-[59], [69]-[71], [83]-[86]
The first ground concerned the relationship between the offence of conviction and more serious offences. The Court explained that a sentencing judge may consider the offender's conduct, but must not take account of circumstances of aggravation that would have warranted conviction for a more serious offence. The usual comparison is made by considering the maximum penalties. [34]
The s.58 offence carried a five-year maximum. Section 60(2) provided for the more serious offence of assaulting a police officer in execution of duty and thereby occasioning actual bodily harm, with a seven-year maximum and a standard non-parole period of three years. The Court considered s.60(2) more serious for the purpose of De Simoni. [35]-[37]
The officer's bruising and swelling were not merely neutral background facts. The Court treated the agreed statement and the Crown's sentencing submission as evidence of actual bodily harm. The sentencing judge described the s.58 offence as serious and said it had “resulted in some injury”. The Court was satisfied that she had considered the injury when assessing objective seriousness. That was a breach of De Simoni. [30]-[32], [46]-[50]
The Court emphasised a practical sentencing safeguard. When the charge is assault, rather than the more serious offence that includes actual bodily harm, the agreed facts should not include evidence of actual bodily harm. If such material is tendered, the judge should expressly state that it is disregarded. The Court also noted that the sentencing judge had not received assistance on the issue from counsel. [51]-[55]
The second ground concerned the possibility of summary disposal. The sentencing judge reasoned that the early guilty plea and the 25 per cent plea discount meant there should be no further allowance because the case could have been heard in the Local Court. The Court said this approach failed to identify and apply the relevant principles. A plea discount and summary disposal are not mutually exclusive considerations. [58], [60]-[62]
But the Court did not treat summary disposal as an automatic discount. It said there was no fixed rule and that theoretical availability alone was insufficient. A court must examine whether the particular offence was truly a Local Court matter and whether the prosecution election to proceed on indictment was clearly inappropriate. [62]-[64]
Here, McIntyre had an extensive record of violent offences, including assaults on police and other officers. The s.58 assault was connected to the events that led to his arrest for the assault on his mother, but occurred at a different place and time. The Court found that it was not simply an offence dragged into the District Court by the more serious s.59 offence. Given the seriousness of the police assault and the history of offending, prosecution on indictment was reasonable. Summary disposal therefore did not assist him. [64]-[67]
On manifest excess, the Court considered the circumstances of both offences and the offender's history. It described the s.59 offending as a prolonged and unprovoked assault on a vulnerable woman in her home, including physical force and threats with a knife. It considered the sentencing judge's assessment of seriousness generous to McIntyre. [73]-[74]
For the s.58 offence, the Court excluded the officer's injury from the assessment, but still regarded the punch to the officer's face as a significant act of violence. It also referred to the importance of general deterrence in assaults on police, and to the relevance of McIntyre's history to personal deterrence and community protection. [75]-[79]
The Court noted that the sentences were partly cumulative because there were two crimes and two victims, but only three months of custody was solely referable to the s.58 offence. It concluded that neither sentence was manifestly excessive and that no lesser sentence was warranted in law. [80]-[85]
The judgment does not present itself as creating a new general test for De Simoni or for summary disposal. Instead, it applies existing principles to sentencing facts and states practical guidance about how those principles operate.
For De Simoni, the Court relied on the rule that an offender cannot be sentenced for an offence by taking account of circumstances that would warrant conviction for a more serious offence. It applied that rule to the distinction between s.58 and s.60(2), and found that actual bodily harm to the officer could not aggravate sentence for the s.58 conviction. [34]-[50]
The judgment makes the sentencing record itself important. An agreed statement of facts can contain material demonstrating a more serious offence than the one being sentenced. If it does, there is a risk that the sentencing judge will rely on that material, even if the parties have not addressed the legal issue. The Court's guidance was that such injury evidence should not be tendered in a sentence for assault, and that a judge should expressly disregard it if tendered. [49]-[55]
On summary disposal, the Court clarified that the guilty plea discount does not, by itself, remove the issue from consideration. The relevant question is not simply whether the offence was legally capable of summary disposal. The Court referred to the nature of the case, the prosecution's election and whether the offence was truly a Local Court matter. [61]-[67]
The decision therefore distinguishes between identifying an error and deciding whether it changes the sentence appeal outcome. The Court found two errors, but separately assessed whether a lesser sentence was warranted. It held that the summary disposal point did not assist on the facts and that the De Simoni error was a minor passing reference. [83]-[85]
The materials supplied contain no later judgments or subsequent treatment of McIntyre. It is therefore not possible from this judgment alone to describe how later courts applied, limited or questioned it.
At [34], the Court states that a judge may consider an offender's conduct, but cannot take account of aggravating circumstances that would warrant conviction for a more serious offence. In plain English, sentencing cannot be used to punish a person as if convicted of an offence that was not the offence of conviction.
At [43], the Court explains that when an assault causes actual bodily harm, the offender may be liable for a more serious offence if bodily harm is an element of that offence. For an assaulted police officer, the Court identified s.60(2); for a victim who is not a police officer, it identified s.59. The relevance here was that the officer's injury pointed towards an offence more serious than the s.58 offence for which McIntyre was being sentenced.
At [49], the Court concluded that the sentencing judge had regard to the injury when assessing objective seriousness. This finding distinguishes a mere recital of facts from reliance on those facts as part of the sentencing assessment. The preceding paragraph recognises that simply repeating facts does not necessarily prove a De Simoni breach; the Court found actual reliance in this case. [48]-[50]
At [55], the Court gives practical guidance: injury evidence that constitutes actual bodily harm ought not be tendered when sentence is being passed for assault alone. If it is tendered, the sentencing court should make clear that it is disregarded. This is directed to the integrity of the sentencing process and the risk that facts relevant to a more serious offence will affect the sentence for a lesser offence.
At [62], the Court states that there is “no fixed rule” about arguments based on possible summary disposal and that such availability does not universally reduce sentence. It adds that the “bare theoretical possibility” of Local Court disposal is not enough. In plain English, the argument depends on the circumstances, rather than arising automatically whenever the law permits summary disposal.
At [84]-[85], the Court explains the outcome. The sentencing errors were established, but the summary disposal point did not materially help McIntyre and the De Simoni error was minor. The Court then concluded that no lesser sentence was warranted in law. The appeal was dismissed, notwithstanding the identified errors.
The De Simoni aspect is relevant where a person is sentenced for an offence that does not require proof of a particular injury, while the sentencing material describes injury that may constitute an element of a more serious offence. The key comparison in McIntyre was between s.58 assaulting a police officer and s.60(2) assaulting a police officer and occasioning actual bodily harm. [35]-[50]
The precedent is particularly pertinent where an agreed statement of facts includes medical treatment, bruising, swelling or other consequences of an assault, and the sentencing remarks refer to those consequences when assessing seriousness. The judgment does not say that every mention of injury is necessarily a breach. It distinguishes bare recital from actual reliance, and finds a breach where the sentencing judge used the injury in assessing objective seriousness. [46]-[50]
The summary disposal discussion is relevant where an offence could have been heard summarily but was prosecuted on indictment, and the offender argues that the loss of summary disposal should affect sentence. The case indicates that the court will look beyond theoretical eligibility to the circumstances of the offence, the offender's history, the connection between charges and the basis for the prosecution election. [62]-[68]
The decision also concerns cases involving assaults on police officers. It records that general deterrence is important in that context, while recognising the need to assess the individual circumstances and the offender's history. [76]-[79] Its application should not be separated from the specific statutory charges and sentencing context considered in the judgment.
The judgment supplied here contains no decisions issued after 18 December 2009. It cannot establish how later courts have treated McIntyre, whether they have followed it, or whether they have confined any aspect of its reasoning.
Within its own reasons, the Court relied on earlier authorities for the propositions it applied. It cited The Queen v De Simoni for the restriction on sentencing for circumstances that would warrant a more serious conviction. It cited R v Abboud concerning the relevance of bodily harm to assault offences and the treatment of injury evidence. [34], [45]
For summary disposal, the Court referred to R v Crombie, R v Gent, McCullough v R and Edwards v R. It used those decisions to state that there is no universal discount and that a merely theoretical possibility of Local Court disposal is insufficient. [62]-[64]
The judgment's own outcome is thus clear: it applied existing principles to find two sentencing errors, but did not allow the appeal because it found no basis for a lesser sentence. The materials do not support any further statement about later precedential treatment.
The judgment does not set out a comprehensive threshold for when a sentencing judge's reference to injury becomes impermissible reliance. It says that bare recital is not necessarily enough, but found reliance where the judge said the offence “resulted in some injury” while assessing objective seriousness. The precise line will depend on the sentencing remarks and the context in which injury evidence is used. [47]-[50]
The Court says injury evidence amounting to actual bodily harm ought not be tendered for sentencing on an assault charge, and that any tendered evidence should be expressly disregarded. The judgment does not discuss every possible form of evidence about the circumstances of an assault, or how a sentencing court should treat evidence that is relevant to another lawful sentencing purpose but also suggests a more serious offence. [54]-[55]
The summary disposal analysis is also deliberately case-specific. The judgment does not create a numerical test or exhaustive list of factors. It identifies the offender's record, the seriousness of the police assault, the relationship between the two offences and the Crown election as relevant in this case. It leaves open how those considerations weigh in different circumstances. [62]-[68]
Finally, the Court found error but dismissed the appeal under the statutory approach it applied. The judgment does not establish that every similar error will be immaterial. Its conclusion depended on its assessment that the De Simoni reference was minor, summary disposal did not assist, and the sentences were not manifestly excessive on the whole record. [72], [82]-[85]
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The Applicant's Subjective Circumstances 18 The Applicant was born in 1970. He was 38 years old at the time of the offences and 39 years of age at the time of sentence. 19 The Applicant is a single man with no children. Before the District Court was a report dated 11 September 2008 of Dr Adam Martin, forensic psychiatrist with Justice Health. Dr Martin had examined the Applicant at the request of the Local Court. The Applicant informed Dr Martin that he had grown up in Blacktown and that his father had schizophrenia and had committed suicide in 1996. The Applicant had completed an apprenticeship in boiler making at the age of 19 years. He had not worked since 2002. 20 In the early 1990s, the Applicant had been admitted to Cumberland Hospital after experiencing auditory hallucinations following amphetamine use. A diagnosis of bipolar disorder had been made. There was said to have been a pattern of binge alcohol use, together with use of a range of illicit drugs. 21 Dr Martin expressed the opinion that it was likely that the Applicant suffered from a mental illness, probably bipolar disorder or schizo-affective disorder, and that he probably fulfilled as well the diagnostic criteria for alcohol abuse or poly-substance dependence. The Applicant appeared to be of average intelligence. Dr Martin considered that it was unlikely that the Applicant would be found to be a mentally ill person under the Mental Health Act 2007, but recommended that he be reviewed regularly by a psychiatrist and mental health workers. 22 The Applicant has an extensive criminal history, including offences of violence, property damage, drink driving and dishonesty offences. Confining attention to offences of violence, the Applicant's record reveals the following:
Date of Sentence Offence Sentence 8 February 1988 Resist arrest 12 months' probation 23 May 1988 Assault police 12 months' bond 5 November 1990 Sexual intercourse with a child between 10 and 16 years Imprisonment for three years and four months with a non-parole period of two years and six months 28 October 1994 Malicious wounding 450 hours' community service 15 January 1996 Assault police $500.00 fine 15 January 1996 Resist police $200.00 fine 26 September 1996 Assault $650.00 fine 26 September 1996 Resist arrest $500.00 fine Assault police in execution of duty 25 August 1997 Common assault (2) $300.00 fine on each charge Resist officer in execution of duty 12 July 2002 Resist officer in execution of duty $150.00 fine 17 December 2002 Common assault Four months' imprisonment 23 February 2004 Common assault (2) Four months' imprisonment on each charge 22 June 2004 Common assault Three months' imprisonment 29 April 2005 Common assault 12 months' imprisonment with a non-parole period of six months 23 November 2005 Common assault Three months' imprisonment on each charge Resist officer in execution of duty 22 February 2006 Common assault Sentence of imprisonment for nine months with a non-parole period of five months, suspended on entering s.12 bond to be of good behaviour for nine months 7 September 2006 Call-up for breach of bond given on 22 February 2006 Imprisonment for nine months with a non-parole period of five months 15 September 2006 Common assault Three months' imprisonment for common assault; s.9 bond to be of good behaviour for 18 months on contravene ADVO matter Contravene apprehended domestic violence order (by 2) 29 June 2007 Assault law officer (not police) Six months' imprisonment
23 Documents tendered in the District Court revealed that the offences for which the Applicant was sentenced on 15 September 2006 involved an assault upon his mother at their Dean Park home, at a time when he was subject to an apprehended domestic violence order designed to protect her from him.
History of Proceedings in the Local Court and District Court 24 Having regard to submissions made in support of the present application, it is appropriate to refer to the history of proceedings following the Applicant's arrest on 25 July 2008. 25 It appears that the Applicant was originally charged with the offences for which he was sentenced, together with more serious charges of using an offensive weapon with intent to commit an indictable offence and detaining a person with intent to obtain an advantage. On 30 January 2009, the lastmentioned charges were withdrawn. The Applicant pleaded guilty to the ss.58 and 59 charges and was committed for sentence to the District Court with respect to those matters. 26 Offences under ss.58 and 59 Crimes Act 1900 are Table 2 offences which are to be dealt with summarily by the Local Court unless the prosecutor elects to have the offences dealt with on indictment: s.260(2) Criminal Procedure Act 1986; clause 1, Table 2, Schedule 1, Criminal Procedure Act 1986. On indictment, the maximum penalty for each offence is imprisonment for five years. If dealt with summarily in the Local Court, the maximum penalty for each offence is imprisonment for two years or a fine of 50 penalty units or both: s.268(2)(a) Criminal Procedure Act 1986. 27 Accordingly, the Crown elected that the ss.58 and 59 offences be prosecuted on indictment. It may be taken that the Crown had regard to paragraph 8 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions (NSW) in this regard. 28 The significance of the Crown election will be referred to shortly when addressing the second ground of appeal.
Ground 1 - Breach of De Simoni Principle Concerning Offence of Assault Police Officer in Execution of Duty 29 The first ground of appeal asserted that the sentencing Judge breached the principle in The Queen v De Simoni (1981) 147 CLR 383 by taking into consideration injury to the police officer in passing sentence with respect to the s.58 offence. 30 The statement of facts tendered, without objection, in the District Court included the following statement concerning the s.58 offence: "Senior Constable Perkins received minor medical treatment to swelling and bruising to the left hand side of his face. As a result of the assault by the [Applicant] , Perkins sustained a bruise to the left side of his face." 31 In written submissions before the District Court, the Crown submitted with respect to the s.58 offence that the "punch caused Constable Perkins to seek minor medical treatment and he sustained a bruise to his face". In addressing the objective seriousness of the s.58 offence, the sentencing Judge stated (ROS5): "With respect to the assault police officer charge that is an offence with no attendant aggravating circumstances and objectively falls towards the lower end of the scale. It was a serious offence that resulted in some injury."
Submissions 32 Mr Carroll, counsel for the Applicant, submitted that the sentencing Judge breached the De Simoni principle by taking into account, with respect to the objective seriousness of the s.58 offence, the fact that it had "resulted in some injury", being a finding of actual bodily harm. He acknowledged that this argument had not been advanced in the District Court and was being made for the first time in this Court. He contended that this finding was impermissible and disclosed error. 33 The Crown submitted that the mere recital of a factor that may constitute an aggravating circumstance does not necessarily mean that the sentencing Judge has taken that factor into account, in an impermissible way, in breach of the De Simoni principle. It was submitted that a mere recital of the facts contained in the statement of facts which had been admitted by consent, does not constitute a breach of the De Simoni principle. Although acknowledging that the sentencing Judge referred to "some injury" resulting from the s.58 offence, the Crown submitted that this comment was preceded immediately by an observation that the offence was one with "no attendant aggravating circumstances" and that it fell objectively towards the lower end of the scale. Thus, the Crown submitted that her Honour did not treat the injury as an aggravating factor.
Decision 34 In imposing sentence, a judge is entitled to consider all the conduct of the offender, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: The Queen v De Simoni at 389. The usual approach to determine whether an offence is a more serious offence, for the purpose of this principle, is to consider the maximum penalty for the crime: R v Hooper [2004] NSWCCA 10 at [26]. 35 Section 58 provides for a range of assault offences, each of which is punishable by five years' imprisonment. The particular offence in this case was assaulting an officer (a constable) while in the execution of his duty. Since 1999, s.60(1) Crimes Act 1900 has also provided for an offence of assaulting a police officer whilst in the execution of the officer's duty, although no actual bodily harm is occasioned to the officer, an offence punishable by imprisonment for five years. No submission was made in this case that a charge under s.58 was inappropriate, given the availability of a charge under s.60(1) where it is a police officer assaulted in the execution of duty. In any event, offences under ss.58 and 60(1) each carry the same maximum penalty of five years' imprisonment. 36 A person who assaults a police officer whilst in the execution of the officer's duty, and by the assault occasions actual bodily harm, is liable for imprisonment for seven years: s.60(2) Crimes Act 1900. A standard non-parole period of three years applies to a s.60(2) offence: s.54A Crimes (Sentencing Procedure) Act 1999. 37 For the purposes of the De Simoni principle, it is clear that a s.60(2) offence is more serious than an offence under ss.58 or 60(1) Crimes Act 1900. 38 Mr Carroll submitted that her Honour had regard to an impermissible aggravating factor, namely that the assault upon the police officer occasioned actual bodily harm. 39 By his plea of guilty to the s.58 charge, the Applicant admitted an assault upon the police officer in the execution of his duty. 40 What is an assault? The traditional common law distinction between assault and battery has largely fallen away for the purpose of application of the modern law of assault. The distinction between assault and battery noted that an assault is an act which causes another person to apprehend the infliction of immediate unlawful force on his or her person, and a battery is the actual infliction of unlawful force on another person: R v Knight (1988) 35 A Crim R 314 at 316-317. Where the assault takes the form of a battery, what is required is an intentional touching of the victim without that person's consent and without lawful excuse: Fitzgerald v Kennard (1995) 38 NSWLR 184 at 192, 200. 41 A practical distinction is sometimes drawn between a physical assault (or battery assault) and psychic assault (or apprehended unlawful force assault): Fitzgerald v Kennard at 200-201; Mikhael v Conroy (Finlay J, 6 December 1990, unreported, BC9002962 at pages 8-15); Lake Macquarie City Council v Morris (2005) 63 NSWLR 263 at 273-274 [48]-[49]. 42 It is not an element of the crime of assault that injury be caused to the victim. Any touching of another person, however slight, may amount to a physical assault. It has been said that the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1991]-[1992] 175 CLR 218 at 233, 265-266; Collins v Wilcock [1984] 1 WLR 1172 at 1177. 43 If actual bodily harm was occasioned by an assault, then the offender is liable to conviction and sentence for a more serious offence where the occasioning of actual bodily harm is an element of the offence. In the case of a police officer victim, this offence arises under s.60(2). In the case of a victim who was not a police officer, the relevant offence is one under s.59 of the Act. 44 The term "actual bodily harm" is not defined in the Crimes Act 1900. The phrase "bodily harm" has been said to include any hurt or injury calculated to interfere with the health or comfort of the victim: R v Overall (1993) 71 A Crim R 170 at 178. It need not be permanent, but must be more than merely transient or trifling - it is something less than "grievous bodily harm", which requires really serious physical injury, and "wounding", which requires breaking of the skin: R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715 at page 4). The distinction between grievous bodily harm and actual bodily harm involves an assessment of the degree of harm done, with one being more serious than the other: R v Overall at 173-174. Bruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm: R v Cameron [1983] 2 NSWLR 66 at 67. If a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would likely amount to actual bodily harm: Li v R [2005] NSWCCA 442 at [45]. 45 This Court has observed that the seriousness of the offence of common assault (under s.61 Crimes Act 1900) must be discerned from the circumstances of the offence and that, if bodily harm has been caused, then that is relevant to whether there has been an offence under s.59 but it is not, and cannot be, relevant to the sentencing of a person for common assault under s.61: R v Abboud [2005] NSWCCA 251 at [18]. It is impermissible for the Crown to tender, or for a court to admit, evidence in sentencing proceedings for common assault, which evidence seeks to demonstrate actual bodily harm: R v Abboud at [19]. 46 In the present case, the statement of facts admitted, by consent, in the District Court referred to swelling and bruising to the face of the police officer as a result of the assault upon him by the Applicant. The Crown submitted in the District Court that the punch to the police officer had bruised his face and caused him to seek minor medical treatment. The paragraph in the statement of facts constituted evidence of actual bodily harm, and the sentencing Judge was invited to have regard to this consequence of the assault in passing sentence upon the Applicant. 47 Did the sentencing Judge breach the De Simoni principle in this case? Her Honour observed that "… it was a serious offence that resulted in some injury". 48 It has been made clear in cases such as R v Overall and R v Lardner that the bare recital of facts by a sentencing Judge does not necessarily involve a breach of the De Simoni principle. 49 If the Crown had determined to prosecute the Applicant for an offence under s.58 (or s.60(1)), and not an offence under s.60(2), then the statement of facts ought not to have referred to injury in the form of bruising which had resulted from the assault upon the police officer. Once such material was inserted in the agreed statement of facts, there was a prospect that the sentencing Judge would not only refer to it, but take it into account in assessing the objective seriousness of the offence for which the Applicant stood to be sentenced. This prospect became a reality in this case. Her Honour had regard to "the injury" when assessing the objective seriousness of the s.58 offence. 50 I am satisfied that the sentencing Judge erred in having regard to the injury resulting from the assault as an aggravating factor on sentence, and that a breach of the De Simoni principle has been established: R v Thorpe (NSWCCA, 17 December 1992, unreported, BC9201406 at page 11). 51 The difficulty which arises when an agreed statement of facts contains material which evidences a more serious offence, has been emphasised in a recent decision of this Court: Barton v R [2009] NSWCCA 285, where Howie J at [18] referred, once again, to the importance of an agreed statement of facts being consistent with the offence for which the offender was to be sentenced. 52 It should be observed that her Honour did not receive assistance from the legal representatives for the Crown and the Applicant in the District Court, with no reference being made to the De Simoni principle concerning injury to the police officer. It is the duty of counsel appearing at a sentencing hearing to assist the Court by making relevant submissions at that time on issues of fact and law: Edwards v R [2009] NSWCCA 199 at [11]. 53 The question remains as to what flows from this error, an issue considered later in the judgment by reference to s.6(3) Criminal Appeal Act 1912. 54 I am conscious that sentencing decisions are made daily in the Local Court in this State for offences of common assault under s.61 and assault police officer in the execution of duty under ss.58 or 60 (1) Crimes Act 1900. Nothing said in this judgment is intended to deter prosecutors from appropriate charge selection in the exercise of prosecutorial discretion. Whether a particular case calls for a charge of assault, or assault occasioning actual bodily harm, will depend upon an assessment of factors relevant to the exercise of prosecutorial discretion, including the level of criminality revealed by the evidence. I regard the selection of a s.58 charge in this case as being entirely appropriate. 55 It remains the law, however, that where a charge of assault, and not assault occasioning actual bodily harm, proceeds to sentence, then evidence of the consequences of the assault, which constitutes actual bodily harm, ought not be tendered in the sentencing proceedings. If evidence of this type is tendered, then the sentencing court must be alert to the requirements of the De Simoni principle, and an express statement ought be made that the court is disregarding evidence of actual bodily harm in passing sentence for the offence of assault.
Ground 2 - Her Honour Erred in Considering the Effect of the Availability of Summary Disposal 56 As mentioned above, each of the ss.58 and 59 offences were Table 2 offences capable of summary disposal in the Local Court. In this case, the prosecution elected for each offence to be dealt with on indictment. 57 Submissions were made in the District Court concerning the relevance of the possibility of summary disposal on sentence. The Crown submitted that this was not a factor which assisted the Applicant on sentence in the circumstances of this case. Her Honour was referred to decisions of this Court which bear upon this question. It was submitted for the Applicant in the District Court that the possibility of summary disposal was a factor which ought be taken into account in the Applicant's favour on sentence. 58 The sentencing Judge approached this issue in the following way (ROS1-2): "I note that in the Local Court the maximum penalties would have been two years each, however, it is clear that this court is not bound by this jurisdictional limit. I am advised that the pleas of guilty were entered in the Local Court, at the first available opportunity and also that strictly, that, originally, strictly indictable offences were charged. I do not propose to go behind the process that resulted in these matter being before me. The offender will be entitled to the maximum discount for an early plea of guilty and I quantify that now at twenty-five percent. That discount will apply to the total term that will be imposed. Doan's Case [ R v Doan (2000) 50 NSWLR 115] makes it clear that he is not entitled to a further discount because the matter could have been dealt with in the Local Court. To do so would not make, sense. It has been suggested that the offender may have been diverted into the Local Court merit programme and that is a matter that I should take into account, in a general sense. However, I note that the merit programme is a pre-plea drug diversion programme, would only have been available to him if he had been a person who was eligible for bail. The offender, I note, has not been granted bail. The loss of the availability of s 32 or 33 does not also appear to be relevant in this matter. The decision of El Marwas [ Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93] would have, in my view, made it very difficult for this matter to have been dealt with under the Mental Health Criminal Procedure Act. Therefore, the election of the Crown to have this matter dealt with in the District Court is not a matter that will impact on my sentencing considerations in that way."
Submissions 59 Mr Carroll submitted that her Honour had erroneously excluded the availability of summary disposal from consideration, by reference to the early pleas of guilty in the Local Court. His submissions concentrated on the s.58 offence. The Crown submitted that, regardless of the path by which her Honour came to her conclusion on this issue, the availability of summary disposal with respect to the s.58 offence did not assist the Applicant on sentence.
Decision 60 It is necessary to fairly read the sentencing Judge's comments on this issue. They are certainly open to a construction that the award of a discount for an early plea of guilty in the Local Court should exclude from consideration on sentence the possibility of summary disposal. Her Honour went further and explained that, as it was the Crown election for the matters to be dealt with in the District Court, this factor ought not be taken into account on sentence. 61 With respect, her Honour has not identified and applied the relevant principles to be considered when a submission of this type is made. The fact that an offender has pleaded guilty, at an early stage, in the Local Court to the offence which comes before the District Court for sentence on indictment, and will obtain an appropriate discount as a result, does not prevent the Court from taking into account on sentence, in a proper case, the availability of summary disposal. 62 The relevant principles have been stated in a number of decisions of this Court, including R v Crombie [1999] NSWCCA 297; R v Gent (2005) 162 A Crim R 29 at 45-48 [76]-[91]; McCullough v R [2009] NSWCCA 94 at [22]-[26]; Edwards v R at [47]-[49]. There is no fixed rule when an argument based upon possible summary disposal is advanced, nor is this a factor which operates universally to reduce sentence. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Edwards v R at [47]. 63 Ought the s.58 offence be regarded as one which was truly a Local Court offence being prosecuted in the District Court: Edwards v R at [49]? 64 It has been observed that, where the Director of Public Prosecutions has elected to prosecute a matter on indictment, it would require a very clear case of inappropriate prosecution of an offence on indictment for an argument to be available in mitigation resulting from a lost opportunity for summary disposal of that offence: Edwards v R at [49]. The Applicant had a lengthy record for offences of violence, including a number of offences of assault police or assault officer other than a police officer. No doubt, the Applicant's criminal history was taken into account by the Director of Public Prosecutions in electing to prosecute the s.58 offence on indictment. 65 Although the s.58 offence was committed on the same day as the s.59 offence, it occurred at a different place and time. Nevertheless, it arose from connected events earlier in the day where the Applicant had committed an offence of violence against his mother, for which he was arrested. 66 I do not think that this is a case where, in effect, the s.59 offence has dragged the s.58 offence into the District Court for sentence. Rather, the s.58 offence was far from trivial, and was committed by an offender with a history of persistent offending of this type. It was reasonable that a view be taken by the Crown that the Applicant ought stand for sentence for these two crimes of violence before the District Court, with the penalties available to that Court being open. 67 Once the relevant principles with respect to the availability of summary disposal are taken into account in this case, it is clear that the theoretical possibility of the s.58 offence being disposed of summarily, does not assist the Applicant on sentence. Although I am satisfied that the sentencing Judge erred in excluding this factor from consideration upon an inappropriate basis, the factor does not ultimately assist the Applicant when it is taken into account in accordance with relevant principles. 68 In any event, the sentence imposed for the s.58 offence involved a head sentence of 13 months, and three months' custody only was solely referable to this offence. A sentencing decision of that type would have been unremarkable in the Local Court, in the circumstances of this offence and this offender.
Submissions 69 Mr Carroll submitted that the sentences imposed were manifestly excessive. He referred to sentencing statistics, and a schedule of cases, for offences under ss.58 and 59, which he said supported the submission that the sentences were manifestly excessive. He submitted that this conclusion was assisted by the sentencing Judge's assessment of the objective seriousness of the offences, with her Honour assessing the s.59 offence as being "towards the lower to mid range of seriousness" and the s.58 offence as being "towards the lower end of the scale". 70 The Crown pointed to the limitations of statistics and schedules of cases: Nguyen v R [2009] NSWCCA 283 at [15]. In addition, the Crown submitted that the s.59 offence was of significant objective gravity, aggravated by the vulnerability of the victim and the use of a knife to threaten her, in particular where the offence was committed in a domestic context and where there had been prior acts of violence against the same victim. Further, a Form 1 offence was taken into account on sentence. With respect to the s.58 offence, the Crown submitted that as an assault may be established without physical contact, the blow delivered to the officer rendered the offence a serious one. Allowing for the partial concurrency of sentences imposed for the two offences, the Crown submitted that only three months' imprisonment (25 July 2008 to 24 October 2008) was referrable solely to the s.58 offence. 71 Even if the Applicant established error on the part of the sentencing Judge, the Crown submitted that no lesser sentence was warranted in law: s.6(3) Criminal Appeal Act 1912.
Decision 72 The real question to be determined is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] 228 CLR 357 at 370-371 [25]. 73 The sentencing Judge's finding concerning the objective seriousness of the s.59 offence was generous to the Applicant. The s.59 offence was committed over a period of time, and involved the use of physical force upon the victim, and the making of threats whilst the Applicant brandished a knife towards her. This involved a series of connected acts, constituting the one transaction, of physical assault and psychic assault (see [41] above). 74 Understandably, the victim feared for her life. She was 60 years of age and suffered from physical disabilities of which the Applicant was aware. The offence involved a prolonged and unprovoked assault upon a vulnerable woman in her own home by her own son: McCullough v R at [41]. The Applicant had committed earlier crimes of domestic violence against his mother, and he acted again in this way on this occasion. 75 The sentencing Judge's assessment of the objective seriousness of the s.58 offence was also generous to the Applicant. Bearing in mind the fact that injury must be excluded entirely from the equation, this was a significant offence of violence in which the Applicant punched a police officer, with considerable force, to the face. 76 In Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No. 2) of 2002 (2002) 137 A Crim R 196, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) said at 203 [22]: "Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police." 77 In cases involving assault against police, there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases: Attorney General's Application (No. 2) of 2002 at 203 [26]. 78 The Applicant had an extensive criminal history for offences of violence, including offences committed against his mother, and offences committed against police officers. Having regard to the Applicant's criminal history, the sentencing Judge was entitled to give more weight to considerations of personal deterrence and protection of the community than otherwise would be the case: R v McNaughton (2006) 66 NSWLR 566 at 574-575; R v MAK and MSK (2006) 167 A Crim R 159 at 171-172 [51]. 79 The sentencing Judge had regard to the Applicant's long-term mental health issues, and observed that less weight may be given to general deterrence, but that other features may not operate in the Applicant's favour on sentence. The Applicant's history of violent offending, against the background of mental illness and alcohol and drug abuse, raised an issue as well concerning the protection of the community, including the Applicant's mother and police officers: R v Hamid (2006) 164 A Crim R 179 at 200-201 [117]. It is apparent from the Applicant's criminal history that a range of sentencing options have been tried in the past, involving conditional liberty or other non-custodial sentences, but the Applicant has continued to commit offences of violence. 80 With respect to accumulation, concurrency and totality, it was open to the sentencing Judge to impose partly cumulative sentences having regard to the fact that two separate crimes were committed against different victims. Only three months' imprisonment was referable solely to the s.58 offence. 81 I do not consider that the sentencing statistics, nor the schedule of cases, provide any real assistance to the Applicant in this case. In my view, no sentencing pattern or range relevant to the offences to which the Applicant pleaded guilty is to be discerned from the cases referred to in the schedule. Likewise, the bare statistics do not assist. The maximum penalty for each offence is that prescribed at law, namely imprisonment for five years. 82 Having regard to the facts of these offences, and the criminal history and subjective circumstances of the Applicant, I am not persuaded that either sentence imposed upon him was manifestly excessive.
Conclusion 83 The Applicant has demonstrated error under the first ground, being a breach of the De Simoni principle in taking into account the injury to the police officer in determining the objective seriousness of the s.58 offence. Further, the Applicant has demonstrated error under the second ground, given the sentencing Judge's unwillingness to consider the possibility of summary disposal because the Applicant was to be given a 25% discount for early pleas of guilty in the Local Court. 84 I have already determined that the error under the second ground of appeal does not materially assist the Applicant. That is because the possibility of summary disposal of the s.58 offence, when considered in accordance with appropriate principles, does not constitute a discretionary factor which operates to reduce sentence in this case. In the context of the present case, I regard the error under the first ground of appeal as a minor one. In the result, there was a passing, but impermissible, reference to the injury to the police officer in the remarks on sentence. 85 With respect to each offence, no lesser sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. 86 I propose the following orders:
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McIntyre
R
The Queen v De Simoni (1981) 147 CLR 383 R v Hooper [2004] NSWCCA 10 R v Knight (1988) 35 A Crim R 314 Fitzgerald v Kennard (1995) 38 NSWLR 184 Mikhael v Conroy (Finlay J, 6 December 1990, unreported, BC9002962) Lake Macquarie City Council v Morris (2005) 63 NSWLR 263 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1991]-[1992] 175 CLR 218 Collins v Wilcock [1984] 1 WLR 1172 R v Overall (1993) 71 A Crim R 170 R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715) R v Cameron [1983] 2 NSWLR 66 Li v R [2005] NSWCCA 442 CASES CITED : R v Abboud [2005] NSWCCA 251 R v Thorpe (NSWCCA, 17 December 1992, unreported, BC9201406) Barton v R [2009] NSWCCA 285 Edwards v R [2009] NSWCCA 199 R v Crombie [1999] NSWCCA 297 R v Gent (2005) 162 A Crim R 29 McCullough v R [2009] NSWCCA 94 Nguyen v R [2009] NSWCCA 283 Markarian v The Queen [2005] 228 CLR 357 Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No. 2) of 2002 (2002) 137 A Crim R 196 R v McNaughton (2006) 66 NSWLR 566 R v MAK and MSK (2006) 167 A Crim R 159 R v Hamid (2006) 164 A Crim R 179
(1981) 147 CLR 383
(1995) 38 NSWLR 184
(2005) 63 NSWLR 263
(2006) 66 NSWLR 566
(2000) 50 NSWLR 115
(2006) 66 NSWLR 93
Leave to appeal granted; appeal against sentence dismissed. The Court found errors concerning the De Simoni principle and consideration of possible summary disposal, but concluded that neither warranted a lesser sentence. [83]-[86]