Ngatamariki v R

GROUND 1 - His Honour erred by having regard to the applicant's prior conviction in determining the objective seriousness of the offence

The determination of the sentencing judge

1. On 17 March 2011 the applicant appeared at the Inverell Local Court in respect of a charge of assault occasioning actual bodily harm which had occurred on 27 October 2010. That offending involved the same victim. He was convicted, fined $1000.00, and ordered to enter into a bond pursuant to s. 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") for a period of 2 years. There were a number of conditions attaching to that bond, including that the applicant not consume alcohol or illicit drugs, and that he not enter any licensed premises within NSW.
2. The applicant's criminal history detailing that offence was before the sentencing judge who (commencing at ROS 9) turned to an assessment of the objective seriousness of the applicant's offending. He said: "In respect of this case, the matters that I consider are appropriate in determining the seriousness of the offence is firstly the relationship between the parties; they were in a domestic relationship. It is clear that there had been at least on one prior occasion a violent assault upon the victim by the accused. Whilst that had only resulted in actual bodily harm to her, it was sufficient for him to be charged and subjected to supervision by way of a bond. It is also significant in the context of the circumstances leading up to this offence that on that occasion alcohol had been involved."
3. Having made reference to a number of other factors, the sentencing judge concluded (at ROS 10) that the applicant's offending fell "just below the mid-range of objective seriousness". He then made a number of observations about the applicant's moral culpability before returning to consider aggravating factors. At that point he said (at ROS 13): "As I have already mentioned the offender has a prior conviction for domestic violence towards the same victim. That is a fact I will take into account as something that diminishes his entitlement to leniency and indicates a sentence should include a greater element of specific deterrence. In relation to that prior conviction I note it was in 2010 and he was supervised on a two-year s 9 good behaviour bond. There was a case plan that focused on addressing his alcohol abuse and the violent aspect of the offence. He completed an anger management program and alcohol and other drug counselling."

Submissions of the applicant

1. Counsel for the applicant accepted that in light of the provisions of s. 21A(1)(d) of the Sentencing Act it was appropriate for the sentencing judge to have regard to the applicant's prior conviction as an aggravating factor in the terms in which he stated in the passage set out at [39] above.
2. However, it was submitted that when the sentencing remarks were read as a whole, and having regard to the terms of the passage set out at [38] above, it was clear that the sentencing judge had also taken into account the applicant's previous conviction when assessing the objective seriousness of the offending. It was submitted that by approaching the matter in that way, the sentencing judge had acted contrary to the requirement that punishment must be proportional to the offence.

Submissions of the Crown

1. The Crown submitted that the reference by the sentencing judge to the earlier offence in the passage set out at [38] above should be construed as a reference to part of the context in which the present offence occurred, namely an offence committed within a relationship marred by domestic violence including violence that had earlier been prosecuted.
2. The Crown submitted that on a fair reading of the sentencing remarks as a whole there could be no suggestion that the sentencing judge had used the fact of the applicant's previous conviction to improperly aggravate the objective gravity of the offence.

Consideration

1. The principle of proportionality requires that the upper boundary of a proportionate sentence be set by the objective circumstances of the offence: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; Baumer v R [1988] HCA 67; (1988) 166 CLR 51. Those objective circumstances do not encompass an offender's prior convictions: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [24] per Spigelman CJ; at [81] per Barr and Bell JJ.
2. True it is that his Honour's reference to the applicant's prior conviction in the passage set out in [38] above was made following a reference to determining the seriousness of the offending. However, when the remarks are read as a whole, it is apparent that his Honour was doing no more than taking into account the domestic relationship which existed between the applicant and the victim as a factor which was relevant to determining the objective seriousness of the offending. That was both unremarkable and entirely appropriate. It was in that specific context that his Honour made reference to the applicant's previous conviction. Viewed in that way, it is apparent that his Honour did not err by using the applicant's prior conviction as a factor which aggravated the seriousness of his offending.
3. I am fortified in that view by the terms of what his Honour said in the passage set out at [39] above where it was made plain that the applicant's prior conviction was a factor which would be taken into account as something that diminished the applicant's entitlement to leniency, thus justifying greater weight being afforded to specific deterrence. Nothing said by his Honour in the passage set out at [39] suggests, even remotely, that the applicant's prior conviction had already been taken into account in some way. Indeed, the express language used by his Honour was very much to the contrary.
4. For these reasons, ground 1 is not made out.

GROUND 2 - The sentence passed on the applicant is manifestly excessive

1. The written submissions filed on behalf of the applicant were prepared by counsel who did not ultimately appear before this Court on the hearing of the appeal. However, counsel who did appear expressly adopted them. Those submissions contended that this Court should "consider sentences for offences against s. 33(1)(a) for comparative purposes in the applicant's case." The submissions proceeded to make reference to the sentences imposed in a series of other cases. It was submitted that in view of those sentences, and having regard to a number of other factors, this Court would conclude that the sentence imposed was manifestly excessive.
2. The additional factors upon which reliance was placed were that: 1. the offence was found by the sentencing judge to be below the mid-range of objective seriousness; 2. the offence was not planned; 3. although the applicant had punched the victim on multiple occasions, the assault was not a sustained or pre-meditated attack; 4. although the injuries sustained by the victim were serious, the offending was not within the worst possible category and did not result in any permanent injury; 5. the offending did not involve the use of a weapon; 6. the applicant had expressed genuine remorse; and 7. the applicant had good prospects of rehabilitation.
3. Counsel appearing before this Court expanded upon those various factors in oral argument. In doing so, she submitted that the applicant was a person of limited cognitive functioning and that his offending should be assessed in that light. In that regard, counsel relied, in particular, on the contents of a psychological report which was before the sentencing judge which, under the heading "Assessment", stated (inter alia) the following: "The results of the WRAT/4 indicated that Mr Ngatamariki's reading abilities were in the Average Range. Mr Ngatamariki's results varied between scales. His reading and spelling fell within the average range. However, comprehension and maths fell within the low average range. During test administration, it was observed that Mr Ngatamariki had significant difficulty with comprehension tasks. He demonstrated patience with each item and appeared to give his best effort, however he was unable to complete the tasks to the same level as reading and spelling. Given the variation in the scales, a WASI-II was administered."
4. The reference to the "WASI-II" was a reference to the Wechsler Abbreviated Scale of Intelligence (Second Edition) which is a standardised and abbreviated measure of intellectual functioning. The results of that testing were reported as follows: "Results indicated that Mr Ngatamariki's general level of intellectual functioning was in the Borderline Range. These results indicate that approximately 93% of the general population is functioning at a higher level than Mr Ngatamariki."
5. The report concluded (inter alia): "Although Mr Ngatamariki's overall cognitive functioning falls in the Borderline Range, his verbal comprehension skills are significantly low. This may be particularly relevant to his interpersonal relationships where Mr Ngatamariki may demonstrate some difficulty verbalising and comprehending various issues."
6. Counsel for the applicant submitted that this evidence placed the applicant's offending in a particular category. It was submitted that in light of the conclusions expressed in the report, the applicant's conduct was to be viewed as the product of "his frustration at his inability to negotiate conflict situations due to his inherent cognitive difficulties". Counsel submitted that it was necessary to have particular regard to these matters, so as to ensure that individualised justice, appropriate to the circumstances of the appellant's circumstances, was imposed: R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [88] per Johnson J (Hunt AJA and Latham J agreeing).
7. Finally, it was submitted that although the applicant had a record for not dissimilar offending, he was not to be regarded as a "repeat offender" for the purposes of sentence.

Submissions of the Crown

1. The Crown submitted that the applicant's reliance, in the written submissions, upon sentences imposed in other cases reflected an incorrect approach and, in any event, was of no utility. The Crown pointed out that offending of this nature necessarily covers a broad range of circumstances and that in determining an appropriate sentence, it had been necessary for the sentencing judge to take into account all of the circumstances including: 1. the degree of violence; 2. the ferocity of the attack; 3. the apparent lack of any provocation; and 4. the relationship between the offender and the victim.
2. The Crown submitted that the cases upon which the applicant sought to rely for comparative purposes demonstrated the wide range of offending in matters of this nature. It was further submitted that reference to those cases demonstrated the presence of various distinguishing factors. It was submitted that in those circumstances, the sentences imposed in those cases did not support a conclusion that the sentence imposed upon the applicant was manifestly excessive.
3. The Crown also pointed to the considerable violence involved in the applicant's assault. It was submitted that deterrence, both general and specific, were important factors, as was the protection of the community. In a more general sense, it was submitted that recognition of the harm done to the victim and the community as a result of offences of domestic violence was important.
4. In terms of the applicant's reliance upon the psychological report, the Crown emphasised that following the passages upon which counsel for the applicant had relied, the following appeared: 'It should be noted that English is Mr Ngatamariki's second language. Consequently, the results from this cognitive assessment must be interpreted with caution".
5. The Crown submitted that in these circumstances, the report did not support the submissions advanced on behalf of the applicant regarding his cognitive functioning.
6. Ultimately, the Crown submitted that when consideration was given to the multiple objectives of sentencing, and the absence of a strong subjective case, the sentence was not manifestly excessive. This, it was submitted, was particularly so when the sentence was considered by reference to the maximum penalty and standard non-parole period which had been prescribed by the Parliament.

Consideration

1. The written submissions filed on behalf of the applicant effectively invited this Court to engage in an exercise comparing sentences imposed on other cases with that imposed on the applicant. In support of that approach, the written submissions cited the observations of Fagan J (with whom Macfarlan JA and Adams J agreed) in Newman v R [2015] NSWCCA 270 where his Honour said (at [19]): "The circumstances which give rise to the offence of wounding with intent to cause grievous bodily harm vary widely and the range of culpability for the offence is vast. Whilst recognising that sentences passed in other more or less comparable cases cannot be treated as confining the sentencing discretion within boundaries different from those laid down by Parliament (Hili v The Queen (2010) 242 CLR 520 at [54]), some consideration of sentences imposed on other occasions is essential if consistency is to be achieved."
2. His Honour's observation should not, in my view, be interpreted as an endorsement of the course that the written submissions urged this Court to follow. What his Honour said in the passage extracted above must be read in the context of what he said immediately thereafter (at [20]-[24]): "[20] In order to take into account, at all, a sentence passed upon a different offender for an offence against the same section but arising out of unrelated circumstances, regard must be had to all of the factors which the sentencing court had before it on that other occasion. That is, the objective circumstances of the commission of the offence, whether sentence was passed following a plea of guilty or after a trial, the antecedents and personal attributes of the offender, whether a standard non-parole period was applicable and so on. In Wong v The Queen (2001) 207 CLR 584 at [59], Gaudron, Gummow and Hayne JJ held: "[59] Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass a sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." (Emphasis in original). [21] That passage has equal application when this Court is considering whether a sentence passed at first instance was manifestly excessive. Wong v The Queen (supra) was concerned with sentencing for offences against Commonwealth laws but the passage quoted is concerned with sentencing principles generally and is not founded upon anything peculiar to Commonwealth criminal law. [22] Also in Wong v The Queen (supra) Gleeson CJ said: "[6] … All discretionary decision making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency." [23] The requirement of reasonable consistency, to be sought by consideration of all features of comparable cases, was reiterated in Hili v The Queen (supra), in the judgment of the plurality. After quoting the above passage from the judgment of Gleeson CJ their Honours said: "[53] Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. … Care must be taken, however, in using what has been done in other cases. [54] In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303]-[305], Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts'. But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence'. When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'." [24] These principles were reiterated in Green v The Queen (2011) 244 CLR 462, a case concerning sentencing under the Drug Misuse and Trafficking Act 1985 (NSW). At [28] and [29] French CJ, Crennan and Kiefel JJ referred to both Wong v The Queen (supra) and Hili v The Queen (supra) in support of the requirements of "systematic fairness" and "reasonable consistency" in sentencing, applying "to persons charged with similar offences arising out of unrelated events" as well as to the punishment of co-offenders under the parity principle.
3. In Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 253 CLR 58 the plurality (French CJ, Hayne, Kiefel and Bell JJ) stated (at [40]-[41]): [40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. [41] As the plurality pointed out in Hili, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the "raw material" which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.
4. These principles have been consistently applied in this Court: MLP v R [2014] NSWCCA 183 at [41]-[44]; Briouzguine v R [2014] NSWCCA 264 at [76].
5. Even accepting the proposition that consideration of sentences imposed on other occasions is essential if consistency is to be achieved, the written submissions of the applicant did not approach the matter on that basis. Rather, they sought to establish, essentially by reliance upon the sentences imposed in the cases cited, that the sentence imposed upon the applicant was manifestly excessive. In other words, the reliance on those cases was really based upon a suggested need to achieve numerical equivalence of the kind to which their Honours referred in Barbaro (supra). That reflects an incorrect approach. Moreover, and unsurprisingly, those cases expose, to varying degrees, fundamental differences in the circumstances of the offending, and/or the circumstances of the offender, when compared to the present case.
6. Bearing in mind that what is sought is consistency in the application of relevant legal principles, as opposed to numerical equivalence, the applicant's reliance on those cases does not demonstrate that the sentence imposed was manifestly excessive. Nothing in terms of the outcome of any of those cases suggests, in any way, that the sentencing judge in the present case applied relevant sentencing principles in a way which was not consistent with some established sentencing pattern.
7. The sentencing judge considered the various subjective factors relied upon by the applicant. Having done so, he found that: 1. the offending was not planned; 2. the applicant was remorseful; 3. his admissions at the trial were of utilitarian benefit to the community as a consequence of the fact that the trial was shortened and there was an alleviation of the necessity to call expert medical evidence; and 4. he had good prospects for not reoffending and for succeeding in his rehabilitation.
8. No complaint is made about any of those findings and it is not suggested that the sentencing judge overlooked, or gave insufficient weight to, any aspect of the applicant's subjective case.
9. I am unable to accept the submissions advanced by counsel based upon the psychological report which was before the sentencing judge. As the Crown pointed out, the conclusions expressed in that report were subject to an important qualification.
10. I am also unable to accept counsel's submission that the applicant's offending should be viewed as a manifestation of his "inability to negotiate conflict situations". Leaving aside the fact that such a submission was based upon the qualified conclusion expressed in the report, the sentencing judge found that the catalyst for the applicant's attack was the victim's indication that she did not wish the applicant to disturb the children. The sentencing judge did not find that any conflict whatsoever emanated from the victim. Whilst a "conflict situation" certainly arose thereafter, it was one created by the applicant himself. In other words, the applicant was the instigator of the conflict, not the respondent to it.
11. The applicant's offending was extremely serious. He was responsible for a brutal and violent attack perpetrated upon an innocent, and largely defenceless, victim. The ferocity of the applicant's attack is best gauged by the fact that the victim suffered no less than five separate facial fractures. Any sentence required a strong measure of general deterrence. Personal deterrence was also a relevant consideration in light of the applicant's previous conviction. Further, the applicant's subjective circumstances, which were generally unremarkable, were clearly taken into account by the sentencing judge.
12. The sentencing judge also properly took into account the fact that the offending took place in the context of a domestic relationship. In Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 the majority (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) observed (at [55]): [55] … A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.
13. Even though the offending in that case was different to (and more serious than) that of the applicant, the Court's reference to the denunciation of, and punishment for, "brutal" and "alcohol-fuelled" conduct is particularly apt in a case such as the present.
14. Even accepting that the section under which the applicant was charged covers a range of offending, the maximum penalty and the standard non-parole period provide important guide posts to the determination of an appropriate sentence. It is not without significance that the head sentence imposed upon the applicant is two years less than the standard non-parole period prescribed for the offence. That is not, in any way, determinative. However, it is a factor which tends against the proposition that the sentence is manifestly excessive. This is particularly so in circumstances where the applicant went to trial, and where his offending was aggravated by not dissimilar behaviour, towards the same victim, on a previous occasion.
15. In order to make out a complaint of manifest excess, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321; Markarian v R [2005] HCA 25; (2005) 228 CLR 357. For the reasons I have given, none of the submissions advanced on behalf of the applicant establish that the sentence imposed falls into such a category. Indeed, for my part, having regard to all of the circumstances, the sentence is one that might be regarded as modest.
16. For all of these reasons this ground is not made out.

ORDERS

1. For the reasons expressed I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.

Amendments 10 August 2016 - No amendment DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2016