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[2011] NSWCCA 161
Court of Criminal Appeal (NSW)
2011-07-08
Beazley JA, Hall J, Harrison J
Original judgment source is linked above.
The applicant's personal background 12The applicant's background and personal circumstances reveal dysfunctional family relationships, drug and alcohol abuse, and a long criminal history commencing as a juvenile at about age 15 and extending to his last conviction, being only two months prior to the assault the subject of the present application. 13The applicant has been convicted of various break enter and steal offences, various driving offences, drug and alcohol offences, malicious damage offences, wilful and unlawful destruction of property offences and, most significantly for the purposes of the present matter, a number of prior assault offences, three of which were assaults occasioning actual bodily harm. 14As a result of this long history of criminal activity, the applicant has been placed on bonds, fined, committed to juvenile institutions, sentenced to periods of community service and to periodic detention, had suspended sentences imposed and has been sentenced to imprisonment on two separate occasions for non parole periods of 6 months. 15The offence immediately prior to the present offence for which he was sentenced on 6 June 2008 at Liverpool Local Court involved a common assault, damage to property and possession of a prohibited drug. In respect to the first two of those offences, the applicant was subject to two s 12 bonds for a period of 8 months, which still had 6 months to run at the time of this offence. Two and a half months earlier, that is, on 19 March 2008, the applicant had been sentenced at Liverpool Local Court on drug charges and placed on a s 9 bond for 18 months, which likewise was current at the time of this offence. 16In a pre-sentence report dated 2 November 2009 tendered at the sentence hearing, it was reported that the applicant had recently made attempts to change his life by maintaining his own rental property and spending time with positive peer influences. The author of the pre-sentence report considered that the applicant was making a concerted effort to change his lifestyle. He was also in reasonably steady employment, working three to five days a week as a builder's labourer. He gave evidence before the sentencing judge that his former employer was prepared to have him back at work following his release. His Honour was prepared to accept that evidence. 17His Honour also accepted the applicant's evidence that about 2 to 3 months prior to the sentencing hearing he had been diagnosed with a Post Traumatic Stress Disorder, and had been prescribed antidepressants and was also on antipsychotic medication. The applicant gave evidence that the Post Traumatic Stress Disorder was said to have been caused by numerous attempts on the applicant's life which occurred in around June 2008. His Honour accepted that his condition explained the applicant's level of anxiety at the time of the offence. 18His Honour also appears to have accepted that the applicant had moderated his alcohol intake but that he continued to be an occasional user of cannabis. The applicant at that time had not undertaken any programmes to address his drug and alcohol problem. 19In his evidence on the sentencing hearing, the applicant gave two explanations for his offending behaviour on this occasion. First, he contended that Ms Kahui called him a " retard ". He said he reacted badly to this because his younger brother, with whom he maintained a good relationship, suffered from Down syndrome. His Honour did not accept this evidence, but did accept, that as set out in the statement of agreed facts, that Ms Kahui had called the applicant an " idiot ". 20The second explanation that the applicant proffered for his conduct was that he did not know that Ms Kahui was a woman. He thought that the person who had told him to stop was a man. His Honour, correctly, rejected that explanation as in any way diminishing the objective seriousness of the offence. His Honour also doubted, having regard to photographic evidence in the case, whether the applicant could have made such a mistake.
Approach of the sentencing judge to sentence 21In sentencing an offender, the court is required to take into account relevant aggravating factors enumerated in the Crimes (Sentencing Procedure) Act , s 21A and relevant mitigating factors specified in s 21A(3). 22So far as aggravating factors were relevant, the sentencing judge had regard to the applicant's record of previous convictions: see s 21A(2)(d); and the fact that the offence was committed while the applicant was on conditional liberty in relation to other offences: see s 21A(2)(j). In taking into account the applicant's lengthy criminal history, his Honour described the offences of violence of " a minor nature ". His Honour did not explain why he described those offences in that way, given that there were three convictions for assault occasioning actual bodily harm and a sentence of 6 months imprisonment had been imposed on the applicant in respect of one of those offences. Given that a term of imprisonment was imposed in respect of one of these offences, I consider that this finding was one of a number of findings that were favourable to the applicant. 23Although the sentencing judge did not expressly identify the mitigating factors that he took into account it is apparent from his remarks that he took into account that the offence was not part of a planned or organised criminal activity: s 21A(3)(b); and that the applicant entered a plea of guilty: see s 21A(3)(k) and s 22. 24It is also possible the provisions of s 21A(3)(c), that the offender was provoked by the victim, were relevant in this case, in the sense that Ms Kahui called the applicant an " idiot " and it appears that the applicant reacted to that comment. Having said that, the circumstances in which that remark was made were such that if there was any provocation it was of such a minimal nature as to be of no particular relevance. Indeed, in my opinion, his Honour could have considered, as an aggravating factor pursuant to s 21A(2)(l), that Ms Kahui was in a vulnerable position. Although she did not fall into the examples specified in s 21A(2)(l), she was employed to control traffic in respect of public roadworks being carried out by a private contractor. She was vulnerable in the sense that she was required to give traffic commands on a public roadway. However, as his Honour did not expressly take that factor into account, it is appropriate for the purposes of considering his Honour's sentencing exercise to put that to one side. 25His Honour had regard to the applicant's personal circumstances, including his dysfunctional childhood, his drug and alcohol problems, his attempts at personal rehabilitation in the period prior to this offence and the recent diagnosis of a Post Traumatic Stress Disorder. 26His Honour also took into account that the applicant suffered extra-curial punishment, in that he sustained injuries in the scuffle that ensued when he was chased by Ms Kahui's fellow workers. In this regard, his Honour again made favourable findings to the applicant, accepting that in addition to receiving black eyes and swollen lips, he received more serious injuries, requiring admission to hospital on two occasions in the week or two after the offence, because he was passing blood and bleeding from his anus. Although there was no medical evidence to support that those injuries had occurred in the scuffle, his Honour accepted that that was the cause. 27Balanced against those favourable personal matters, his Honour considered that the applicant did not have a clear insight into his wrongdoing because, whilst having pleaded guilty, he sought to shift blame onto the victim, saying that she should not have " told him off ". This was an attitude that the applicant had maintained from the time he was arrested, through to the Probation and Parole officer who interviewed him for the purposes of the pre-sentence report and in his evidence in court. 28His Honour accepted that the applicant suffers from a Post Traumatic Stress Disorder and that the disorder was an underlying factor in the commission of the present offence. However, notwithstanding that the applicant suffered from anxiety due to that condition, his Honour was satisfied that the applicant committed the offence with full knowledge of what he was doing and with full knowledge of the gravity of his actions. 29His Honour found that the offence fell into the middle range of objective seriousness for such offences. That finding was made with the principle stated in Way in mind, namely, that the standard non-parole period for an offence, whilst not applicable where an offender pleads guilty, is nonetheless relevant as a reference point in determining the appropriate sentence to be imposed. 30His Honour also made a finding of special circumstances and imposed a non parole period which was 62 per cent of the total sentence. 31Having regard to all of those factors, his Honour sentenced the applicant to imprisonment, imposing a non-parole period of 2 years 6 months and a balance of term of 18 months, that is, a total sentence of 4 years.
Was the additional term imposed manifestly excessive? 32The sole ground of appeal is that the sentence imposed by his Honour was manifestly excessive and in all circumstances another sentence was warranted in law: see the Criminal Appeal Act , s 6(3). 33In his written submissions, the applicant drew the Court's attention to the fact that the nominal starting point prior to the taking account of a 10 per cent discount for the plea must have been 4 years 4 months and that that was simply too high. As I have already indicated, in his oral submissions he confirmed this in slightly different terms, namely, that 18 months was " a long time". 34In my opinion, there is no basis for accepting that contention. His Honour found that the offence was in the mid-range of objective seriousness. Given the circumstances in which it occurred and the severity of the attack, there is no warrant to interfere with that finding. Once that is accepted, it is apparent that the sentence imposed by his Honour was within an appropriate sentencing discretion. As has been stated above, the standard non-parole period for this offence is 4 years. His Honour, correctly recognising that the standard non-parole period was only relevant as a reference point in the sentencing of a person who pleaded guilty, imposed a non-parole period of 2 years 6 months, 25 per cent lower than the standard non-parole period. 35Given that the serious aggravating circumstances of the offence, most particularly the fact that the applicant has a long criminal history, including for the same offence, and that he committed this offence whilst on conditional liberty, including for the same offence, I am of the opinion that no other sentence was warranted in law. In reaching this conclusion, I have also taken into account that in imposing the non-parole period, his Honour made a finding of special circumstances. Accordingly, I propose that leave to appeal be granted, but that the appeal be dismissed. 36I wish, however, to add the following. In his oral submissions, the applicant was polite and addressed the Court in a coherent, appropriate and helpful way. He informed the Court that he has moved location so as to take himself away from the influences that had apparently led him into trouble in the past. To the extent that the Court was able to gauge, he appeared genuinely hopeful of turning his life around. One of the purposes of a period of probation is to assist a person to do exactly that. The applicant is to be encouraged to treat the remaining 17 months of his probation as a source of support, not as something negative hanging around his neck, to assist him to maintain his present optimism, so that the way ahead for him will be positive and crime-free. 37The orders I propose are:
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O'Connor
Regina
Judgment 1BEAZLEY JA : On 8 September 2009, the applicant pleaded guilty before Keleman DCJ to the offence of recklessly causing grievous bodily harm to Henrietta Kahui on 4 August 2098 contrary to the provisions of the Crimes Act 1900, s 35(2). An offence under that section carries a maximum penalty of imprisonment for 10 years and a standard non-parole period of 4 years. As the applicant pleaded guilty, the standard non-parole period does not apply to the sentencing process. However, it remains as a reference point for the sentencing judge in determining what sentence to impose: R v Way [2004] NSWCCA 131. 2His Honour sentenced the applicant to a non-parole period of 2 years 6 months expiring on 12 June 2011, being the first day upon which the applicant was eligible to be released. His Honour imposed a total term of imprisonment of 4 years commencing on 13 December 2008. In imposing this sentence, the sentencing judge allowed a discount of 10 per cent on the sentence that otherwise would have been appropriate, having regard to the utilitarian value of the plea of guilty, which was entered on the day the offender was due to stand trial: see R v Thomson (2000) 49 NSWLR 383. See also the Criminal (Sentencing Procedure) Act , 1999, s 22. 3The applicant seeks leave to appeal against sentence on the ground that the sentence imposed is manifestly excessive. The applicant has already served his non-parole period and has been released on parole. On the hearing of the application for leave to appeal, the applicant, who appeared in person, informed the Court that he seeks a reduction in the balance of the term that was imposed by the sentencing judge. In effect, the applicant seeks a reduction of the period of 18 months on which he is on parole. As he put the matter to the Court, " 18 months is a long time ".
(2000) 49 NSWLR 383