79 NSWLR 1
Dinsdale v The Queen [2000] HCA 54202 CLR 321
Hili v The QueenJones v The Queen [2010] HCA 45242 CLR 520
Muldrock v The Queen [2011] HCA 39244 CLR 120
R v Engert (1995) 84 A Crim R 67
R v Olbrich [1999] HCA 54
Judgment (7 paragraphs)
[1]
The application for leave to appeal against sentence
[2]
Ground 1: failure to accept unchallenged evidence of the applicant
Ms Francis, who appeared on behalf of the applicant, submitted that his Honour was bound to make a finding on the question whether Jake fired the air rifle and that the applicant's account ought to have been accepted as it was relevantly uncontroverted.
The sentencing judge was not entitled to take facts into account in a way that was adverse to the interests of the offender unless the facts have been established beyond reasonable doubt, but if there were circumstances to be taken into account in favour of the offender it was sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
It follows from this principle that the sentencing judge would have been entitled to take into account that Jake fired the air rifle if his Honour had been satisfied on the balance of probabilities that this is what actually occurred. However, his Honour was not obliged to accept the applicant's account, merely because neither Jake nor the victim nor the victim's wife was called to controvert it. Although Ms Francis described the applicant's evidence as "unchallenged" it was more correctly described as "uncontroverted" since it was put to the applicant by the Crown in cross-examination at the sentence hearing that no shots had been fired and the concession elicited from the applicant (for what it was worth) that the shots could not be heard on the recording of the Triple-0 call.
The trial judge's reasons indicate that his Honour accepted, on the balance of probabilities, that the applicant believed that the air rifle was involved and also believed that some shots were fired. This finding, which was in the applicant's favour, was open to his Honour. The applicant has not demonstrated any error in the sentencing judge's approach.
Furthermore it is difficult to see what difference it would have made if the finding had been made that Jake had fired the air rifle. Jake had been woken in the early hours of the morning by the applicant, with whom he had an ongoing dispute. He could see his father on the lawn with the applicant. Jake must have been concerned for his father's welfare. I do not accept that Jake's conduct, even if he had discharged the air rifle, could amount to any relevant provocation that would mitigate the seriousness of the applicant's assault of Jake's father. It was, in my view, open to the sentencing judge to consider that the actual facts relating to the air rifle were not particularly material to the overall sentence. Moreover, as referred to above, the finding that the sentencing judge made (that the applicant believed that the air rifle had been discharged) was in the applicant's favour.
Where there are agreed facts for sentence it is desirable that the statement of agreed facts be signed by or on behalf of the offender and the Crown. Where there are disputed facts it is necessary that any dispute be described with some precision so that it can be recorded on the transcript, if not in a document. Any evidence relating to the disputed factual issue can then be adduced and the issue determined, if required, by the sentencing judge in the remarks on sentence. In the present case, this course was not adopted. Although a dispute was flagged by Mr Ford, it was not described with precision. The statement of Agreed Facts was neither signed nor objected to. However, it was, in some respects, irreconcilable with the applicant's evidence. For example, the so-called Agreed Facts recorded that Jake went inside to get an old wooden axe handle when this was plainly not agreed.
Nonetheless, for the reasons given above in the narrative of the sentence hearing, I consider it to be reasonably clear that there was agreement as to the facts on the basis of which the applicant was to be sentenced, with one exception: whether Jake came out of the house with an air rifle and whether it was fired. The present case illustrates the importance of identifying agreed facts for the purposes of sentencing. Even if negotiations about the facts are continuing up until the time of the hearing, a typed draft brought to Court should be amended, by hand, if need be, and the changes initialled so as not to delay the proceedings. If this procedure is adopted, the sentencing judge and, in the event of an application for leave to appeal, this Court are in a position to know the extent of the agreement as to the facts.
[3]
Ground 2: the sentencing judge erred in the conclusion that he was bound to follow Chen v R [2011] NSWCCA 85
His Honour, in the course of the remarks on sentence, referred to the decision of this Court in Chen v R. His Honour also mentioned the fact that his natural brother was a member of the Court that determined the appeal. His Honour also highlighted the double-meaning of the word "brother" which embraces not only a natural brother, but also another judge, who is a colleague. In the present case, Garling J was a brother in both respects to Garling ADCJ. His Honour's comments, though gratuitous, do not, in my view, reveal error and amount to no more than a relatively unguarded but impromptu irrelevant remark such as might insinuate itself into reasons given ex tempore, where the judicial officer does not have the luxury of time that would have afforded an opportunity to remove it. Any impression of error that these comments may have created was, in my view, dispelled by the following words: "not because of that case but because that sort of shows where the Court of Criminal Appeal are thinking about in these cases".
Ms Francis also submitted that Mr Ford had drawn the sentencing judge's attention to R v Chen to provide an example of what Mr Ford described as a "much more serious matter" in which a sentence of five years with a three year non-parole period was imposed. The purpose for which Mr Ford relied on R v Chen appeared from the transcript.
The use that can be made of other cases is limited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1, per Simpson J at [303]-[305], cited with approval by the plurality in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [54]. I do not consider that his Honour's remarks on sentence, fairly read, disclose any lack of appreciation of the use to which R v Chen could be put. Error cannot be demonstrated merely by comparing one decision with another and trying to reconcile them as if one were a benchmark and the other required to be measured accordingly.
[4]
Ground 3: the sentencing judge failed to have regard to the principles which apply to sentencing persons with a mental illness
The applicant submitted:
"The complex considerations which warranted particular leniency in this case were the coincidence of the applicant's youth, his tragic personal history and the resultant psychological frailties of a very young man with no tendencies towards violence."
A mental condition cannot be regarded as either mitigating or aggravating since it depends on the circumstances: it may, for example, diminish moral culpability and lessen the requirement for general deterrence but may increase the risk of future offending: R v Engert (1995) 84 A Crim R 67 per Gleeson CJ.
It may be accepted that the applicant was young, had a very sad history and background and had been traumatised by the violence suffered by members of his family, and in particular the assault on his father and the murder of three of his close relatives. The sentencing judge accepted the applicant's resultant psychological frailties and that he had no relevant criminal record prior to the offence for which he was to be sentenced. Nonetheless, his Honour was bound to take into account the matters listed in s 3A of the Crimes (Sentencing Procedure) Act including: punishment (s 3A(a)), general and specific deterrence (s 3A(b)) and the protection of the community (s 3A(c)).
Furthermore the maximum penalty for the offence is 25 years and the standard non-parole period is seven years. These are the relevant guideposts, which his Honour was obliged to take into account: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27].
I am not persuaded that ground 3 has been made out.
[5]
Ground 4: the sentence is manifestly excessive in the unusual circumstances of the present case
The applicant relied on the following factual findings in support of the submission that the sentence was manifestly excessive:
"the offence occurred in the context of an 'ongoing dispute and obviously a somewhat difficult situation';
the applicant 'probably' took the machete to protect himself;
the offence was not planned;
the applicant did not go to the property with the intention of injuring anyone;
he was remorseful and had good prospects of rehabilitation;
there were special circumstances and
the injuries had resolved at the time of sentencing."
For the reasons given above, I am not satisfied that any of the specific grounds (1, 2 or 3) have been made out. However, manifest excess is a conclusion and does not require the identification of a specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].
Although the applicant's subjective circumstances revealed substantial misfortune and hardship, the objective circumstances of the offence were serious. The applicant went to a residential property at one o'clock in the morning to disturb the occupants. He carried a machete in his back pack. Although his actions appeared to be in furtherance of an existing dispute, he was responsible for escalating the dispute on the night. The victim was a householder who was disturbed in the middle of the night by someone who was apparently antagonistic. When the victim attempted to disable the applicant, he was stabbed with a machete and suffered injuries which, though substantial, might have been even more serious having regard to the weapon used to inflict them. In these circumstances I do not consider the sentence imposed on the applicant to be manifestly excessive.
[6]
Proposed orders
I propose the following orders:
1. Grant application for leave to appeal.
2. Appeal dismissed.
[7]
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Decision last updated: 10 April 2015
SIMPSON J: I have read in draft the judgment of Adamson J. I agree with the orders proposed by her Honour, and with her reasons. I wish only to add briefly to the reasons given in relation to Ground 2. This ground arises out of a remark made by the sentencing judge, quoted at [32] of the draft judgment of Adamson J.
The sentencing judge referred to a previous decision of this Court (Chen v R [2011] NSWCCA 85) which had been cited to him, and stated that he was bound to follow it. Precisely what he meant by that is unclear. Of course, a District Court judge is bound to follow statements of principle made in this Court. But his Honour did not refer to any statement of principle in Chen by which he considered himself bound, and which he therefore felt obliged to follow. A reading of Chen shows that, to the extent that there are statements of principle, they are orthodox and well known.
However, the offender in Chen was sentenced to imprisonment for 5 years with a non-parole period of 3 years. That is the sentence ultimately imposed upon the applicant. The remark, taken in isolation from other remarks, but together with the sentence, is apt to give the impression that his Honour felt he was bound to impose the sentence that had been imposed in Chen. If that were what happened, error would be revealed.
Perusal of the transcript of the discussion prior to sentencing shows that this was not the case. His Honour was shown a decision of this Court in R v Rudd [2010] NSWCCA 71, about which he expressed the opinion that the sentence imposed was unduly lenient. He was then handed the judgment in Chen, and observed that the sentence was "five and three". He confirmed that an appeal from that sentence had been dismissed. He then turned his attention to statistics (presumably those prepared by the Judicial Commission of NSW) and observed that 96 per cent of offenders convicted of the offence to which the applicant pleaded guilty would be sentenced to imprisonment, and that the most common sentence, applicable to 26 per cent of offenders, was 6 years. He said that he did not look at the non-parole periods. He said:
"But the most common sentence is six years and then there's four years, five years, seven years, whatever.
…
I think they go between two years and 16 years so that's a pretty wide range."
He agreed with the observation of counsel for the applicant that the offence was "a wide ranging" one.
This discussion indicates, in my opinion, that the impression that his Honour felt obliged to impose the sentence that was imposed in Chen is incorrect. However, it is understandable from the manner in which the remarks on sentence were framed.
HARRISON J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against the sentence imposed by Garling ADCJ in the District Court at Nowra on 6 December 2013 following his plea of guilty to the offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). Two matters were taken into account on a Form 1 (pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW)): driving an uninsured vehicle and using an unregistered vehicle. The applicant was sentenced to imprisonment for five years commencing on 23 June 2013, with a non-parole period of three years.