R v Abboud [2005] NSWCCA 251 | Case summary

10 The conduct charged in Offence 1, assault occasioning actual bodily harm, occurred on the evening of 13 September 2004. An argument developed between the respondent and the victim in circumstances where the victim, contrary to the wishes expressed at the time by the respondent, wanted to go to sleep. That difference of view resulted in the respondent occasioning verbal and physical abuse on the victim. He pulled the victim up by her arms from a lying position and hit her in the left side of her ribs fracturing one of them. 11 The conduct charged in Offence 2, common assault, occurred on 24 September 2004 again, it seems when the respondent and the victim argued over whether the victim should be able to go to sleep or whether she should be required to stay awake with the respondent. The victim was in bed dozing off and the respondent threw the remote control from the television at her, hitting her in the head in order to awaken her. 12 Offences 3 to 6 each occurred on the same day, Tuesday, 28 September 2004. The victim and the respondent argued extensively during which there was significant verbal abuse. The fight was concerned with the respondent's use of drugs. The children living at home were woken by the arguing but were not present during the assaults. The victim asked the respondent to leave, to which request he replied: "I am not going anywhere. I'll be your worst nightmare." After further verbal abuse by the respondent, the respondent pushed the victim in the chest with his right hand causing the victim to fall backwards onto the bed. The respondent then punched the victim in the head three times, which punching is the offence I have described as Offence 3. 13 After Offence 3 had been committed, the victim was apparently crying to which the respondent said: "I can't stand chicks who cry." The respondent grabbed the victim around the neck with both hands and restricted her breathing. While her breathing was restricted the respondent said: "How does it feel to have the breath of life taken out of you. I could kill you as quick as one, two, three, like that." The respondent released the victim a short time later and grabbed the victim around the neck again whereupon the victim struggled to breathe and felt dizzy. (Offence 4) 14 A short time after Offence 4 (the choking episode) had been committed the respondent ordered the victim from the bedroom into the lounge area where four children were watching television. The respondent ordered the victim onto the mattress with the children. While the victim was on the mattress, the respondent approached the victim and "stomped on her legs with both his feet". The respondent then kicked the victim in the legs and stated, "The lot of you are gone." The stomping and kicking incident is Offence 5. 15 The victim rose from the mattress to use the toilet. After questioning the victim in an abusive manner as to what the victim was doing, the respondent became enraged, grabbed the victim by the cheeks with both hands and bit the victim on the right side of the face under her eye (Offence 6). After the respondent left the house, the victim fled with the her children. 16 I earlier stated that the respondent pleaded guilty. This he did when the matter had been called on for hearing and after a voir dire examination had been held on the admissibility of certain evidence. His Honour applied a discount of 15% for the plea. 17 As can be seen from the above the common assaults are most serious offences of this kind. Damage and Photographs 18 During the sentence hearing the Crown tendered evidence (Exhibit B), being eleven (11) photographs of bruising and damage occasioned by the common assaults. The offence of common assault is an offence, as earlier stated, under s.61 of the Crimes Act 1900. It is an offence that is described in terms "although not occasioning actual bodily harm". The seriousness of the offence of common assault must be discerned from the circumstances of the offence. If bodily harm has been caused then that is relevant to whether there has been an offence under s.59 or under s.61 of the Crimes Act. It is not, and can not be, relevant to the sentencing of a person under s.61. 19 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. While it may be that this occurs because of agreement relating to a plea on a lesser charge, it is still impermissible and if it is not possible to adduce material relevant to the sentencing without also adducing irrelevant material the matter should be adjourned in order to be dealt with properly. The adducing of such material has become a common occurrence which is to be deprecated. Principles of Crown Appeal 20 Much reliance was placed by the respondent to this appeal on the principles governing appeals by the Crown and the exceptional nature of the power conferred on the DPP to appeal a sentence imposed by a court. Particular reference must be made to the expectation that such appeals will be rare and generally for the purpose of laying down sentencing principles. The Crown in this appeal acknowledged the exceptional nature of the power to appeal but sought to point to particular problems in the sentence below and the manifest inadequacy of it. While the power reposed in either the DPP or the Crown to appeal a sentence under s.5D of the Criminal Appeal Act 1912 has been described in a number of ways to emphasise its exceptional character, ultimately it is a power granted by the legislature that, while the Court may discourage its use on other than rare occasions, is available to the Crown and when such an appeal is filed, it must be dealt with in accordance with principle. Those principles have been summarised by Wood CJ at CL in a much cited passage in R v Wall [2002] NSWCCA 42, which is cited in full in R v Prasad (2004) 147 ACrimR 385 at [27]. Those principles are summarised in the following way: "(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 207 CLR 584; 76 ALJR 79 at [58] and [109]. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons': per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299, 74 ACrimR 241 at 244; Dinsdale v The Queen (2000) 202 CLR 321, 115 ACrimR 558, and Wong and Leung v The Queen . (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 ACrimR 561, Director of Public Prosecutions v Papazisis (1991) 51 ACrimR 242 at 247, and Wong and Leung v The Queen at [110]. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para [62]." 21 To those principles ought to be added the statement in Dinsdale, supra, that the Court will have a "strong resistance" to tinkering with sentences. 22 The Crown concedes that even more rare than the use of s.5D of the Criminal Appeal Act 1912 would be the use of it in relation to one count of assault occasioning actual bodily harm and five counts of assault. The Crown described such an appeal as "surprising". I agree with this description as a general statement relating to the kind of crime to which these sentences apply and the kind of sentence here imposed. 23 To the principles above stated and in particular the application of the principles in House v The King ought to be added the injunction to appellate courts in the joint judgments of Gummow, Callinan and Heydon JJ in Johnson v The Queen (2004) 78 ALJR 616 at [26]: "Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected." 24 It is these principles which must be applied in dealing with the matter now before the Court. The Crown relies upon a number of aspects of his Honour's judgment in its appeal which grounds include: a failure to give sufficient weight to the respondent's prior history; the failure to fix appropriate sentences for each offence as distinct from the adoption of a global approach; to the extent that it is different from the last mentioned ground, the making of the sentences concurrent and the mitigation of sentence by reason of the 5 month period from arrest to sentence; the giving of too much weight to the prospects of rehabilitation resulting in the finding of special circumstances; and, manifest inadequacy. Given the principles that apply to tinkering with sentences on appeal, particularly in a Crown appeal, unless manifest inadequacy can be shown, the other grounds, even if correct, would not result in a successful appeal. Relevant History 25 As can be seen from the preceding paragraph, the respondent has a criminal history which was purportedly taken into account in the sentencing process. It is necessary to set out some of the respondent's personal history and to include some reference to the proceedings at first instance. 26 The respondent was, at the time of the commission of the offences, 39 years of age and had a criminal record dating back to 1990. His conviction history is set out in the submission of the Crown with which no issue is taken and is a summary of his criminal history that is otherwise before the Court. His convictions for violent offences included: "Two common assaults in 1990, another common assault in 1991 (committed whilst on a bond), armed robbery and two counts of kidnapping (committed whilst on a bond) for which he received a term of imprisonment commencing in 1995, an assault occasioning actual bodily harm for which he was sentenced to a term of imprisonment commencing in 2003 by Judge Finnane QC … and a common assault and contravention of an apprehended domestic violence order for which he received a fixed term of three months imprisonment in 2003. This fixed term of three months was imposed by the Local Court and made concurrent with the non-parole period already imposed by Finnane DCJ and hence represented no punishment at all. He also had drug offences in 1992." 27 The sentence imposed by Judge Finnane is particularly relevant. Judge Finnane QC sentenced the respondent to imprisonment for a term of 3 years with a non-parole period of 18 months for an offence of assault occasioning actual bodily harm which offence was an assault upon his then partner (a former partner and not the victim in the offences charged). That sentence commenced on 11 July 2002 and the offences with which the respondent was here charged were committed during the parole period relating to that offence. On the commission of the offences with which the Court is here dealing, the respondent's parole was revoked and he served out the remainder of his sentence. 28 The Crown has submitted, correctly, that an offender who abused parole by committing further crimes, and, a fortiori the same crime, should "expect salutary penalty". 29 The offence was a breach of parole conditions (and in that regard, almost all offences committed by the respondent over the period since 1990 were a breach of one or more parole conditions). As a result of the offences now before the Court, the respondent was required to serve out the remainder of his earlier sentence. As a consequence, the breach of parole has, in almost every sense, been "punished". His Honour fixed the commencement date of the sentence as the date on which sentence was passed, namely 4 March 2005, and, therefore, the respondent had served some 5 months solely on account of his breach of parole because of its revocation. At the same time it was the very offence to which these charges relate that was the cause of the further period of imprisonment. It would have been inappropriate for the sentencing judge to have paid no regard to the effect caused by the offences for which the respondent was about to be sentenced already having been the subject of punishment by way of imprisonment. His Honour did this by commencing the sentence from the sentencing date (a later date was prohibited) and thereby provided for the five month period being solely on account of the breach of parole. This was not an error nor should or could it be corrected on appeal. 30 As to his criminal history, the sentencing judge purported to take his criminal history into account. His Honour said: "The Crown Prosecutor … has pointed out to the Court that there are a number of aggravating factors to be taken into account, principally, that the offender has a record of previous convictions." 31 As the respondent's counsel has pointed out, this may have been an error adverse to the respondent in the manner in which the prior record was taken into account. It is unsatisfactory to refer to the previous record as an aggravating factor without explaining precisely the manner in which it is taken into account. 32 However, it can not be said, as was the Crown submission, that the previous record was not taken into account. Whether, on the other hand, it was adequately or appropriately taken into account, is difficult to discern. It is not clear from the comment of his Honour whether his Honour has used the prior criminal history to increase the objective seriousness of the offence, which, if it were used in that way, would be impermissible, or whether he has used it to lessen the leniency that might otherwise be shown to a first time offender whose conduct can be seen as aberrant. In Veen v The Queen [No. 2] (1998) 164 CLR 465 at 477, the distinction between the two uses was discussed and, as the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ pointed out: "The antecedent criminal history is relevant … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifestered in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 33 The degree to which the respondent in this matter has shown a total disregard to the sentences that have been imposed upon him for violent crime of a like kind and other violent crimes manifests a continuing attitude of disobedience of the law and total disregard to the well being of his partners. It is, in the circumstances of the respondent's history, an overwhelming view that the most severe penalty is warranted on account of retribution, deterrence and protection of society and the moral culpability of the offender. There comes a point where the punishment meted out by the courts must act as a deterrent to the continuation of conduct which has occurred with alarming regularity in almost identical situations and with little or no seeming concern for the effects of that conduct on those persons against whom it is perpetrated. Given the nature of the offences and the history of prior offences of a like kind and the punishment for them, his Honour can not have had sufficient regard to the need for deterrence and the propensity of the respondent to commit, once more, offences of a like kind. Moreover, as previously stated, the circumstances and criminality involved in the common assaults is of the most serious kind for that offence. That is not so in the case of the assault occasioning actual bodily harm, but the circumstances are still, objectively assessed, and paying no account of any mitigating or aggravating factors, an offence in which the criminality involved is serious. 34 Returning briefly to Veen [No. 2] at 473: "It is one thing to say that the principle of proportionality precludes imposition of a sentence extending beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension, merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible."

I will return to these issues at a later time in this judgment. 35 As to the question of the nature of the sentences imposed and the "global approach" said to have been taken by His Honour, the Crown has submitted that the sentencing judge acted otherwise than in accordance with the principles laid down by the High Court on these issues. 36 It has often been stated that in sentencing an offender, an appropriate sentence must be fixed which considers all of the questions associated with the criminality of that offence. In the case of multiple sentences for multiple offences, the totality principles adumbrated by the High Court in Pearce v The Queen (1998) 194 CLR 610 are well known and ought to be applied. I have already referred to the flexibility which nevertheless remains in a sentencing judge and was referred to in Johnson, supra. In Johnson, the joint judgment, cites, with approval, the judgment of the High Court in Mill (see paragraphs [18] and [19] of Johnson) and deals then with an argument that Mill and Pearce are inconsistent or internally inconsistent. The High Court makes clear that there is no inconsistency between Mill and Pearce and that each reflects the level of flexibility that must be retained by a sentencing judge in applying the principles of sentencing. Nevertheless, the approach in Mill is recognised as the orthodox approach to sentencing. It provides that a separate sentence will be imposed in relation to each separate offence, taking into account the matters that affect that sentence. It is only at the end of the process that the totality principle will be accommodated, preferably, by making the sentences wholly or partially concurrent. 37 In this matter, his Honour seemed to pay little or no regard to the separate offences involved in the matters before him. While it may be true that each of the common assaults that were committed on 28 September 2004 (Offences 3 to 6) may be likened more to one course of conduct, it is inappropriate to deal with a series of separate offences occurring over a period of 2 weeks, each of which requires separate acts of violence and a separate intention, as if it were one act and one offence. By making each of the offences wholly concurrent with the others, his Honour has treated all of the offences as if they were one. 38 Even the four common assaults on 28 September 2004 extended over a considerable period of time which gives the circumstances an appearance of quite separate incidents. For example, as the Statement of Facts document (agreed) makes clear, after the strangling incident, the victim fell asleep. It was only afterward that she was ordered into the lounge area and onto the mattress. Further the common assault associated with the biting incident seems quite separate from the stomping and kicking incident. There can be, however, little doubt, that the punching and strangling incidents were contiguous and each of those four common assaults occurred on the one evening over an extended period of time during which there was, I assume, a continuing level of animosity. 39 I turn then to the question of manifest inadequacy. Given that which I have earlier stated as to the seriousness of these offences, objectively ascertained, it would have to be said that the sentence imposed upon the respondent was very light. It was so described by the Crown before the sentencing judge. When one takes into account, further, the need to impose a sentence which takes account of the specific deterrence necessary for an offender, who is properly described as recalcitrant, the sentence imposed in each of the cases is manifestly inadequate. This is so even allowing the 15% discount for the plea of guilty and the mitigating factors in the Crimes (Sentencing Procedure) Act 1999 particularly, the issues generally applicable and described in s.21A(3)(b), (i), (k) and (l) and to the prospects of rehabilitation although, at the time, there was little evidence of good prospects. I have some doubt about the genuineness of remorse but, given the nature of this appeal, I am prepared to accept it. At this point in time the successful attempts at enrolling in a rehabilitation programme affect positively that assessment. 40 There is one very troubling aspect to that finding. Before the sentencing judge, the Crown submitted, ostensibly without instructions, that the 12 month sentence about which his Honour had enquired was within range albeit "at the very low end". In my view the manifest inadequacy of the sentence has in part been caused by a failure of the Crown to advise his Honour that, in the circumstances of the particular issues associated with the offences before the Court below, a 12 month sentence for the first offence, the assault occasioning actual bodily harm, was manifestly inadequate. Notwithstanding that his Honour's sentence was in part occasioned by the statement by the Crown on sentencing that the 12 month sentence was within range, this Court can not allow to stand a sentence which is so manifestly inadequate for the particular circumstances of this offender. 41 It is therefore unnecessary for me to deal with a number of other matters that were raised during the course of the appeal, except to the extent that they go to the sentence that I would propose should be imposed on appeal. There are however some matters that need discussion. 42 It was suggested to his Honour below that his Honour was entitled to take into account that the matter before him could have been taken in the Local Court and his Honour took that into account. His Honour said: "The offence carries a maximum penalty of 5 years, if being dealt with in the District Court. It is conceded by the Crown that this offence and indeed the other offences, which are all common assault offences, could have been dealt with in the Local Court. I take that matter into account." 43 It is not absolutely clear how it was that his Honour took that into account. It is even less clear that it is even appropriate to take it into account at all. Unless it can be said that the election by the prosecuting authority was inappropriate or unreasonable, the matter is before the District Court and must be dealt with in accordance with the sentencing principles otherwise applicable. 44 The other matter that was raised by the Crown in terms of the criticism of the sentence imposed by his Honour below, was the approach his Honour took with special circumstances associated with rehabilitation. The Crown contended, in light of material that was available, that the issues associated with rehabilitation were disingenuous as was the contrition that was expressed. Because, as is clear from the above, I intend to impose another sentence, it is unnecessary to deal with these issues. 45 Since the time of the original sentencing by his Honour below we have been provided with affidavits relating to a drug rehabilitation program into which the respondent has been accepted. There seems to be no requirement for a particular date upon which the respondent needs to be available. However, given the seeming relationship between the respondent's drug addition and a number of the criminal activities in which he has been involved over a significant period of time, the prospects of rehabilitation associated with such a program is sufficient to warrant special circumstances which would allow a more extended period of supervision than would otherwise be the case. 46 I apply to the sentence for each charge the same discount of 15% as applied below for the plea of guilty, although, in the circumstances, this may have been a little high. As can be seen from the foregoing, I have had regard, in relation to the sentence, to the aggravating factors described in the Crime (Sentencing Procedure) Act 1999 particularly those in s.21A(2)(b), (d), (f) and (j). All of these are taken into account in the manner already outlined and, even without s.21A, would be relevant criteria. Particularly the criterion expressed in s.21A(2)(d) is utilised only in the manner described above by me as appropriate having regard to the comments in Veen [No. 2]. 47 Also, as can be seen from my earlier comments, I have had regard to the mitigating factors of the guilty plea (as already mentioned) and those mentioned in s.21A(3)(b), (h), and (i). I have already referred to those issues. 48 For reasons I have outlined, I propose that the Court make the following orders: (a) The appeal be allowed:

R v Abboud

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Cases Cited (14)

Cited By (31)