There is no requirement that these issues be addressed in any particular order (R v Moffitt (1990) 20 NSWLR 114; 49 A Crim R 20), although the issues are obviously inter-related such that a decision on one aspect may have implications for another. In addressing these issues, the sentencing Judge should, however, bear in the mind the following advice provided in R v Way:
'The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.' "
43 MLP followed the consideration given to the relevant principles in R v Way (2004) 60 NSWLR 168 particularly at [122]. When for reasons which may include a plea of guilty, the standard non-parole period is not of direct relevance it nevertheless remains relevant as a guidepost in the sentencing process (R v Jenkins [2006] NSWCCA 412 at [27]) see also R v Tory and Tory [2006] NSWCCA 18 at [42].
44 The appellant also submitted that his Honour failed to properly evaluate the objective criminality of the offence of reckless wounding. The appellant emphasised that the attack upon his wife by the respondent was "prolonged, escalating, frightening and inherently dangerous due to her poor health". After hitting her with the plastic pipe he threatened to kill her with a gun. He hit her over the head with the stock of the rifle not once but twice and bound her by the neck to the bed head with a rope. He had invaded her bedroom for the purpose.
45 It was submitted that his Honour had placed too much emphasis on the nature of the wounds inflicted when coming to his decision and that apart from the wounds there were other significant matters relevant to the objective seriousness of the offence.
46 The appellant further submitted that his Honour had made another significant error when considering the penalty for the offence contrary to s 93G. One of the elements of the offence was that he possessed "a loaded gun." Accordingly, by his plea he admitted that he knew that the gun which he pointed at his wife was loaded. However, as I have indicated previously his Honour found that the respondent did not believe it was loaded, a finding which was contrary to the effect of the plea.
47 It was further submitted that the sentencing process was flawed because of a failure by his Honour to comply with the principles of Pearce v The Queen (1998) 194 CLR 610 which requires the court to "fix an appropriate sentence for each offence and then consider the question of accumulation or concurrence as well, of course, as questions of totality." It was submitted that rather than give separate consideration to the appropriate sentence in each offence his Honour merely defined the same penalty with the same commencing dates. It was submitted that accordingly his Honour failed to give separate consideration to each offence and consider whether they should be made wholly or partially concurrent. It was submitted by so doing his Honour failed to identify and impose a penalty which reflected the gravity of the s 93G offence.
48 In my opinion the complaints which the appellant makes in the respects which I have identified are all to varying degrees justified. The plea acknowledged that the respondent knew the gun was loaded. Furthermore, as I have indicated his Honour failed to appropriately consider the matters relevant to the objective seriousness of the offences. I am satisfied that both offences were serious and leaving aside the respondent's subjective circumstances both of them justified a significant prison term. The respondent violently attacked his wife, inflicted physical injuries and put her in fear of her life. She, effectively defenceless, was tied to her bed and humiliated. The courts must be mindful of the very serious impact which actions of this nature can have on the victim. In many situations, including the present case, women are vulnerable and effectively defenceless against violent attacks from men with whom they have a domestic relationship. The courts must ensure that the punishment imposed is adequate to both protect persons and deter others from perpetrating similar offences.
49 Although his Honour found the subjective circumstances of the respondent were of significance they could not ameliorate the seriousness of the offences to the degree identified by the sentencing judge.
50 I am also satisfied that the criticism which the appellant made of the individual sentences is justified. His Honour did not approach the sentencing task as required by Pearce. There is no indication that he separately evaluated each offence determined the appropriate individual sentence and then considered issues of totality.
51 Notwithstanding these matters I have come to the conclusion that this is an exceptional case justifying this Court in the exercise of its residual discretion dismissing the appeal.
52 This Court has a residual discretion to refuse to intervene even when error has been established. For this purpose the court may look at matters which have occurred since the original sentence was imposed. In R v Todorovic [2008] NSWCCA 49 at [28] James J, with Mason P and Hislop J agreeing, said:
"On the hearing of Crown appeals against sentence the Court routinely admits evidence of matters occurring after the date of the original sentencing, on the limited basis that the evidence can be taken into account, if the Court proceeds to a re-sentencing of the respondent (and, indeed, in deciding the prior question whether, although a ground of appeal against sentence has been made out, the Court should, in the exercise of its discretion, decline to allow the Crown appeal)."
53 The factors that bear upon the exercise of the discretion are varied. The health of the respondent is one such factor (Regina v Hansel [2004] NSWCCA 436.) In the case of R v Yang [2002] NSWCCA 464; 135 A Crim R 237 at [45] Carruthers AJ, with Simpson J and Mathews AJ agreeing, said:
"Bearing in mind the serious nature of the offence which the respondent committed and giving full weight to the subjective circumstances including her prior good character, it is necessary to conclude that a full time custodial sentence was called for. The resolution of this matter by the imposition of a recognisance was, if I may respectfully say so, manifestly inadequate.
However, that said, the question arises whether, bearing in mind the evidence now before this Court, it should dismiss the appeal in the exercise of its residual discretion. In view of the fragile state of the respondent's health, which may in some way have contributed to the commission of the subject offence, I am of the view that this is a case which calls for the exercise of the Court's residual discretion. I do not agree that a community service order is an appropriate alternative.
Justice must be tempered with mercy, and, accordingly I would propose that the appeal be dismissed."
54 In the present case the respondent in an apparently drunken rage and provoked by talk that his wife was unfaithful to him lost control of himself committing the crimes to which he pleaded guilty. The offences were entirely out of character. His Honour found that the respondent is genuinely remorseful and will not reoffend.
55 There is evidence before this Court which was not objected to by the appellant (see R v Deng Mading Deng (2007) 176 A Crim R 1 at [28]) which indicates that the respondent has suffered greatly from his incarceration. He has been used to living and working on extensive rural properties outside of Bourke. He is not used to physical constraints and has been fearful for his safety within the prison system. He has been removed from his usual environment and transported to a corrective establishment in the Sydney region. He has attempted to commit suicide.
56 An unusual feature of the respondent's circumstances is the support that he has received from his employer. The evidence before the sentencing judge was that he has for many years been given a position of very considerable responsibility in the management of his employer's very large rural holding. Notwithstanding his offending his employers, a husband and wife, have continued to support him and will continue to employ him on his release from custody. Testament to their determination to assist the respondent's rehabilitation was evident from their presence in court during the hearing of the appeal. If this Court was now to intervene and impose a further term of imprisonment it is likely that his adverse response to his incarceration will continue and maybe increased. His prospect of effective rehabilitation may be lost.
57 To my mind the total sentence imposed on the respondent was excessively lenient. A total sentence of 4 years with a 2 year non-parole period would have been more appropriate. But for my conclusion that this is a case when the residual discretion should be exercised a sentence of that order would have been appropriate. However, for the reasons I joined in the orders dismissing the appeal.
58 R A HULME J: I agree with the reasons of McClellan CJ at CL for the dismissal of the Crown appeal.
59 DAVIES J: I agree with the reasons of McClellan CJ at CL for the dismissal of the Crown appeal.
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