Conclusion
51 Although the Crown has succeeded on most the individual matters upon which it relies, the question still remains whether the sentence of 6 years including a non-parole period of 3 years was manifestly inadequate. In aid of the submission that it was not, Mr Dhanji, counsel for the Respondent drew to the Court's attention a number of prior decisions of this Court involving offences under s33.
52 In R v Jenkins [2006] NSWCCA 412 the offender had become upset by the victim laughing at the offender's boyfriend on a dance floor. After an earlier confrontation, the offender shoulder charged the victim. After further words and while the victim was turned away the offender poured water over her and then drew her arm back and pushed a glass she was holding forward with such force that it broke in the area of the victim's eye causing facial scarring and eye damage. After inflicting the injury the offender walked away, apparently indifferent to the injuries inflicted.
53 The prognosis for recovery of sight in that eye was extremely poor. There was a significant chance that the victim might require removal of the eye itself and there was a possibility that the damage to that eye would pose a risk of sympathetic ophthalmia which could affect the other eye. The effect on the victim's life was substantial, including the fact that it was unlikely that she could continue a promising and lengthy career in the Police Service.
54 The offender was 19 at the time of the offence, had had difficulties in her upbringing and was regarded as having a strong subjective case. She had maintained employment since leaving school and at the time of sentence was in a stable relationship of 2 years duration. At the time of the offence she was suffering from bouts of "a major depressive disorder", her depression being exacerbated by, inter alia, a large amount of alcohol she had consumed. She had no criminal record and since the offence she had abstained from alcohol, expressed remorse for her actions and been seeking counselling to manage her problems and anger. At the time of sentence, she was being treated for cervical cancer. She was regarded as unlikely to re-offend and having good prospects of rehabilitation. The trial judge concluded that the offence was "somewhat below the middle of the range of objective seriousness".
55 This Court concluded that that finding was open to his Honour and although his Honour had erred in his approach to the standard non-parole period and the sentence of 5 years including a non-parole period of 2½ years was lenient, it was within the trial judge's discretion. The members of the Court said that they would have imposed heavier sentences at first instance but dismissed the Crown appeal.
56 In R v Chisari [2006] NSWCCA 19 this Court allowed a Crown appeal in the case of an offender who had driven a vehicle at a police officer effectively obliging the officer to jump onto the bonnet of the vehicle. The offender then accelerated and the officer fell off. He suffered, inter alia, a displaced fracture of the right distal radius, a period of extreme pain, difficulty sleeping and recurring dreams of the incident.
57 The offender had a minor criminal record but no prior time in custody. The sentencing judge took the view that the offence was unplanned and the product of panic and assessed it as in the lower range of objective seriousness, a characterisation which Simpson J, with the concurrence of the other members of the Court, regarded as open.
58 Nevertheless this Court found latent and patent error in the original sentencing of the offender and sentenced him to imprisonment for 5 years including a non-parole period of 2½ years. The offender had been convicted after a trial.
59 In Matzick v R [2007] NSWCCA 92 this Court dismissed an appeal against a sentence of imprisonment for 5 years and 4 months, including a non-parole period of 2 years and 10 months. The offender had gone into a shop on the ground floor of the building in which she lived. The shopkeeper, who knew her, thought she looked unwell and offered her some milk. The offender said she preferred ice-cream and the shopkeeper gave her this. The offender then went behind the counter, produced a small knife and pointed it at the shopkeeper. The latter, who had limited English, did not understand. A struggle ensued in the course of which the offender stabbed the shopkeeper to the left hand side of the neck and to the left rear of the neck. Police arrived. The victim underwent surgery and remained in hospital for 4 days.
60 The offender, who pleaded guilty and was given a 25% discount for doing so, was 21 at the time of the offence and had had a tragic past. She had left school at about 14 and then fell under the influence of a series of older men who abused and exploited her and each of whom was involved with illicit drugs. She herself became an addict and was grossly affected by drugs at the time of the offence. She had only one prior conviction, for possession of drugs, for which she was placed on a bond. She reported 3 prior suicide attempts and after the subject offence she was diagnosed as suffering from a personality disorder with borderline features, depression and auditory hallucinations although in the view of this Court that diagnosis did not entitle the offender to any reduction in sentence. While the offender had some prospects of rehabilitation, they did not seem to be good.
61 In R v Deng [2007] NSWCCA 216 this Court in the exercise of its discretion, declined to interfere with a sentence of 3 years, including a non-parole period of 2 years, such sentence to be served by way of periodic detention. Although the victim had suffered 4 stab wounds in an unprovoked attack, 2 of which wounds had punctured his spleen and lung, the sentencing judge had characterised the offence as above low level but below mid-level, a description this Court said was open. The circumstances leading to the offence and of the offender were singular and as this Court did not indicate what sentence would have been appropriate, I do not find the case of any assistance here.
62 In R v Ferrer [2008] NSWCCA 104 the offender had pleaded guilty to maliciously inflicting grievous bodily harm by stabbing the victim with a pair of scissors once in the abdomen, 4 times in the back and once behind the left ear. The offender had encouraged the victim, a friend, into a car driven by a third person, and then confronted him with suspicions that the victim had stolen some possessions of the offender. According to the offender the exchange that followed, which included the victim admitting and then denying the theft, made him angry. He invited the victim to get out of the car and fight. The victim declined, the offender re-entered the rear of the car to confront the victim. The offender said that his anger increased when the victim produced the scissors and tore a chunk out of the offender's hand with them. The offender said that his attack on the victim occurred only after he managed to wrest the scissors from the victim. It seems that the offender desisted of his own volition.
63 The sentencing judge concluded that he could not reject the possibility that it was the victim who had produced the scissors but observed that the context of the events was the offender's aggression. He found that the attack was not premeditated but spontaneous in the context of the offender's desire to avenge the loss of his property and assessed the offence as falling "somewhat below the mid-range". A discount of 10% was allowed for the offender's plea.
64 Ferrer was 24 at the time of the offence, he had had difficulties in his childhood and had commenced to use heroin and amphetamines at the age of 13. He was on the methadone program at the time of the offence. He had a criminal history largely consisting of convictions for possession of prohibited drugs and offences of dishonesty. He had been imprisoned once, for 3 months, for the supply of drugs. He had one conviction for having custody of a knife in a public place but no convictions for violence.
65 This Court found that the sentencing judge's assessment of the objective seriousness of the offence was open to him, and that the sentence of 4 years including a non-parole period of 2 years, while lenient, was not unreasonable or plainly unjust and dismissed a Crown appeal. In so concluding the Court was clearly influenced by the earlier decisions to which I have referred.
66 The Crown was invited to respond to these authorities and directed the Court's attention to 3 further decisions. In Ilioski v R [2006] NSWCCA 164, the offender, having been involved in a brawl with a number of others earlier, returned to the fray armed with a knife and effectively invited others to "have a go now". The offender then closed on the victim and slashed him. There were at least 6 wounds, the most serious being to the front of the victim's neck with an associated tracheal injury requiring urgent cardiothoracic surgery. A sentence of 4½ years including a non-parole period of 2½ years was imposed - a sentence that was said by this Court to be within the appropriate range. However, the charge in that case was one under s35 of the Crimes Act where the maximum penalty is 7 years and, except insofar as the case suggests that the sentences in the cases relied on by the Respondent were lenient, it provides but limited assistance.
67 In Ghazi v R [2006] NSWCCA 320 the offender had become involved in a confrontation. He commenced to leave the scene swearing and aggressively threatening the physical safety of the victim. However, he turned around and went back to the victim. A further confrontation occurred during which the offender produced a knife. Things escalated over a short period and then the offender commenced to stab the victim. The latter received 7 stab wounds, 2 each to the back and stomach and one to each of his ribs, right and left forearm. The most serious punctured his liver resulting in a large loss of blood. The victim required 2 operations but his prognosis for recovery was good.
68 The offender pleaded guilty and a discount of 20% was allowed on that account. He had some prior convictions, the only ones material being one for assault and one for custody of a knife in a public place. He had never previously been incarcerated. The offender suffered from epilepsy, a history of substance abuse and mental state disturbance including an underlying paranoid personality. Although the report reveals little detail, it appears that evidence was placed before this Court of an attack on the offender while in custody and as to the effect of that attack on him.
69 Taking the view that there had been patent error by the sentencing judge, this Court sentenced the offender to imprisonment for 9 years and 7 months (12 years less 20%) including a non-parole period of 5 years. Howie J, with the concurrence of Tobias JA, described the sentence as lenient.
70 In Wilmot v R [2007] NSWCCA 278 this Court declined to interfere with a sentence of 11 years including a non-parole period of 7 years on a offender who, in a premeditated and planned attack on a second husband of the offender's previous wife, stabbed him a number of times. One of the wounds punctured one of the victim's lungs, and another left him with permanent loss of strength and sensation in a hand. The sentence was cumulative, to the extent of 6 months on a sentence for another unconnected offence later in the day. The offender was assessed as suffering from a mental illness but the sentencing judge was not persuaded that this contributed to the commission of the offence.
71 His Honour concluded that the offender had a prospect of rehabilitation if his family relationships could be properly adjusted and he underwent psychiatric treatment. He was regarded as entitled to a discount of 25% for his plea. The sentencing judge had concluded that the offence was "well above the standard non-parole period and well above the mid-range in objective seriousness". This Court regarded as aggravating that at the time of the offence, the offender was subject to an apprehended violence order in respect of the victim.
72 It is also appropriate to refer to the Judicial Commission statistics. As at the present they show for offences under s33:-
(i) of 82 offenders who pleaded guilty and were sentenced to prison, the head sentences ranged between 2 and 12 years, the median being 6 years and the non-parole periods or fixed terms ranged from 1 to 8 years, with the median being 3 years; and
(ii) of 23 offenders who pleaded not guilty and were sentenced to prison, the head sentences ranged between 4 and 14 years, the median being 8 years and the non-parole periods or fixed terms ranged from 2 to 10 years, with the median being 5 years.
73 Being but 5 cases out of about 105, the cases relied on by Mr Dhanji can hardly be regarded as representative. Furthermore, the cases referred to by the Crown demonstrate the dangers of this Court being tempted to rely on only a few cases cited by counsel for an offender and reinforce the Court's long-held view expressed, for example in R v Campillo-Vaquere [2004] NSWCCA 271 at [77]:-
"This Court has said on many occasions that it is not a proper approach to sentencing to seek to compare a sentence under challenge directly with that imposed on another offender (who is not a co-offender) simply because the 2 offenders may have similar characteristics and may have committed similar crimes - see e.g. Morgan (1993) 70 A Crim R 368 at 371; R v Lawson (1997) 142 FLR 323 at 324, per Hunt CJ at CL; R v Speechley [2002] NSWCCA 300 at [39]; R v Trevenna [2004] NSWCCA 43 at [50, 89 and 99] … ."
74 The fact that a few cases, rather than one, are used does not make the situation better, unless it is also established that those cases are fairly representative.
75 Uninstructed by counsels' reference to authority or the statistics, and putting aside the factors incidental to this being a Crown appeal and any question of adjustment in light of a finding of special circumstances it seems to me very difficult to justify a sentence that involves a non-parole period of less than about the statutory guide post of 7 years. Such mitigation as the Respondent was entitled to by reason of his plea is largely, if not more than, offset by his record of previous convictions whether on the basis that that record is an aggravating factor within s21A(2) or that it demonstrates that the Respondent is a recidivist and prior, much lesser, periods of incarceration have not been sufficient to deter his aggressive tendencies.
76 Such a conclusion cannot be reconciled with the cases relied on by Mr Dhanji which clearly argue for less. Of course, there are grounds of distinction between those cases and the present. In R v Jenkins the objective seriousness of the offence was described as "somewhat below the mid-range", there was less or no premeditation, the offender did not have the Respondent's record and had a far better prospect of rehabilitation. On the other hand, the injury was far more serious. In R v Chisari, the offence was regarded as in the lower range of objective seriousness, there was less or no premeditation, and the offender did not have the Respondent's record. On the other hand, the offender had pleaded not guilty. In Matzick v R the offender did not have the Respondent's record and there would seem not to have been the same degree of premeditation. In R v Ferrer the offence was assessed as falling "somewhere below the mid-range", there was no premeditation and the offender did not have the Respondent's record for violence.
77 Nevertheless, these matters are not sufficient to explain satisfactorily the difference between what seems to me appropriate here and the sentences imposed in the cases upon which Mr Dhanji relies.
78 Of course, the cases relied on by the Crown are also insufficient to be regarded as representative. They do, however, tend to show that my own inclinations are not outside the appropriate range. The statistics, though a blunt tool, argue in the same direction. In totality, I am satisfied that by comparison with both statutory guides, the 25 years maximum and the 7 year non-parole period for someone who had pleaded not guilty, the sentence imposed by English DCJ was manifestly inadequate. When one adds the fact that the sentence was made concurrent with a sentence of 18 months for an entirely separate offence, and the non-parole period was reduced to as little as 3 years, the matter becomes a fortiori.
79 There remains the question whether, this being a Crown appeal, this Court should interfere. I have already referred to a concession made by the Crown prosecutor before her Honour to the effect that the Respondent pleaded guilty at the first available opportunity.
80 Mr Dhanji also submitted that the Crown Prosecutor had conceded that the sentences could be made concurrent. That is not so. What occurred was that counsel for the Respondent, when dealing with the detain for advantage and assault chares had urged that "Any sentencing in respect of those matters would be dealt with on a concurrent basis arising essentially out of the same set of circumstances". In response the Crown prosecutor is recorded as saying:-
"Your Honour I don't cavil with any of my friend's further submissions, that is in relation to the detain for advantage and assault occasioning actual bodily harm, I certainly would be urging that any sentence in relation to those matters, be other than concurrent."
81 Mr Dhanji submitted that the word "not" had been omitted and should be understood as included immediately before the words "be urging". The Crown did not concede this but the sense of the passage does seem to me to indicate that the word should be inserted. However, even on that assumption, it is clear that the concession of concurrency related to, and to only, the detain for advantage and assault charges.
82 Mr Dhanji also pointed to the passage of time since the Respondent was arrested on 23 September 2006, to the decisions of R v Spiers [2008] NSWCCA 107 and MRN v R [2006] NSWCCA 155 and to the remarks of Heydon JA in R v Hernando (2002) 136 A Crim R 451 to the effect that "the impact on the respondents of the uncertainty in the period between when the Crown gives notice of its desire to appeal and the time when the appeal is decided must be agonising".
83 Undoubtedly undue delay does argue for some mitigation of punishment and, in some cases, has been sufficient to induce this Court to exercise its discretion against allowing a Crown appeal. In this case I am not disposed to place any significant weight on the delay between arrest and the Respondent pleading guilty on 9 October 1997. In the case of the charge the subject of the current appeal, that was an option he had open to him from about the first time he appeared in Court. I am disposed to give some weight to the delay after October but it remains important to retain proper relativity between that delay on the one hand, and on the other, the seriousness of the Respondent's offending and the importance of proper punishment.
84 Relevant also to the exercise of the discretion is the evidence contained in 2 affidavits filed on behalf of the Respondent. They indicate that the Respondent has made efforts to participate, and has participated, in a substantial number of courses calculated to minimise the risk of further offending and to improve his life skills. They also show that he has been employed while in custody and has had, and anticipates further, family contact. One of the affidavits, that of the Applicant, also addresses the impact of the Crown appeal on him.
85 Thus, quite apart from the general discretion in this Court not to interfere in a Crown appeal, there are 2 additional matters that argue against doing so. The concession by the Crown in the court below resulted in a discount of 25% rather than the 15% or so that should have been allowed for the Respondent's plea. There is, in addition, the matter of delay. However, the difference between the sentence imposed and that which should have been imposed is gross. Only to a small degree can it be explained by the Crown concession below and in the circumstances the appeal should be allowed.
86 Nevertheless, in the exercise of this Court's discretion, I propose the imposition of a sentence which is below the bottom of the range of sentences that should have been imposed at first instance. The Respondent is entitled also to the benefit of English DCJ's finding of special circumstances and some alteration in the ratio of the non-parole period and balance of term on that account.
87 Accordingly I propose the following orders:-
(i) Allow the Crown appeal;
(ii) Quash the sentence imposed by English DCJ on the Respondent on 23 January 2008 in respect of the offence of maliciously inflict grievous bodily harm;
(iii) In respect of that charge, sentence the Respondent to imprisonment for a non-parole period of 4 years and 6 months commencing on 23 March 2007 together with a further period of 3 years.
(iv) Record as the date upon which it appears to the Court that the Respondent shall become eligible for parole, 23 September 2011.
88 HIDDEN J: I agree that this appeal should be allowed. I find it unnecessary to determine each of the grounds argued by the Crown. Certainly, the reduction of sentence for the plea of guilty was over generous and some measure of accumulation was called for. However that may be, I am persuaded that the sentence passed upon the respondent for this offence, particularly in the light of his criminal history, is manifestly inadequate.
89 I agree with the orders proposed by Hulme J.