R v DAVIES

Chaplin v The Queen (2006) 160 A Crim R 85 Coleman v R (1990) 47 A Crim R 306 R v Baker [2000] NSWCCA 85 CASES CITED: R v SY & Anor [2003] NSWCCA 291 R v Tran [1999] NSWCCA 109 R v Wall [2002] NSWCCA 42 R v Zamagias [2002] NSWCCA 17

PARTIES: The Crown (Appl) Shane Joshua Davies (Resp)

COUNSEL: B Dawe QC (Crown/Appl) P Rowe (Resp)

SOLICITORS: Director of Public Prosecutions (Crown/Appl) Lamrocks (Resp)

IN THE COURT OF CRIMINAL APPEAL 2007/728

TOBIAS JA LATHAM J FULLERTON J

29 JUNE 2007 REGINA V SHANE JOSHUA DAVIES JUDGMENT 1 THE COURT: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of a suspended sentence of ten months imposed by his Honour Judge Hughes in the District Court at Penrith on 9 March 2007 pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

2 On the hearing of the appeal on 30 May 2007 the Court decided that although it was satisfied that the Crown had demonstrated error, it resolved to dismiss the appeal in the exercise of its discretion. The following constitutes the reasons for that decision.

3 On 20 November 2006 the respondent entered a plea of guilty in the District Court at Penrith to a single count of malicious wounding contrary to s 35 of the Crimes Act 1900. The offence was committed on 10 December 2005. The maximum penalty is 7 years imprisonment. The Crown accepted the plea of guilty in full satisfaction of an indictment that charged, as an alternative count, the more serious offence of malicious wounding with intent to inflict grievous bodily harm pursuant to s 33 of the Crimes Act. That offence carries a maximum penalty of 25 years imprisonment. The plea was accepted on the day of trial.

4 As at 10 December 2005 the respondent was the subject of a recognisance imposed pursuant to s 9 of the Crimes (Sentencing Procedure) Act. That sentence was passed at the Local Court at Penrith following his conviction for driving with a high range prescribed concentration of alcohol on 21 April 2005. He was also disqualified from driving for a period of two years and fined $2000 in addition to Court costs. Under the terms of the recognisance the respondent was bound by his own undertaking to be of good behaviour for a period of 18 months and to accept the supervision of the Probation and Parole Service. Accordingly, in committing the offence of malicious wounding (the subject of this appeal) he breached that undertaking. At the time of the offending he had been subject to the bond for a period of 8 months. The pre-sentence report notes that the respondent's response to the order for supervision was considered satisfactory and his supervision was terminated in October 2005. He had no other relevant antecedents.

5 The respondent was assessed in the pre-sentence report as eligible for a periodic detention order in accordance with the relevant statutory regime. The Court was also advised that that there were vacancies currently available at Silverwater Periodic Detention Centre. 6 On sentence the Crown submitted that a full time custodial penalty was warranted.

The Facts 7 On the evening of 10 December 2005 the respondent went to the Royal Hotel at Springwood at around 8.30 pm to celebrate Colin Doaks' birthday with a group of friends. The victim was at the hotel socialising with his friends, unconnected with the birthday celebrations. It would appear however, that the victim, Mr Doaks and the respondent went to the same high school although this was clearly many years earlier since at the time of the offending the respondent was 28 years of age.

8 During the course of the evening there was an altercation between the victim and Colin Doaks concerning an incident where it was suggested that the victim had been suspended from high school because of something Mr Doaks said or did. The argument escalated with Mr Doaks offering to "take it outside". It is not clear whether Mr Doaks and the victim exchanged anything other than words but at one point the respondent involved himself by stepping between the two men and he then ultimately joined in the argument. He was at that time holding a glass of beer. Mr Blakely, one of the men the victim was socialising with, attempted to move the respondent away but he resisted. It was after this that the respondent struck the victim causing the beer glass he was holding to shatter on impact.

9 The respondent then left the hotel. The victim followed him and together with Mr Blakely the three went to the police station. En route the respondent said "Now I'm going to jail". At the police station the respondent volunteered responsibility for causing the injury. He said "Look he did not do anything. I did it, he did nothing". He confirmed this under caution a short time later.

10 The victim was admitted to Nepean Hospital Emergency Department and was treated for his injuries. He suffered multiple facial lacerations and bruising concentrated in the area of the left eye. The lacerations required suturing. He was hospitalised for a period of 4 days although this would seem to be for observation in circumstances where he presented with bleeding into the eye itself. The victim has permanent scarring but no residual impairment of vision. A victim impact statement was tendered in the proceedings.

11 On 21 December 2005 the respondent was interviewed by police and again confirmed his responsibility for the injury the victim suffered. He volunteered that he had consumed 15 middies of beer on the night in question, describing himself as moderately to well affected by alcohol. He also told police that during the incident he thought he saw the victim take a stance from which he believed he was going to be struck and that his response in striking first was "a reflex action". He also said that he immediately apologised to the victim.

12 On the basis of these facts the sentencing judge regarded the offence as falling within the lower end of a spectrum of objective seriousness. It would seem that this was based on an assessment of the respondent's conduct which the Crown on sentence did not seek to challenge, namely that the respondent became involved in the altercation between Mr Oakes and the victim initially in an effort to stop the fight between them escalating. In the absence of any submission to the contrary from the Crown who appeared on sentence, we are also satisfied that it was open to the sentencing judge to accept the account the respondent gave to police on 21 December 2006 to the effect that the swing at the victim was a reflex response to a perceived threat and that the use of the glass was not intentional.

13 We are of the view that when assessing the objective seriousness of the offending his Honour did not underestimate the seriousness of the injury that the victim suffered and that he gave appropriate weight, in the balance, to the respondent's conduct in causing the injury.

14 On the appeal the Crown conceded that the view his Honour took of the facts was open to him and, accordingly, that the finding of lower end objective seriousness was not in error in the particular circumstances of this case.

15 Notwithstanding this concession, the Crown maintained that the length of the sentence of imprisonment was manifestly inadequate for other reasons. The Crown also submitted that his Honour erred in his approach to the question of whether the sentence of imprisonment should be suspended pursuant to s 12 of Crimes (Sentencing Procedure) Act. The Plea of Guilty

16 The sentencing judge allowed a two month reduction for the plea of guilty on a twelve month sentence of imprisonment. This translates to a 16 per cent discount. The Crown submits that no more than 10 per cent should have been allowed since the plea was entered on the date fixed for trial. If accepted, such a discount would have lengthened the sentence by only three weeks, not a result that could on its own attract this Court's intervention on a Crown appeal.

17 In making the allowance he did, his Honour referred to the plea as "not very early". We consider that by this observation his Honour was quite obviously limiting himself to the utilitarian value inherent in the plea, having earlier in his remarks referred to the respondent's contrition which he found to be genuine. The evidence disclosed that it was spontaneously expressed within minutes of the assault and was elaborated upon in a clinical interview with Ms Helen Carney, a clinical psychologist, when he said that it is the first thing he thinks about when he wakes and not a day goes by without him wishing the incident had not happened.

18 It would appear that 20 November 2006 was the first occasion when the respondent was offered the opportunity to plead guilty to the less serious of the two counts in full satisfaction of the indictment. While that will not of itself entitle an offender to the full discount (see R v SY & Anor [2003] NSWCCA 291), on the assumption that the statement of facts tendered on the plea accurately reflected what occurred on the evening of 10 December 2005, the Crown case on the more serious charge was highly unlikely to have attracted a verdict of guilty had the matter gone to trial. Since the respondent admitted to police that he was responsible for the injury suffered by the victim, the only issue would have been one of specific intent upon which the Crown bore the onus. We were not informed of any reason why in these circumstances the plea was not offered earlier. While the discretion to reduce a sentence for the utilitarian value inherent in a plea of guilty is not at large, a discount of the stated amount was not outside the sentencing judge's legitimate discretion. There is nothing to suggest that he failed to look at the situation realistically and to assess the utilitarian value of the plea in that light. Accordingly, there is nothing to suggest that in the circumstances the discount was so high as to admit of error. Breach of the s 9 Recognisance in April 2005

19 Both at the District Court and on the appeal the Crown submitted that the breach of the bond imposed in April 2005 was significant for two reasons. First, it was an aggravating feature for sentencing purposes pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, operating to deprive the respondent of the considerable leniency that is inherent in an order suspending a term of imprisonment (see R v Tran [1999] NSWCCA 109 at [15]). Secondly, the offending in each case was in circumstances where the respondent was drinking to excess. By that he was shown to have a dependency on alcohol which was not being addressed. For these reasons, it was submitted by the Crown that the suspended sentence failed to address the need for specific deterrence.

20 While it is true that both offences were alcohol related we do not regard them as relevantly similar so as to attract a finding that the subsequent offending is a matter of severe aggravation as that expression was used in Chaplin v The Queen (2006) 160 A Crim R 85 at 91.

21 At the sentence proceedings the Crown sought to persuade his Honour that the respondent was in fact alcohol dependent and that this condition was the base cause of his drink driving and the related breach of his undertaking by the malicious wounding. It was implicit in this submission, a submission which was maintained on appeal, that to extend to the respondent the leniency of a suspended sentence was to send the respondent the wrong message and that it would fail entirely to encourage him to address his drinking habits.

22 In addition to the pre-sentence report which dealt with the issue of alcohol, the sentencing judge had available to him the report from a Clinical Psychologist and a letter from the respondent's mother each of which gave, from different perspectives, some insights into the respondent's drinking habits and his attitude to them. It was on the basis of this evidence that the sentencing judge rejected the submission that the respondent was either alcohol dependent or that he had a propensity for violent or unrestrained behaviour when under its influence.

23 Ms Carney reported that while the respondent was a regular drinker - 4 or 5 glasses of beer on most occasions - he drinks mainly at home or with friends when fishing or camping and that he does not regard his drinking as problematic in the sense that it impacts adversely on his health or his work. Ms Carney regarded the respondent's conduct at the Springwood Hotel in December 2005 when stepping between two men fighting, as influenced by the alcohol he had consumed in that it would have given him the courage to act in circumstances where he usually does not act precipitously or openly expresses his feelings. She offered this opinion in the context of a clinical interview and psychological testing which revealed the respondent was suffering from underlying despair and insecurity, likely linked to the death of his father and two brothers (one to suicide), and the impact that this has had on his family life. In Ms Carney's view he suffered from depression and his drinking was likely to be an attempt at self-medication. She was of the view that if he was not in denial about these aspects of his emotional life, he was largely unaware of them.

24 His mother confirmed that the respondent did not drink in hotels and, in addition, that she had never seen her son violent when under the influence of alcohol in her home or her presence. She corroborated the emotional pressures to which the respondent had been subject as a young man and the impact on him of his father's and brothers' deaths as the youngest of seven children.

25 While opinions might differ as to the weight of this evidence in sentence proceedings where a serious injury was a direct consequence of excessive drinking, the respondent's attitude to drinking and drinking patterns were put in issue in the proceedings by the Crown and, however indulgent his Honour's views might be as to the amount and regularity of the respondent's alcohol consumption, the findings he made were open to him on the evidence. 26 The relevant principles to be applied where issues of intoxication arise in sentence proceedings were stated by Hunt J in Coleman v R (1990) 47 A Crim R 306 at 327 (Finlay and Allen JJ agreeing): "The degree of deliberation shown by an offender is usually a matter to be taken into account; (such) intoxication would therefore be relevant in determining the degree of deliberation involved in the offender's breach of the law. In some circumstances, it may aggravate the crime because of the recklessness with which the offender became intoxicated; in other circumstances, it may mitigate the crime because the offender has by reason of that intoxication acted out of character."

27 It would appear that the sentencing judge was satisfied on the basis of the evidence before him that it was both the fact and the degree of intoxication that caused the respondent to act out of character. Even if it was not perhaps uncharacteristic for this offender to be subject to the influence of alcohol given the regularity with which he consumes it, his Honour was entitled to the view that the respondent's overreaction or reflex action to the perceived threat was induced by the alcohol he had consumed and, whilst the intoxication might not of itself be used as a mitigating factor, neither was it an aggravating factor in the relevant sense. The Length of the Sentence

28 We are not persuaded that a term of imprisonment for ten months was the result of an error in the assessment of the competing considerations of objective seriousness or subjective considerations, or that matters of aggravation were not given their proper weighting such as to manifest error. 29 In R v Baker [2000] NSWCCA 85, Spigelman CJ said, "Questions of weight in the exercise of discretion are matters for the first instance judge. The circumstances in which matters of weight will justify intervention by an appellate court are narrowly confined."

30 The Crown submits that his Honour's approach to imposition of the suspended sentence was vitiated by error of such a kind that a more lenient sentence was imposed than was warranted. It is submitted that this Court should intervene and impose a more severe sentence. In appropriate acknowledgement that this is a Crown appeal, we do not understand the Crown to submit that we should sentence the respondent to serve any sentence in full time custody. Rather, it is submitted that an order for periodic detention should be made.

31 In R v Zamagias [2002] NSWCCA 17 Howie J, with whom Hodgson JA and Levine J agreed, stipulated the steps to be taken by a Court when sentencing an offender to a term of imprisonment and then determining to suspend its execution pursuant to s 12 of the Crimes (Sentencing Procedure) Act. First, the Court is to determine whether a full-time custodial sentence is called for in accordance with s 5 of the Crimes (Sentencing Procedure) Act. Next, the Court must determine the length of any such sentence without regard to how the sentence will be served and only then to determine how the sentence should be served having regard to the statutory alternatives to full time custody and their availability. As Howie J made explicit in Zamagias: "…the appropriateness of an alternative to full-time custody will depend upon a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment". 32 While a failure to expressly articulate the taking of these steps would not necessarily compel the conclusion that there was a failure to properly carry out the sentencing exercise, the process of reasoning should reveal an appreciation of the gradated alternatives to full time custody and why a suspended sentence, as the most lenient option, is the appropriate order in the particular circumstances of the case. In the absence of reasoning of this kind the sentencing exercise is susceptible to challenge and may, as in this case, give rise to a Crown appeal.

33 The sentencing judge appears to have determined that a suspended sentence was the resolution of the sentencing process without making reference to the prescribed steps at all and without making patent his reasoning to that conclusion. Importantly, he has failed altogether to expressly consider whether an order that the sentence be served by way of periodic detention might be a more appropriate penalty or, in the alternative, why it was not. Error and the Residual Discretion

34 While we agree that his Honour's approach to considering the alternatives to full time custody was contrary to law, we are not persuaded that a suspended sentence was outside the range of his sentencing discretion if the discretion was properly exercised (R v Wall [2002] NSWCCA 42 per Wood CJ at CL [70]). This is so, particularly having regard to the finding of low objective criminality, the strong subjective case mounted on the respondent's behalf and the fact that the sentencing judge was of the firm view that the likelihood of re-offending was low. Accordingly, whilst specific error has been established, we exercise our discretion not to intervene. 35 It was for the foregoing reasons that the Court dismissed the Crown's appeal.

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