R v Farrawell-Smith [2010] NSWCCA 144 | Case summary

WEDNESDAY 14 JULY 2010 REGINA v Peter Robert FARRAWELL-SMITH Judgment 1 McCLELLAN CJ at CL: I agree with Barr AJ. 2 HISLOP J: I agree with Barr AJ. 3 BARR AJ: This is a Crown appeal against what is said to be the inadequacy of sentences imposed in the District Court on the respondent, Peter Robert Farrawell-Smith. The respondent pleaded guilty in the District Court to two charges, namely that on or about 13 September 2008 at Appin while in the company of a person referred to as JV he recklessly caused grievous bodily harm to Todd Mercer and that at the same time and place while in the company of the same person, he recklessly wounded Brent Mercer. 4 The first count was laid under s 35(1) Crimes Act 1900. The maximum applicable sentence was imprisonment for 14 years. The second count was laid under s 35(3) Crimes Act. The maximum applicable sentence was imprisonment for 10 years. 5 On the first count Judge Sides of Queen's Counsel sentenced the respondent to imprisonment for 20 months, suspended under s 12 Crimes (Sentencing Procedure) Act 1999. On the second count his Honour sentenced the respondent to 12 months' imprisonment, suspended under s 12 Crimes (Sentencing Procedure) Act. 6 The facts found by his Honour were as follows: At about 11pm on 12 September 2008 the victims, 17-year-old twins, were at a gathering drinking with friends around a fire at Appin. A fight erupted between some of those present including Richard O'Donnell and Clint Swelt. The fire broke up after about 10 minutes and some people left the gathering in a car, but Richard O'Donnell walked away. At the time he had pins in his leg because of a previous fracture. He rang the offender asking for help because he had been jumped and asked him to meet him at the Appin shops. Matt Crossan also telephoned the offender saying: "Are youse coming, hurry up". When Richard O'Donnell reached the service station in Appin Clint Swelt was already there. They started fighting again. Whilst they were fighting Clayton Pallister arrived, walked Clint Swelt away to his car and drove him off. After waiting about 25 minutes he drove Clint Swelt home. Meanwhile Richard O'Donnell stayed at the service station. When Natalie Hayes arrived he told her he was going to kill Clint. When the offender arrived at the service station Richard O'Donnell and Matt Crossan were "going mental" saying that they were going to get them back. When the offender said that he would help, Richard O'Donnell said: "Let's go, I want to get them back and bash them". With a number of others the offender travelled in the utility driven by Richard Ringwood to where the gathering was at the fire. When they got there the offender saw JV take a shovel from the rear of the utility. He then ran with JV, following Matt Crossan, intending to help Richard O'Donnell fight. By this time it was about midnight. There were still about 7 to 10 people around the fire including the two victims. Matt Crossan kept calling: "Clint, where's Clint". Someone in the group said: "I'm going to put youse to sleep". JV approached the victim Todd Mercer who was sitting down and swung the shovel like a baseball bat making contact with this victim's head rendering him unconscious. When his twin brother stood up JV swung the shovel at him but missed because Brent Mercer stepped backwards. However JV's second swing with the shovel made contact with the left side of this victim's head causing him to fall over. Once on the ground he felt another blow to his back. When he looked up he saw JV standing over him with the shovel. As Brent Mercer kicked to get away JV struck him on the shins and around the legs. Brent Mercer then got to his feet and ran into the bushes with JV in pursuit. However Brent Mercer was able to escape and hide until the offenders left. When he emerged he found his brother bleeding from two cuts, one under the right eye and the other to the right eyebrow. Both victims received treatment after being taken to the Campbelltown Hospital. The victim Todd Mercer suffered bruising and swelling around the right eye and a graze to his right cheek. He had a deep laceration about 5 centimetres by 1.5 centimetres to his right cheek and another one about 3 centimetres long to his right eyebrow. These lacerations required 12 stitches. He also suffered a fractured eye socket. The other victim, Brent Mercer, suffered a deep 4 centimetre long laceration to his right leg. It was so deep that fatty tissue was exposed and bulging from the wound. It required 7 sutures. He also suffered abrasions to his back and swelling to the back of his head. After the assaults the offender told Jarred Andrews that: "We bashed them". Police arrested the offender on 16 September 2008 and, during a subsequent interview on that day, he admitted going to the group at the fire intending to help Richard O'Donnell fight and having seen JV take the shovel with him. He also said Richard O'Donnell was armed with a stick. 7 His Honour made the following findings about the personal circumstances of the respondent: The offender recently turned 25. His parents separated when the offender was about 4 years old and his mother remarried some time later. He had no contact with his natural father after his parent's separation. His stepfather was violent towards the offender and his mother and the offender was exposed to his stepfather's illegal drug use. After completing Year 11 at school the offender entered the workforce and currently works as a labourer. He has held this position for 8 or 9 months. The offender has been in a relationship for about 3 years. They have an 8-month-old daughter. He is the sole provider for the family and they live with his partner's mother. The offender started abusing liquor when he was 18 years old. The Court accepts that he has not used liquor since his arrest for these offences. The offender cannot claim the benefit of prior good character. On 28 July 2004 fines were imposed upon him for driving never having had a licence. On 11 August 2004 he was fined for a similar offence. On 10 August 2005 a 2-year bond was imposed for driving never having had a licence and drive whilst disqualified. On 15 March 2006 he was fined for offensive language and on 6 December 2007 a fine was imposed upon him for assaulting police. On 1 April 2008 he entered a 2-year bond for assault. It is an aggravating feature that his bond was current at the time of these offences. At the same time he had been fined for damaging property. On 27 August 2008 the offender was convicted in his absence for damaging property. It is an aggravating feature that he committed these offences having failed to appear on 27 August. On 29 October 2008 he was placed on an 18-month bond for that offence of damaging property and it was a condition of the bond that he submit to supervision by Probation and Parole. At the same time he was fined for failing to appear. The Court notes other occasions when he was convicted in his absence but it is not necessary to detail those. His offences that postdate the offences before the Court are relevant only to rehabilitation. On 13 October 2008 he was placed on an 18-month bond for damaging property. He had been charged with this matter on 20 September 2008. He could not remember the date it was committed but the Court has proceeded on the basis that he postdates the offences before it. On 24 August 2009 he was ordered to perform 100 hours community service for driving never having been licensed. At the same time fines were imposed for speeding and not stopping when directed. The Court noted the reference from Joanne Walker dated 1 December 2009 that talks about the offender being a loyal person who would go to the aid of a friend in a crisis and is a follower not a leader. That reference also mentions the offender as a polite person and a quiet person who provides for his family. However, in considering the weight to be attached to it the Court noted that it makes no mention of the offender's criminal history. 8 His Honour also found that the respondent had cooperated with police by making admissions and agreeing that other nominated individuals were also involved. He agreed to give evidence against his co-offender, JV. A sealed envelope was tendered containing a document giving details about such matters. His Honour found that the respondent had broken contact with Richard O'Donnell and others involved in the offences and had addressed his alcohol abuse problem. His Honour described the respondent's compliance with the provisions of a bond as "adequate". His Honour found that the respondent's assistance to the police was timely. 9 His Honour heard evidence from the applicant and accepted that shortly after he had spoken to the police he had received a visit from someone on behalf of JV. There had been no violence and no threat, but the visit had had a significant effect upon him. He had stopped going out much, he feared for his safety and, if sent to gaol, would ask to be placed on strict protection. 10 His Honour found that he had accepted responsibility for the offences and had acknowledged the harm caused to the victims. His Honour was satisfied that he was remorseful. He considered the respondent's prospects of rehabilitation and of not re-offending to be very good. His Honour noted that although the pleas of guilty had not come forth until the arraignment in the District Court, the respondent had offered in the Local Court to plead guilty to two counts under s 35(3), and that the offer had been refused by the Crown. His Honour therefore determined that although the discount for the utilitarian value of the plea of guilty on the first count should be only 15 per cent, that on the second should be 25 per cent. 11 Having noted the pleas of guilty, the respondent's remorse, his good prospects of rehabilitation, which had already commenced, and his willingness to assist the authorities, including giving evidence in court, his Honour allowed a combined discount of about 40 per cent on the first count and 50 per cent on the second. His Honour ascribed 15 per cent to the value of future assistance. 12 The first ground of appeal complains that the combined discount for the pleas of guilty and assistance was excessive. It was submitted that in R v Sukkar [2006] NSWCCA 92 Howie J, with whom McClellan CJ at CL agreed, said at [5] that discounts for a plea and assistance of more than 40 per cent should very exceptionally if at all be granted in a case where there is no evidence that the offender will spend the sentence or a substantial part of it in more onerous conditions than the general gaol population. In the same case Latham J said that generally speaking a discount of 50 per cent is regarded as appropriate for assistance of a very high order [54]. 13 It was submitted that while it was open to his Honour to find that the respondent had genuine fears for his safety and would ask to be placed on strict non-association protection if sentenced to full time imprisonment, there was no evidence that such a request would be granted or that the impact of his conditions in custody would be as his Honour found they would be. Part of the judgment of Howie J in R v Mostyn [2004] NSWCCA 97 was quoted, discussing the difficulty created when a sentencing court assumes without evidence that placement on protection necessarily makes the service of a sentence more onerous. Reference was also made to R v Way (2004) 60 NSWLR 168 at [177] and to the existence of special arrangements that now exists for certain classes of prisoners. 14 It was submitted that evidence as to the respondent's likely conditions of custody was absent. Moreover, his Honour did not find that the assistance was of a high order, nor was there anything exceptional about the case. In the circumstances the discount rates of 40 per cent and 50 per cent were excessive. It was submitted that his Honour did not refer to the requirement of s 23(3) Crimes (Sentencing Procedure) Act that the sentence be not unduly disproportionate to the nature and circumstances of the offence. It was submitted that as a result the sentences were unduly disproportionate even before his Honour decided to suspend them. 15 It was submitted on behalf of the respondent that it was open to his Honour to take into account the respondent's genuine fears, which alone would make his incarceration more onerous. Further, that it was open to his Honour to infer that the respondent, a young man serving his first custodial sentence, would be granted non-association protection. So there would be hardship and limitation of the courses the respondent could undertake. However, I think that that submission was made in the face of what this Court said in Sukkar and Mostyn. 16 In my opinion his Honour erred in assuming, without evidence, that if sentenced to serve full time custody, the respondent's sentence would be significantly more onerous. In my opinion this ground of appeal should succeed. 17 The second ground asserts that his Honour erred in taking into account the respondent's assistance when deciding to suspend the sentences. 18 Having concluded that the appropriate sentences would be of 20 months and 12 months respectively, his Honour continued - Totality calls for some partial accumulation to the extent of four months to reflect the fact that there were two separate victims and the injuries were inflicted by separate criminal acts. In all the circumstances, particularly his assistance to the police and the risk of imprisonment bringing undone the rehabilitation that he has achieved to date, the Court concluded that it is appropriate to suspend the sentences. 19 It was submitted that since his Honour had already taken account of assistance given and promised when determining the terms of the sentences, taking such matters into account in deciding to suspend the sentences amounted to double counting. Reference was made to R v S (2000) 111 A Crim R 225 at [19] where the Court cautioned against discounting a sentence for assistance to the authorities and separately discounting for the onerous nature of strict protection which, as was pointed out, is the direct result of an offer of assistance. 20 However, in Dinsdale v The Queen [2000] 202 CLR 321 the justices of the High Court of Australia held that the discretion to impose a term of suspended imprisonment required a consideration of all the circumstances of the case, not only the rehabilitation of the offender. Kirby J said at [85] - This necessitates the attribution of "double weight" to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment. 21 In R v JCE (2001) 129 A Crim R 18 Fitzgerald JA, with whom Whealy and Howie JJ agreed, said, at [17] - If the court is satisfied that no penalty other than imprisonment is appropriate, it must determine what term of imprisonment is appropriate. Other questions then arise. By subs 12(1) of the Act, one of the questions to be considered when the appropriate term of imprisonment is not more than two years, is whether execution of the sentence should be suspended. When that question falls for consideration, the same considerations as were relevant in determining whether a sentence of imprisonment was called for and if so what term of imprisonment was appropriate, again fall for consideration in determining whether execution of the sentence should be suspended. Broadly stated, as Kirby J pointed out in Dinsdale, the material considerations are the objective features of the offence and the personal considerations applicable to the offender including considerations of rehabilitation and mercy. 22 Reference may also be made to R v Zamagias [2002] NSWCCA 17 at [26]-[28]. 23 This ground of appeal has not been made good. 24 The remaining grounds may be considered together. They assert that his Honour gave undue weight to the rehabilitation of the respondent, paid insufficient regard to the need for deterrence and the other purposes of punishment, failed adequately to determine where each offence lay in the range of seriousness and imposed a sentence that was manifestly inadequate. 25 After committing the offences under consideration, and while on bail and subject to a good behaviour bond, the respondent committed two further offences, apparently maliciously causing damage to a fence or other part of a house. Even so, he received a very favourable report from an officer of the Probation and Parole Service in a pre-sentence report that was put before his Honour. The report dealt with the respondent's early exposure to alcohol and drugs with consequent violent behaviour. It was reported that he and his partner had an 8-month old daughter and had developed a positive relationship and stable home life. He expressed remorse which the reporter accepted as genuine. The reporter stated that since the subject offences and the birth of this child, the respondent appeared to have significantly reduced his alcohol consumption and had gained suitable employment. He was managing his personal responsibilities more effectively. His anger had reportedly reduced as a result of this change in lifestyle, I infer as a result of his separating himself from his former colleagues. 26 It was submitted that his Honour failed to mention that the subsequent offences had been committed whilst on bail and on a bond and reference was made to cases explaining why courts take a serious view of the commission of offences during a period of conditional liberty. It was submitted that while rehabilitation was important, and the respondent was entitled to credit for what he had achieved, general deterrence and the other purposes of punishment should prevail in the present case. Reference was made to the objective seriousness of the facts of the present case, to the fact that the respondent voluntarily joined in a fight which was not his own and pointed out that his Honour, although he referred to s 3A Crimes (Sentencing Procedure) Act, made no particular mention of the need for deterrence or the other purposes of punishment other than rehabilitation. So, it was submitted, his Honour had allowed rehabilitation to play a dominant role in the sentencing process. 27 The next complaint was that although his Honour indicated that the offences fell below the mid-range of seriousness, he did not indicate by how much they did so. Reference was made to a number of authorities including R v Woods [2009] NSWCCA 55, Smith v R [2009] NSWCCA 17, R v Knight [2010] NSWCCA 51, R v Biuvanua [2007] NSWCCA 283, R v McEvoy [2010] NSWCCA 110. 28 The final submission was that the sentences were manifestly inadequate. It was submitted that the offences were premeditated, that the respondent, though he did not personally inflict the wounds, clearly associated himself with what was happening and afterwards boasted that "we bashed them". Reference was made to the limits that must be placed on differentiating culpability among co-offenders in a joint criminal enterprise. 29 It seems to me that there is substance in a number of these complaints. The real test of the resulting sentences, it seems to me, is made by comparing the objective seriousness of the offences with the maximum applicable sentences of 14 and 10 years respectively and the standard non-parole periods of 5 and 4 years respectively. In my opinion the sentences imposed by his Honour fell short of what was required to reflect the objective seriousness of the offences and it may be, as was submitted, that his Honour placed too much emphasis on the need for rehabilitation and lost sight of the need for deterrent sentences to be imposed. 30 Having found error, the Court must decide whether to intervene. 31 The subject offences were committed on 12 September 2008. His Honour imposed sentence some 17 months later. A further 4 months have since elapsed. 32 The Court received evidence from the respondent and from his partner, Candice Archer. The evidence was received by affidavit and was not made the subject of challenge. The position is now as follows. Pursuant to his Honour's orders, the respondent made a promise to carry out community service work. He has for the most part attended, unless excused by medical certificate, on the occasions required. Only five absences are uncertified this year. The respondent has been suffering bleeding from the bowel and that has interfered with his progress. I infer that he must have had to attend appointments for tests and treatment. He has maintained his permanent part-time employment with the employer for whom he was working when sentenced. He usually works three days each week. He has attended conferences at the Office of the Director of Public Prosecutions and has attended court a number of times in order to give evidence in accordance with his undertaking. He intends to see that undertaking through. 33 According to Ms Archer, the respondent quit drinking immediately after these offences and has not had a drink since. She says that he is not the same man as before the offences. He does not party with large group of friends. He is kinder and more mature. They have a daughter one year old and he shares the tasks of caring for her and helps out with housework. By doing the work he does he is providing financially for the household. 34 On Wednesday 2 June the respondent gave evidence against his co-accused. Two days later he was told by friends that the co-accused had said that he and his friends intended to come looking for him. Because of that threat, he and his partner spent the weekend at another house, but they will not be allowed to stay for long because the landlord objects. 35 The respondent and Ms Archer are hoping to move to Queensland to live with or near her father. He has said that he can help the respondent obtain work on fishing trawlers. The respondent hopes to obtain the approval of the Probation and Parole Service to make that move. 36 The respondent confirms that he has cut off his relations with his former associates for good. 37 It seems to me that the change that has taken place in the respondent, his attitude to himself, to his new family and to others, is quite remarkable. The promise of rehabilitation that his Honour appreciated is being fulfilled. Although I think that the respondent was fortunate to have been given the chance he has, it is commendable that he has taken it to heart. It seems to me that a young man who led a dissolute life, without much regard for himself or others, has undergone a genuine demonstrable change. In my opinion, he should be allowed to continue to work through this process of rehabilitation. I would be reluctant for these reasons to interfere in the process that has resulted from the sentences appealed from. 38 I would in the exercise of my discretion dismiss the appeal. **********

R v Farrawell-Smith

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Judgment (11 paragraphs)

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Cases Cited (9)

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