R v Ferrer

House v R (1936) 55 CLR 499 Markarian v The Queen (2005) 228 CLR 357 Matzick v R R v Baker [2000] NSWCCA 85 CASES CITED : R v Chisari [2006] NSWCCA 19 R v Deng [2007] NSWCCA 216 R v Jenkins [2006] NSWCCA 412 R v Knight [2007] NSWCCA 283 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168

PARTIES: Regina Arthur Ferrer

COUNSEL: P Ingram (Crown) H Dhanji (Respondent)

SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions S O'Connor - Legal Aid Commission

• 11 - IN THE COURT OF CRIMINAL APPEAL CCA 2008/47

BELL JA JOHNSON J McCALLUM J

19 May 2008 Regina v Arthur Ferrer Judgment 1 BELL JA: I agree with McCallum J. 2 JOHNSON J: I agree with McCallum J. 3 McCALLUM J: This is an appeal brought by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act 1912 against the sentence pronounced in the District Court at Campbelltown on 4 December 2007 after the respondent pleaded guilty to malicious wounding with intent to do grievous bodily harm under s 33 of the Crimes Act 1900 (as in force at the time of the offence, 17 June 2006). 4 The respondent was arraigned on 9 February 2007 on an indictment containing the count under s 33 and an alternative count of malicious wounding under s 35(1)(a) of the Crimes Act. He pleaded not guilty to both counts on that date. On 7 May 2007, which is the date on which he was due to stand trial, the respondent entered the plea of guilty to the count under s 33 and no plea was sought in respect of the alternative count.

5 After a contested hearing as to the circumstances in which the offence occurred, the learned judge sentenced the respondent to a total term of imprisonment of four years with a non-parole period of two years and a balance of term of two years. The sentence dated from 20 June 2006, the date on which the respondent was arrested. The judge ordered the respondent's release to parole on 19 June 2008. The Facts

6 Until his attack on the victim, the respondent and the victim were friends. They used to see each other every day. They attended the same methadone clinic and the victim was a regular visitor to the respondent's house, where they would watch movies and share meals together. The day before the attack, the respondent found that his Gameboy machine and a game were missing from his home and formed the view that the victim had stolen them. 7 On the day of the offence, the victim and the respondent met at the methadone clinic. The respondent had been driven there by a friend. The victim, who had lost his licence, had travelled to the clinic by train and bicycle. 8 After they had received their doses of methadone, the respondent invited the victim into the car and, as they drove away from the clinic, confronted him with his suspicions as to the theft of the Gameboy. 9 When interviewed by police, the respondent said that this exchange made him angry because the victim kept changing his story, one minute denying the theft and the next minute agreeing to return the stolen items. The respondent directed the driver to pull over into a block of units where he invited the victim to step out of the car to have a fight. The victim refused and stayed in the car. The respondent then returned to the car to confront the victim in the back seat. 10 The events that followed were in dispute as between the Crown and the respondent at the sentence hearing. There was no dispute that the respondent stabbed the victim with a pair of scissors once in the abdomen, four times in the back and once behind the left ear. However, the victim said that the scissors were produced by the respondent, whereas the respondent said that it was the victim who produced the scissors and struck the respondent's hand with them, taking a chunk of flesh out of his index finger. The respondent said he then wrested the scissors from the victim, after a struggle. According to the respondent's version, the victim's attack on him with the scissors made him angry and it was then that he struck the victim with the scissors.

11 In respect of the disputed issue as to the scissors, the sentencing judge found that he could not reject the possibility that it was the victim who produced them, but observed that the context of those events was the respondent's aggression. 12 The events that followed were largely not disputed. After the stabbing, the men drove off. The respondent's finger was bleeding profusely and he asked the driver to pull over so that he could wash his hands. When he got out of the car, the victim took his chance and ran away. The respondent chased him for a short distance but soon gave up and returned to the car. 13 Although the scissors were described as blunt-nosed, one of the stab wounds punctured the victim's lung and caused it to collapse. The victim was admitted to hospital where a wound to the abdomen was explored by laparoscopy, revealing no further internal injury. The punctured lung required a chest drain. The victim was discharged from hospital after five days. 14 The respondent was arrested three days after the incident and participated in an ERISP interview in which he made a number of admissions as to his participation in the attack. However, he denied stabbing the victim in the abdomen and said that he did not think that he had stabbed the victim four times in the back. He agreed that he punched the victim while holding the scissors in his hand and that it was possible that he may have struck him with the scissors. In his sworn evidence in the sentence hearing, the respondent acknowledged that he had stabbed the victim to the back and the back of the head with the intention of doing serious injury to him. He said that he did so because he was angry at what the victim had done to him with the scissors.

Respondent's subjective circumstances 15 The respondent was born in the Philippines on 22 March 1982. He was twenty-four at the time of the offence. He was the youngest of five siblings. His family moved to Australia when he was five. His parents both worked long hours and his daily care fell largely to his siblings. The evidence at the sentence hearing disclosed an unhappy event in the respondent's life when, at the age of twelve, he was told by his mother to pack his things and leave the family home. His mother regretted doing so and she and the respondent's father located him and, after a week or two, brought him home, but it was an event which appears to have had a lasting impact on him. After that time, he developed a drug addiction, commencing to use heroin and amphetamines when he was about thirteen and, later, cannabis and alcohol. 16 A psychological assessment concluded that he suffers from depression at clinically significant levels and that his untreated depression underpinned his drug use and his relapses into heroin dependence following several attempts at detoxification. However, the sentencing judge did not accept the psychologist's opinion that the respondent's capacity to make reasoned judgments was materially impaired because of depression when he stabbed the victim. His Honour was inclined to attribute the loss of capacity to make reasoned judgments to a loss of temper. 17 The respondent had a criminal history consisting largely of convictions for possession of prohibited drugs and offences of dishonesty. He had no prior convictions for offences of violence but had one prior conviction for having custody of a knife in a public place. 18 He had served a previous sentence of imprisonment for supply of a prohibited drug. He spent three months in prison for that offence.

Remarks on sentence 19 The sentencing judge noted that the offence carried a maximum penalty of twenty-five years imprisonment and a standard non-parole period of seven years under the Crimes (Sentencing Procedure) Act 1999. In respect of the plea of guilty on the first day of the trial, noting that the matter did not involve any great deal of complexity, his Honour indicated that he had reduced the sentence by ten percent to reflect the utility of the plea. His Honour accepted that the respondent had expressed remorse but regarded it as belated, since the respondent showed no concern for the welfare of the victim after the offence and was concerned only with dealing with the blood on his hands. 20 In his remarks on sentence, the judge reviewed the facts in considerable detail and made findings in respect of the matters in dispute. As noted above, his Honour held that the Court could not exclude the possibility that it was the victim who had the scissors and produced them during the attack. However, his Honour noted that this was in the context of the offender being the aggressor. His Honour proceeded on the basis that the intention formed by the respondent to use the scissors to inflict serious injury was formed spontaneously but in the context of the respondent's desire to avenge the loss of his property by means of violence. 21 The sentencing judge also addressed the subjective circumstances in careful detail, noting the fact that the respondent was raised by his siblings, that he had suffered some isolation or victimisation during his childhood due to his cultural background, that he had become difficult and had been asked by his mother to leave the family home and that he had commenced to use heroin and amphetamines at around that time. His Honour gave careful consideration to some inconsistencies in the evidence as to when it was that the respondent commenced to abuse those drugs and found that it was when he was about thirteen. His Honour also gave close consideration to the psychological evidence and concluded that the respondent was not depressed at the time of the offence. 22 The sentencing judge noted that the respondent could not claim the benefit of prior good character and reviewed the prior convictions in detail. His Honour noted that the respondent has remained drug free whilst in custody and that he is described as a diligent worker and a trustworthy and pleasant inmate. 23 Assessing the objective seriousness of the offence, his Honour repeated the findings as to who it was that produced the scissors. He noted that the victim was in a vulnerable position, being in the back of the car at the time of the attack. He noted that the offence was not premeditated but a spontaneous act of violence and that, although the attack was savage, the respondent had ended it of his own volition. His Honour noted the serious consequences of the attack for the victim. 24 Having regard to all of those matters, his Honour characterised the seriousness of the offence as falling "somewhat below the mid-range". Having regard to that finding and the plea of guilty, his Honour declined to fix the standard non-parole period but expressly adverted to its serving as a benchmark in accordance with the principles in R v Way (2004) 60 NSWLR 168. 25 His Honour concluded that nothing other than a custodial sentence of four years was appropriate. His Honour found that, owing to an entrenched drug problem and a pre-disposition to impulsivity, impatience and short temper, the respondent would require an extended period of supervision on parole and, on that basis, found special circumstances. His Honour fixed a non-parole period of two years. Grounds of appeal and submissions

26 The only ground of appeal relied on by the Crown in the Notice of Appeal is that the sentence is manifestly inadequate. However, in written submissions and at the hearing, the Crown advanced an argument that the sentence entailed specific error in respect of the assessment of the seriousness of the offence. The Crown contended that the learned sentencing judge erred by failing to assess the offence as being in the middle of the range of objective seriousness for such offences and that it was not open to the judge to assess the present offence as being "somewhat below the mid-range". This was referred to in the Crown's submissions as the first contention. 27 In the alternative and assuming the rejection of the first contention, the Crown contended that the total term imposed did not reflect the sentencing judge's assessment of the objective seriousness of the offence (the second contention) and that the non-parole period was manifestly inadequate (the third contention). 28 As to the first contention, the Crown did not seek to impugn the findings of fact made by the sentencing judge, but submitted that those findings required the conclusion that the objective seriousness of the offence was at the middle of the range. It was frankly acknowledged by the Crown that this was a bold contention. 29 In respect of the second contention, the Crown in written submissions provided a mathematical analysis of the term imposed as a percentage of the prescribed maximum penalty and an analysis of the notional starting point sentence (taking into account the ten percent discount allowed for the utilitarian value of the plea) as a percentage of the notional starting point sentence indicated by the standard non-parole period, assuming no adjustment for special circumstances. It was not suggested that this was an exercise that the sentencing judge should or even could properly have embarked upon. Nonetheless, it was submitted that the results of such mathematical analysis disclosed that the sentence was so far below that apposite to the offence as to disclose appealable error. The submissions did not identify the sentence contended to be apposite to the offence. 30 The third contention, that the non-parole period was manifestly inadequate, was sought to be sustained by the same mathematical analysis, which the Crown submitted could be applied mutatis mutandis to the non-parole period of two years imposed in the present case compared with the statutory standard non-parole period of seven years. 31 Mr Dhanji, who appeared for the respondent, submitted that the assessment of the offence as being somewhat below the middle of the range of objective seriousness was clearly open. He reminded the Court of the need to be cautious in interfering with a sentencing judge's assessment of the level of objective seriousness of an offence, a process of characterisation that has been noted to be classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts: R v Deng [2007] NSWCCA 216 at [69]. 32 Mr Dhanji noted that, while the injuries to the victim were serious, that is necessarily the case in any offence involving grievous bodily harm. He noted the findings of the learned sentencing judge that the offence was not pre-meditated; that sentencing should proceed on the basis that the Court could not reject the possibility that the scissors were produced by the victim, albeit in response to the respondent's aggression; and the fact that the respondent voluntarily ceased the attack. 33 In response to the Crown's second and third contentions that the total term and non-parole period imposed did not reflect his Honour's finding as to the objective seriousness of the offence, Mr Dhanji submitted that the Crown's complaint was in substance not one of specific error but, rather, a complaint of manifest inadequacy. Against the recognised constraints on intervention by an appellate Court in such a case, Mr Dhanji conceded that the sentence imposed was lenient but submitted that it was not manifestly inadequate.

34 Mr Dhanji submitted that the mathematical exercise undertaken by the Crown in the written submissions involves some danger, particularly in a case assessed as being below the mid-range, where it is possible to envisage a broad range of appropriate sentences. He submitted that, applying traditional principles, one could see that the learned sentencing judge did not commit the error identified in the judgment of Howie J in R v Knight [2007] NSWCCA 283 at [46] of failing to identify each factor taken into account in deciding to depart from the standard non-parole period. 35 Mr Dhanji noted that, in the present case, the learned sentencing judge referred to a number of factors. He found that the offence was not pre-meditated but a spontaneous act; he sentenced the respondent on the basis that it was the victim who produced the scissors albeit in the context of the respondent's aggression; and, while noting the seriousness of the injuries inflicted on the victim, his Honour noted that the respondent ended the attack of his own volition. 36 Finally, Mr Dhanji submitted that, as a further check, the Court could compare the present case with the decisions of this Court in R v Jenkins [2006] NSWCCA 412; R v Chisari [2006] NSWCCA 19; Matzick v R [2007] NSWCCA 92 and R v Deng [2007] NSWCCA 216. 37 Although allegedly comparable decisions may be of limited use, the decisions referred to by Mr Dhanji and addressed by him in detail in oral submissions do provide some support for his submission that the present sentence is not so lenient as to fall outside the permissible range.

No specific error 38 In my view, the Crown has not identified any error in the approach taken by the learned sentencing judge. The principles governing this Court in the determination of appeals brought by the Crown are well settled and need not be restated. They are set out in the judgment of Wood CJ at CL in R v Wall [2002] NSWCCA 42; see also Markarian v The Queen (2005) 228 CLR 357 at [25] to [27]. 39 In R v Baker [2000] NSWCCA 85, Spigelman CJ at [19] reiterated the proposition that successful Crown appeals should be rare and stated that this is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred. 40 In the present case, the conclusion that the seriousness of the offence was somewhat below the mid-range was plainly open in the exercise of judicial discretion. It was sustained by careful reasoning and by findings of fact that were not challenged in this Court. As noted above, they included the finding that the Court could not reject the possibility that it was the victim who produced the scissors, the finding that the offence was not pre-meditated and the intention to inflict injury on the victim was formed spontaneously and the finding that the respondent ended the attack of his own volition. 41 In my view, on the strength of those findings, the characterisation of the objective seriousness of the offence on the strength of which sentence was pronounced was open. No error of the kind described in House v R (1936) 55 CLR 499 has been identified.

No manifest inadequacy 42 Further, in my view, although the sentence was lenient, the result embodied in the sentence pronounced was not unreasonable or plainly unjust. I accept Mr Dhanji's submissions as to the danger inherent in applying a mathematical analysis to a sentence imposed in respect of an offence below the middle of the range of seriousness by reference to the maximum penalty or the standard non-parole period prescribed in respect of that offence. The expression of a non-parole period as a percentage of the standard period nominated by express legislative provision is in my view particularly unhelpful. It ignores the complexity of the process by which, in the exercise of a judicial discretion imprecisely guided by statute, a sentencing judge is required to translate community and legal values into a number of years, months and days: cf Markarian per McHugh J at [73]. The outcome of that process cannot, in my opinion, be assessed by an appellate Court as being either manifestly inadequate or manifestly excessive according to the application of a deterministic algorithm. 43 Taking into account the absence of specific error by the learned sentencing judge, his careful reasoning, his findings of fact and, as a last check, a comparison of the sentence pronounced in the present case with the authorities relied on by Mr Dhanji, I am of the view that the sentence was lenient but not manifestly inadequate. 44 The order which I propose is that the Crown appeal be dismissed.

27/05/2008 - Correction of spelling of Counsel's name on coversheet - Paragraph(s) coversheet

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