Was another sentence warranted?
26 However, error by the sentencing Judge does not necessarily require the Court to intervene. In R v Boulghourgian (2001) 125 A Crim R 540, Spigelman CJ said this: (at para 34)
"[34] Even though there is error detected in the reasoning process of a trial judge, s6(3) does not enable this court, much less require it, to interfere with the sentence unless it is of the view that a more lenient sentence should have been passed: Regina v Astill (No 2) (1992) 64 A Crim R 289 per Sully J at 303 and Lee AJ at 304."
(see also R v Simpson (2001) 53 NSWLR 704)
27 It was said on behalf of the applicant that the plea of guilty was at the earliest opportunity. It was therefore appropriate that the full discount of 25% should have been given. Moreover, his Honour recognised that this was the first time in custody for Mr Davies. The Crown conceded before the sentencing Judge that a finding of special circumstances was warranted. In the applicant's submission a more lenient sentence should have been passed.
28 The Crown, however, drew attention to Pt 4 Div 1(1) of the Crimes (Sentencing Procedure) Act 1999. That Part was introduced in October 2002, with operation from 1 February 2003. It identified standard non parole periods in respect of offences set out in a table which formed part of that Division (s54A). The offence in count 1 (under s112(2) of the Crimes Act 1900) was included in the table, setting a standard non parole period of 5 years. The standard non parole period is described as representing "an offence in the middle of the range of objective seriousness for offences" in the table (s54A(2)). The Court is required "to set the standard non parole period" unless it determines that there are reasons for setting a longer or shorter period (s54B(2)). The Court may depart from the standard, but only for reasons which are identified in s21A of the Act (s54B(3)). Section 21A obliges the Court, when fixing a sentence, to have regard to aggravating and mitigating factors (which the section identifies), as well as other objective and subjective factors affecting the relative seriousness of the offence. The Court, by s54B(4), is enjoined to make a record of its reasons for increasing or reducing the standard non parole period, identifying each factor taken into account.
29 At the time Mr Davies was sentenced, the regime introduced by s54A and s54B was new. His Honour did not have the benefit of the judgment of this Court in R v Way [2004] NSWCCA 131 (Spigelman CJ, Wood CJ at CL and Simpson J) (handed down on 11 May 2004). In that case the Court identified a number of principles to be used when interpreting these amendments. First, the Court explained what should be understood as "an offence in the middle of the range of objective seriousness" (paras 72-102). Secondly, it made it clear that the standard non parole period in the table must be taken as referring to an offender who has been convicted after trial (para 68). It would therefore be appropriate, where an offender had pleaded guilty, to use the standard non parole period as a reference point and to take account of the plea as a mitigating factor (s21A(3)(k)). Whilst it was argued that the standard non parole period had no application where there had been a plea of guilty (cf Bergin J in R v Mouloudi [2004] NSWCCA 96 at para 62), it is plain from R v Way that this was not so.
30 His Honour, not having that exposition, did his best in unchartered waters. He said this (referring to the standard non parole period for the offence under s112(2)): (ROS 9/10)
"Having regard to some of the types of sentences that are distributed throughout this State by some of my brother Judges, I find that level of sentence to be unbelievable and unsustainable. Not because I disagree with it, because simply I do not, but because it is completely out of kilter with any perception that I have of the type of sentences that some Judges in the State visit upon some quite serious criminals."
31 He added: (ROS 10)
"But be that as it may, I do not think that this offence attracts, in all of these circumstances, a non parole period of five years for any of these prisoners. I may be in disagreement then with the government in that regard, but it would be completely out of kilter with any understanding or appreciation of the sentencing guides and the sentencing methods presently used in this State. I see a need for increasing sentences. Obviously the government does too, or that section would not have come into existence. I cannot believe that that section is envisaged to be mandatory. Indeed, the Crown agrees with my thinking out loud that it is not so, that it is not mandatory."
32 His Honour concluded by saying: (ROS 10/11)
"I think these are very serious sentences, and had these men ever committed anything remotely close to this before, they would be looking at very serious sentences, and they would be anyway. But in the presence of a plea of guilty I simply find myself unable to impose a non parole period of five years on any of them."
33 The Crown submitted that his Honour, not having the benefit of R v Way, had not undertaken the task which the section required. Had he done so, he would have been driven to a sentence exceeding that which he passed. In R v Way (supra), the Court made it clear that the sentencing Judge must ask and answer the question: "Are there reasons for not imposing the standard non parole period?" That question will be answered by considering the following: (para 118)
"(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s21A(2) and (3), and as incorporated by the general provisions in s21A(1)(c) and by the concluding sentence to s21A(1)."
34 Here, according to the Crown, his Honour implicitly determined that the offence was above the middle of the range of objective seriousness. He said that, whilst it was not in the worst category, "it cannot be enormously far removed from it". It was a sustained and vicious attack upon a vulnerable woman, carried out, at least initially, in the presence of a child. There were, in addition, a number of aggravating factors within s21A(2). The actual bodily harm upon the victim was an element of the offence and therefore was not an aggravating factor. The fact that the offence was committed in company was a matter included in the indictment, but would have added to the terror suffered by the victim (R v Way at para 107). The use of a weapon was a matter of aggravation, as was the fact that Mr Davies was subject to a bond at the time of the offence (s21A(2)(j)).
35 There were also matters in mitigation. Mr Davies had pleaded guilty at the first available opportunity (s21A(3)(k)). There was some expression of remorse (s21A(3)(i)), although it was far from complete.
36 On the Crown's argument, therefore, had his Honour followed the new regime, as required by the section, and explained in R v Way, and even allowing the full 25% discount for the early plea, he still would have reached a sentence exceeding that which he imposed (approximately 3 years 7 months, cf 3 years 3 months non parole period imposed).
37 His Honour did find special circumstances, it being Mr Davies' first time in custody. Even making an adjustment to take account of that finding, on the Crown's argument no lesser sentence should have been passed, especially since the offence, properly characterised, was worse than "an offence in the middle of the range of objective seriousness".
38 I accept the Crown's argument. Notwithstanding error, I am not persuaded that a more lenient sentence should have been passed.