R v Hampton

COUNSEL : R A Hulme -Crown P M Skinner - Appellant SOLICITORS : S E O'Connor - Crown T A Murphy - Appellant CATCHWORDS : DECISION : Application for leave to appeal refused.

• 12 - IN THE COURT OF CRIMINAL APPEAL No: 60013/99 STEIN JA HULME J GREG JAMES Monday 25 October 1999 REGINA v Julie Ann HAMPTON JUDGMENT 1 STEIN JA: The Court is in a position to give judgment in this matter. I would ask Justice Hulme to give the first judgment of the Court. 2 HULME J: On 23 October 1998 her Honour Judge Latham sentenced this applicant for leave to appeal, on one count to a minimum term of two years, three months penal servitude dating from 26 February 1998, and an additional term of nine months, and in respect of a second count on the indictment before her Honour, to a fixed term of penal servitude for one year from 26 February 1998. 3 The charges against the applicant were of assault occasioning actual bodily harm. Apart from those two charges, her Honour was asked to take into account one further charge of a similar nature and one of common assault. 4 The circumstances of the offence and offender, and the approach which her Honour said she was taking, appear with commendable brevity and clarity from her Honour's remarks, which were as follows:- "Julie Ann Hampton pleaded guilty before me on 17 August 1998 to two counts of assault occasioning actual bodily harm and has requested that a further two matters be taken into account on a Form 2.

The offences arose out of an association between the prisoner and two women, namely Mary Ann Turner and Cheryl Waight. The three women met by chance on the morning of 31 December 1997 in Glebe where an argument developed and a struggle took place between the prisoner and Ms Turner. The prisoner punched Ms Turner to her face, head and body, resulting in scratching and bruising. Those injuries are the subject of the second count in the indictment. Ms Waight came to Ms Turner's assistance. Shortly thereafter the ignition keys from Ms Waight's motor vehicle were removed and came into the prisoner's possession. The prisoner was followed by Ms Turner and Ms Waight in an attempt to have the keys returned. The prisoner threw the keys onto the roadway. While Ms Waight was in the act of retrieving the keys the prisoner produced a knife and Ms Waight sustained two stab wounds to the back in the course of a further assault by the prisoner Those injuries are the subject of the first count in the indictment. Ms Waight grappled with the prisoner and took hold of the knife blade, thereby sustaining a further cut to her left hand. That injury is the subject of one of the Form 2 matters, namely an assault occasioning actual bodily harm, the other being a common assault upon Ms Turner. The prisoner was first spoken to by police on 23 January 1998 and declined to comment. The knife used in the commission of the offences was not recovered but the description provided by the victim was consistent with a common kitchen knife with a six inch serrated blade. The prisoner has given evidence before me today in which she indicated that the knife was obtained from a nearby house at some stage after the altercation between herself and the victims had started. It is trite law that the prisoner's pleas to the offences on the indictment bring with them admissions as to the essential ingredients of those offences but no more Nonetheless it was not put in issue before me that a knife was produced by the prisoner. That feature of the first count on the indictment and of the assault occasioning actual bodily harm on the Form 2, aggravates the commission of those offences, carrying as they do a maximum penalty of five years penal servitude. I stress that I am not sentencing the prisoner on the basis that she intentionally or recklessly wounded Ms Waight. I accept that the only basis upon which I can approach sentence is that the prisoner assaulted Ms Waight and that actual bodily harm was occasioned to her. In having regard to the production of the knife as an aggravating circumstance, I do not consider that I am offending the De Simoni, see R v De Simoni (1980-1981) 147 CLR at 383, although I concede that I would be so offending if I were to have regard to the extent of the injuries. That is, the wounding. Put another way, it is possible to produce a knife in the course of an assault and not thereby inflict a wound. In such circumstances the production of the knife would nonetheless be an aggravating circumstance of the offence of assault occasioning actual bodily harm. Turning to the prisoner's subjective circumstances. She was introduced to heroin at the age of thirteen by the mother of a friend. She attempted detoxification at the Langton Clinic at the age of sixteen years but left voluntarily and recommenced her use of heroin. That use escalated to daily use until, at the age of sixteen, she had what she referred to as dry periods' at various times thereafter. Following a period of incarceration and her release in 1997 she undertook a methadone program at the Royal Prince Alfred Clinic but discontinued that program shortly after her release to parole. She commenced buying methadone on the street and within a short period of time she was back to using heroin. At the time of the offences, the subject of the indictment, she was using heroin having had a dose earlier in the evening of 31 December 1997. The prisoner has three children aged twelve, nine and four, who are in the care of her mother. Sine her incarceration as a result of these offences she has undertaken a basic skills computer course and is employed' in a form of telemarketing conducted within the prison system. She requested that she be placed on methadone about two months ago, albeit prior to being placed on the methadone program she had used heroin three times in the gaol. Suffice to say that from the prisoner's evidence before me, her motivation to change her drug based lifestyle appears somewhat tentative. In her relatively short life of thirty-two years the prisoner has acquired an appalling criminal history consisting predominantly of property and drug offences, indeed she has been either been serving sentences or on recognisances almost continuously since the age of twelve. There is no indication in the material before me that the prisoner has, at any stage, learnt anything form her periods of incarceration or benefited from such leniency as has been extended to her from time to time. The protection of the community is accordingly a significant factor in the sentence I am about to impose for these offences which are, in themselves, objectively serious. Moreover, both specific and general deterrents require the imposition of a full-time custodial sentence. The prisoner pleaded guilty to the indictment as presently framed at the first available opportunity, although her pleas of guilty were no doubt precipitated by the strength of the Crown case against her. Nonetheless, I accept that those pleas saved the community the expense of a trial. There is some evidence before me of the prisoner's contrition and remorse for the injuries she inflicted upon the victims. That evidence is contained in the pre-sentence report of 21 October 1998 and in the prisoner's evidence before me. I am not persuaded that there is anything warranting a longer additional term than is otherwise required by statute. Accordingly I decline to find special circumstances. The prisoner has been in custody since 26 February 1998". 5 No criticism has been made of her Honour's summary of the facts or the approach which her Honour said she proposed to take, although, as will appear, I think there was one error in what her Honour said. However, it is submitted that from her Honour's reference to "stab wounds", her description of the offences as "objectively serious", her reference to the injuries "inflicted upon the victims" and the magnitude of the sentence imposed, it is to be inferred that her Honour did in fact offend the principles she enunciated and took into account factors which were not part of the charges before her, but were part of the elements of the offence of malicious wounding or infliction of grievous bodily harm encompassed by s 35 of the Crimes Act. 6 It was submitted that her Honour was not entitled to take into account the stab wounds which one of the victims suffered or to take them into account as other than accidental and of minimal weight. 7 Why in the face of the evidence which the Crown had and which, if accepted, established substantially more serious offence or offences than those charged, the Crown elected to proceed as it did is not apparent. However, as was her Honour, this Court is obliged to approach the matter upon the basis of the charges laid. 8 In face of her Honour's statements as to the principles she proposed to adopt, I am unpersuaded that her reference to "stab wounds", "objectively serious" and "inflicted" provides any indication that her Honour departed from these principles. As was said in R v Overall, (1993) 71 A Crim R 170 at page 174, "The fact that a Judge recites facts does not mean that in assessing his sentence he took them into account. It is proper that a sentencing Judge correctly state the circumstances of the case". The first and third of the references quoted are no more than accurate statements of what occurred as displayed by the evidence before her Honour. While the law required her Honour not to take into account against the prisoner matters which constituted a more serious offence, and reference to such other factors may in some circumstances lead to the conclusion that they were taken into account, the law does not so emasculate a Judge that he or she is prevented from conveniently summarising the evidence in the case. 9 Furthermore, the applicant's offences were objectively serious. That the subject of the second count commenced with some unprovoked punching of Miss Turner while the latter was lawfully going about her own affairs in the street. Miss Turner finished up with grazes to her knees and an elbow, soreness of jaw, hair pulled out and scratches to her face, the longest of which stretched from about eye level to her jaw. 10 The assault on Miss Waight which was the subject of the first count was again unprovoked and occurred while her back was turned and she was retrieving her keys. Furthermore, in her description of the incident, her Honour was entitled to take into account the fact that during the incident the applicant was armed with a knife. I have said before that the presence of any such weapon in an emotionally charged situation raises the stakes greatly, both in terms of the danger created and in terms of the penalty which is liable to be imposed. For years the Courts, and more recently Parliament, has done what it can to discourage the presence of such weapons. 11 Her Honour did say that the principles in R v De Simoni (1980-1981) 147 CLR would be offended if she were to have regard to the extent of the injuries in this case. Those to Miss Waight included two stab wounds, as her Honour mentioned. Those wounds led to Miss Waight's hospitalisation and substantial exploratory surgery. In my view, while her Honour was not entitled to have regard to a totality of facts which constituted an offence under s 35 of the Act, she was entitled to have regard to the extent of the injury suffered by the victims in this case. 12 In the R v Overall, to which I have referred, and also in R v Bough [1999], NSW CCA, 131, the Court had regard to the brain damage which was suffered by the victims in consequence of the assaults. The fact that the applicant is charged with an assault occasioning actual bodily harm does not, in my view, preclude a court having regard to the fact the bodily harm may be grievous, so long, of course, as it does not also have regard to the question of malice. To take both into account would be to offend the principle for which R v De Simoni stands as the principle authority. 13 Reliance was also placed, as I have indicated, on the magnitude of the sentence which was imposed, both as a factor indicating an error in approach on the part of her Honour and as itself excessive. The Court's attention was directed to the statistics kept by the Judicial Commission and it was submitted that these demonstrate that the sentence imposed on the applicant was excessive. Those statistics show that between January 1990 and October 1998 of 1,387 offenders, 456 or some 33 percent were sentenced to full time imprisonment and only some 77 or 5.5 percent were sentenced to imprisonment for three years or more. Only some 25 or about 2 percent of these had minimum terms exceeding two years. The figures are somewhat less for offenders who pleaded guilty. 14 Although I acknowledge that in R v Bloomfield (1998) 44 NSWLR 734 the Chief Justice expressed the view that he found the Judicial Commission statistics useful in indicating how rare it has been for a sentence of the severity of that imposed in that case, four years, to be imposed, I confess that I take a different view in this case. It is not obvious to me that, with the applicant's record, her conduct did not merit a sentence which in totality was but 60 percent of the statutory maximum and the minimum term of which was somewhat less than 50 percent thereof. 15 The applicant's record can only be described as appalling. Her drug addiction is no doubt the explanation for many of her offences of dishonesty, but the frequency of her offending is mind boggling. That offending commenced at age 12 when she was placed on probation for twelve months. After having been placed on a recognisance or probation on five separate occasions, she was first committed to an institution in December 1982 when aged 16. There have followed twenty-seven further separate occasions when courts have sentenced her to imprisonment, many times for more than one offence. Generally, and perhaps to her credit, her record displays little propensity for violence, although it is appropriate to record in May 1991 she committed the offence of assault occasioning actual bodily harm and in November 1991 was sentenced to three months imprisonment on two counts of assault. The vast bulk of her offences are offences of dishonesty. However, she has also been convicted on numerous occasions of driving whilst disqualified and driving an unregistered and uninsured vehicle. Judge Latham was quite entitled to regard the applicant's offences in this case as but another instance of contumelious disregard for society's mores, as exemplified in the criminal law. 16 In the written submissions provided on behalf of the applicant attention was drawn to the fact that her middle child suffers from Attention Deficit Disorder and encopresis and no doubt he and the applicant are deserving of some sympathy in consequence. One can certainly see the potential for advantage in that child having his mother present to care for him. The applicant's own childhood left a deal to be desired, but it is also proper to bear in mind that no doubt all of these matters have been taken into account many, many times when she has appeared in courts. 17 It is not apparent to me that the sentencing Judge did not give full weight to all the subjective matters advanced on behalf of the applicant. I include in these her drug problem, to which her Honour specifically referred. The simple fact is that the applicant has no worthwhile future whatsoever, unless and until she overcomes her drug problem. It may be hoped her incarceration will help in this regard. 18 It was further submitted that the difficulties in ascertaining the precise facts of the assaults, and the fact that the multiple counts really only reflect different aspects or segments of one incident, argue for a lower penalty than was imposed. So far as the first of these matters is concerned there was no challenge in the course of the proceedings before the sentencing Judge to the facts as outlined in the statements before her Honour, apart from the question of the time at which the applicant had obtained the knife. Her Honour's reasons demonstrate she was conscious of this issue. 19 The second matter is sufficiently answered by reflecting on the fact that in totality the applicant assaulted two people and there were two separate times when the knife occasioned injury. According to the applicant, the whole incident lasted about 20 minutes or half an hour and there was no suggestion that the applicant was not aggressive throughout much of the period involved. (In my reference to the applicant having assaulted two people, I do not forget the principle as recently laid down by the High Court in Pierce v R [1998] HCA 57 that the sentence to be imposed on each count must relate to the criminality relevant to that count and not to another one. I seek merely to respond to the argument advanced.) 20 In my opinion, the application for leave to appeal should be refused. 21 STEIN JA: I am unpersuaded that what her Honour did in passing sentence on the applicant offended the principle in "De Simoni". Leaving that to one side, the sentence imposed by her Honour was a severe one. It was nonetheless within the range indicated by the statistics, although at the top. However, the applicant's very lengthy criminal record, which did include some offences of violence, is not in her favour. 22 I agree with what Justice Hulme has said with respect to the submission that the sentence was excessive. The application for leave to appeal should, in my opinion, be refused. 23 GREG JAMES J: Justice Hulme has set out the circumstances of this appeal. I understand his Honour to be referring to the applicant's record when he did so, in the way in which and for the purpose for which the High Court held in Veen v R (No 2) (1998) 164 CLR 465 it should be considered. That is to say, not to aggravate the crime, but for the purpose of ascertaining whether leniency might otherwise be extended bearing in mind, in particular, the protection of the community. I agree with what his Honour has said concerning the asserted "De Simoni" error. 24 Concerning the issue of the severity of the total sentence, although this sentence, considered against the context of other sentences and the Judicial Commission statistics is high, I am unable to conclude that it is, in all the circumstances, outside the range so as to be legally impermissible. On an application for leave to appeal against sentence this court considers the exercise of the discretion in imposing sentence by the trial judge in accordance with settled principles. These require the establishment of error of principle, either in the reasoning or, as becomes apparent in the result. Where a ground of manifest error is asserted the mere result will only show that error, if that result is such as to be beyond the range of a legally appropriate exercise of the discretion. Whether the appeal judges themselves would or would not have passed the same sentence if sitting at first instance is not the point. This sentence was, in my view, within range. I agree with the orders proposed. 25 HULME J: Lest there be any doubt, my reference to the applicant's prior record was in the context and for the purpose to which Justice Greg James referred. 26 STEIN JA: Accordingly, the order of the Court is that leave to appeal is refused.

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