R v Hookey

Court of Criminal Appeal (NSW)|2018-04-27|Before: Hoeben CJ, Rothman J, Button J, As Rothman J

Solicitors: Director of Public Prosecutions (NSW) (Appellant) Mallinson & Rake Lawyers (Respondent) File Number(s): 2016/348073 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 14 December 2017 Before: Williams DCJ File Number(s): 2016/348073

Judgment

HOEBEN CJ at CL: I agree with Rothman J and the order which he proposes. As Rothman J has set out, the sentence imposed by his Honour was manifestly inadequate. Despite that finding, the Crown has failed to satisfy me that the Court in the exercise of its residual discretion should intervene and re-sentence the respondent to a longer sentence.
ROTHMAN J: The Crown appeals against the sentence imposed upon the respondent, Tristan Hookey, by the District Court of New South Wales (Williams DCJ) on 14 December 2017 for the offence of wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900. The Crown appeal does not require leave.
The sentence imposed by the District Court was for a head sentence of 3 years' and 8 months' imprisonment, including a non-parole period of 2 years' and 2 months'. The appeal is taken pursuant to s 5D of the Criminal Appeal Act 1912 and raises two grounds: 1. His Honour erred by failing to take into account that the offence involved the actual use of a weapon in accordance with s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999; and 2. The sentence pronounced was manifestly inadequate.

Facts

This is an offence which shows, starkly, the repercussions of road rage and arises out of an incident while on the public road. It seems that the victim was a passenger in a motor vehicle involved in some kind of incident with the respondent's vehicle on Wentworth Avenue, Pendle Hill.
The respondent, driving his car, pursued the victim's car, which culminated in both cars stopping in the middle of the road. A confrontation ensued.
The victim approached the respondent's vehicle, raised his arm in a pointing gesture and asked what the respondent was doing. The respondent alighted from his car and was armed with a knife.
The victim was "king hit" from behind by another person, Kyle Martin, whereupon, the respondent immediately moved to stab the victim, stabbing him three times. At the time that the respondent stabbed the victim, the victim was looking behind him in the direction from where the punch had emanated.
Kyle Martin then punched the victim twice and the victim fell to the ground. Once the victim was on the ground, the respondent kicked the victim. Kyle Martin and the respondent were friends and CCTV footage shows them hugging earlier in the evening.
A third person, wearing an "RVAC" shirt, moved between the respondent and the victim, at which a confrontation ensued between the two. Kyle Martin eventually separated the two.
The respondent fled the scene and police/ambulance attended a short time later. Kyle Martin and the person wearing the RVAC shirt left the scene.
It should be stressed that: at no stage, did the victim punch or attempt to punch the respondent; at no stage, did the victim raise his arm or arms towards the respondent; at no stage was there an attack on the respondent or a reasonable apprehension of attack and the respondent was not acting in self-defence when he stabbed the victim; and lastly, when the respondent stabbed the victim, he intended to cause him grievous bodily harm.
As earlier stated, the respondent stabbed the victim three times. One of the victim's wounds was to his forearm, and required surgical intervention. The victim's wrist flex or muscle was cut by 20% and repaired. Another wound penetrated the right side of the victim's chest, resulting in hemopneumothorax.

Subjective Features

When an appeal raises the issue of the range of sentences available and whether the sentence imposed is within that range, it is not only the objective circumstances of the offence that are relevant to the determination of the range. The range of sentences that may be imposed in relation to any offence and offender takes into account all of the purposes of sentencing and all of the circumstances of the offender and seeks, through the process described as "instinctive synthesis", to arrive at a result that reflects each and all of those purposes. No one sentence is correct and, therefore, a range of sentences may be imposed, and each sentence within that range is an appropriate sentence.
The objective circumstances have been summarised above. The sentencing judge referred to the need to treat the subjective circumstances with caution, because most were adduced otherwise than by direct evidence and were not the subject of cross examination. Nevertheless, the sentencing judge noted the following aspects: 1. The respondent's background had been "attended by social deprivation and substantial disadvantage in that he was raised in a community surrounded by alcohol abuse and violence"; 2. He was raised by his grandmother as both of his parents served significant periods in custody; 3. He was introduced to alcohol at a young age, followed by cannabis and then more serious drug use involving benzodiazepines, amphetamines and cocaine; 4. He was introduced to gambling at a young age, at or about the same time as he was introduced to drugs and alcohol; 5. He had attended a number of schools, had been suspended for behavioural problems and, ultimately, left school in year 11 when his substance abuse became problematic; 6. The respondent had a poor history of compliance with institutional requirements, as evidenced by his custodial record; 7. In the few months that he had been on parole, he had formed a relationship with a long-time family friend and they had a child together. The respondent has expressed the view that he wanted to be involved in the child's upbringing to effect a different surrounding circumstance to that which he had as a child and to ensure that the child was not the subject of greater disadvantage.
The offence was unplanned and the respondent had expressed regret for the offence to the victim and members of his family.
The sentencing judge found special circumstances (the Crown did not oppose that course on sentencing), and did so on the basis that the respondent would need sustained rehabilitation to address his drug and alcohol addiction and to obtain appropriate psychological treatment.

Principles on Appeal

The general principles associated with the Crown appeal are of long-standing and well accepted. By the promulgation of s 68A of the Crimes (Appeal and Review) Act 2001, the Court is required to exclude any element of double jeopardy involved in the respondent being sentenced again or in dismissing the appeal.
This provision was the subject of discussion by the Court of Criminal Appeal in R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 in which Spigelman CJ explained that the term "double jeopardy", where used in s 68A of the Crimes (Appeal and Review) Act, removed from the consideration of the Court in a Crown appeal any element of the ordinarily suffered "distress and anxiety" caused by the uncertainty of outcome or the notion of being sentenced twice. Nor may the Court exercise a discretion not to intervene on the basis of such usual distress and anxiety.
Otherwise, the principle of double jeopardy and its abolition does not preclude the exercise of a residual discretion not to intervene and to reject a Crown appeal against sentence. It is for the Crown to prove that the discretion ought not be exercised, and that discretion survives the requirement on the Court not to have regard to the principle of double jeopardy: see R v JW, supra, at [141]; and see also Green v the Queen; Quinn v the Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green & Quinn"), which confirmed the approach taken by the Court in R v JW. The High Court, in Green & Quinn, supra, also explained that the function of Crown appeals is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": Green & Quinn, supra, at [35] and [36].
Bearing in mind those qualifications, the summary of the principles on a Crown appeal adumbrated by Wood CJ at CL in R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42 continues to apply. The principles were summarised at [70] of R v Wall and include the following: 1. the usual restriction upon appellate review of the exercise of a discretion applies to Crown appeals against sentence: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; 2. the Court, on appeal, cannot merely substitute its own opinion, as to the appropriateness of the sentence, for the opinion of the sentencing judge: Lowndes v R (1999) 195 CLR 665; [1999] HCA 29; 3. the appellate court may intervene only where error either latent or patent is shown: House v The King, supra; R v Tait (1979) 24 ALR 473 at 476; 46 FLR 386 at 388; and Wong v The Queen (2001) 207 CLR 584 at 605 [58], 624 [109]; [2001] HCA 64; 4. unless there is clear error of principle identified, it would be exceptional for the Court to interfere in the sentence at first instance: R v Baker [2000] NSWCCA 85; 5. Crown appeals against sentence are concerned with establishing principles "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310; [1977] HCA 44; 6. the power to establish principles includes doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, namely, where the sentence is definitely outside the appropriate range for the case in hand: Dinsdale, supra; 7. even if error has been shown, the Court has a lively discretion to refuse to intervene and that discretion should be exercised unless the Crown can satisfy the Court that it ought not to be.
Grounds for the exercise of the residual discretion may include: that an increase in the sentence would create a disparity between the sentence imposed on the respondent and a sentence, not otherwise challenged, that had been imposed on a co-offender; delay in the hearing and determination of the appeal; delay in the notification to a respondent that an appeal was to be taken against the sentence imposed; the imminent or past release on parole of the respondent to the appeal; and the effect of resentencing on progress towards the respondent's rehabilitation, or any of the other purposes of sentencing.
None of the foregoing suggests that it is not open to the Court to grant a Crown appeal solely on the basis of manifest inadequacy: see Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38. In doing so, the Court would be seeking to achieve the wider purpose of consistency in sentencing and the establishment of sentencing ranges and principles: see R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [70]
Manifest inadequacy, which is usually the ground of appeal raised by the Crown, is, like manifest excess, an example of manifest error. As earlier stated, the principles in House v The King supra at 504-505, make clear that the exercise of a sentencing judge will be the subject of intervention only in circumstances where the judge acts upon a wrong principle; allows extraneous or irrelevant matters to guide or affect the outcome; mistakes the facts; or fails to take into account some material consideration.
Not all errors may be identifiable. If the sentence imposed is "unreasonable or plainly unjust" (see House v The King, supra, and Dinsdale, supra), it is open to an appellate court to infer that there has been a failure properly to exercise the discretion which has been reposed in the court, because the proper exercise of the sentencing process, utilising properly the sentencing principles, could not have resulted in the unreasonable or plainly unjust outcome that has been imposed upon an offender.

Submissions

On the first ground of appeal, the Crown submits that not all woundings (with or without intent) involve the use of a weapon. As a consequence, the use of a weapon is not an element of the offence and should be regarded as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.
Even though the sentencing judge noted that the use of a weapon was not an element of the offence, the sentencing judge treated the use of the weapon otherwise than as an aggravating factor. In those circumstances, the sentencing judge, in effect, treated the circumstance of the use of a weapon as if it were an element of the offence.
The Crown concedes that there are few, if any, woundings (particularly those with an intention to cause grievous bodily harm) that do not involve the use of a weapon of some kind. The treatment by the sentencing judge of the use of the weapon as an element of the offence, or, more accurately, the failure to treat the use of the weapon as an aggravating feature pursuant to s 21A of the Crimes (Sentencing Procedure) Act, is an identifiable error of some moment, which requires correction.
Further, the Crown submits, in relation to the manifest inadequacy of the sentence, that the sentence imposed, given the circumstances of the offence, is plainly unjust and unreasonable and insufficiently reflects the need for specific and general deterrence, together with the other purposes of sentencing. The Crown submits that its appeal has been brought for the purpose of providing guidance to sentencing courts because the sentence imposed is so manifestly inadequate that it is plainly unjust and likely to undermine public confidence in the proper administration of criminal justice.
According to the Crown, the sentence imposed by his Honour was far below the range of sentences that could justly be imposed and is inconsistent with appropriate sentencing standards: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Markarian v R (2005) 228 CLR 357; [2005] HCA 25; Dinsdale, supra; Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 ("Hili & Jones").
In particular, the sentence imposed failed adequately to reflect the objective criminality of the offending behaviour; failed adequately to reflect the need for general and specific deterrence and denunciation of the offence, especially in light of the prior record and parole status of the respondent; and indicated that his Honour gave undue weight to the respondent's subjective circumstances.
The Crown points to the maximum penalty for the offence being 25 years' imprisonment, and that the sentence imposed pays no or insufficient regard to that important guidepost.
The Crown also submits that the respondent was only prevented from inflicting further harm by the intervention of one or more others. This factor, according to the Crown submission, increased the objective seriousness of the offence and the offending: Duncombe v R [2013] NSWCCA 271.
Further, the Crown relies upon the victim impact statement and submits that the victim has continued to have trouble driving as a result of the injuries; has been unable to work in his chosen career; and continues to have flashbacks/nightmares about the incident.
While acknowledging the subjective factors applicable to the respondent, the Crown submits that his criminal record, which includes a previous offence under s 33(1)(a) of the Crimes Act, which was committed in 2013, requires specific deterrence at a greater level. The current offence was committed by the respondent only shortly after release from custody for that 2013 offence.
The respondent submits that a survey of those cases, performed by Fagan J in Newman v R [2015] NSWCCA 270, shows, as Fagan J concluded, that "nearly all of the above comparators involve the use of a weapon". It is a rare case that wounding would not involve a weapon of some kind. Thus, if the use of a weapon were an aggravating factor, virtually every offence would have to be treated as an aggravated form of the offence.
Further, the respondent submits there can be no doubt that his Honour was aware that a knife was used and took that fact into account as a relevant factor in his assessment of the offence. As a consequence, particularly of that latter circumstance, the appeal ground is not made out.
As to the manifest inadequacy, the respondent points out that "inadequacy of sentence" means indicative of error or departure from principle. A gross departure from the range of sentence may be an error in point of principle, allowing the Court to exercise its influence towards consistency of sentence, but consistency of sentence is not secured by the Court substituting, in any case that the Crown seeks to bring before it, its own view of the appropriate sentence.
As the High Court made clear in the Hili & Jones, supra, consistency of sentence is achieved by the consistent application of the principles of sentencing. A marked difference in the sentence imposed, compared to other sentences, is insufficient, on the submission of the respondent, to justify appellate intervention: Hili & Jones, supra.
Further, the respondent relies upon the residual discretion and refers the Court to the judgment in R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489, to submit that the Crown must surmount two hurdles: first, to disclose error that is capable of intervention; and, secondly, to negate any reason why the residual discretion ought not be exercised.
The residual discretion is, as is obvious from its appellation, residual. It does not fall to be considered unless and until error that would otherwise justify the intervention of an appellate court has been disclosed. Once the residual discretion is enlivened, it remains incumbent on the Crown to demonstrate that the discretion to intervene should be exercised.

Consideration

The first ground relies upon the terms of s 21A(2)(c) of the Crimes (Sentencing Procedure) Act, which has been the subject of discussion that does not need to be reiterated in full, although some aspects do need repeating.
Section 21A of the Crimes (Sentencing Procedure) Act is not a checklist for the mechanical application of criteria that add to or subtract from the seriousness of an offence. If a factor described in ss 21A(2) or 21A(3) is an element of an offence, then it cannot be an aggravating or ameliorating factor in a sentence to be imposed for that offence. The provisions in s 21A(2) and s 21A(3) are in addition to any other matters that are appropriate to be taken into account by the Court as a matter of law.
Further, any factor that has been taken into account in determining the seriousness of an offence, particularly the objective seriousness of an offence, cannot be taken into account again if it is, in that respect, in or to the same effect.
Thus, the sentencing judge would have fallen into error were he not to have taken into account that a weapon had been used. However, the remarks on sentence make it clear that the use of the weapon was a factor known and relevant to fixing the objective circumstances of the offence in question. If, as was, in my view, made clear by the sentencing judge, the use of the weapon was utilised as a factor in determining the objective seriousness of the offence or the moral culpability of the objective behaviour, it could not be counted again as an aggravating feature on account of the provisions of s 21A(2) of the Crimes (Sentencing Procedure) Act.
The sentencing judge was correct in concluding that the use of a weapon is not an "element" of the offence under s 33(1) of the Crimes Act. His Honour, however, determined that "where the allegation is 'use of a knife' it is an element of the offence" and, in that statement, his Honour was incorrect. The indictment does not allege as an element the use of a knife and the use of the knife is not, and never could be, an element of the offence under s 33(1)(a) of the Crimes Act.
Nevertheless, his Honour took into account the use of the knife in determining the objective seriousness of the offence in question. He did so as part of the process of determining objective seriousness, in accordance with the general law. Having done so, it is not an error, and certainly not an error that would warrant appellate intervention, for the sentencing judge to reject the use of the knife as a further aggravating feature in the determination of objective seriousness or the sentence to be imposed for the offence in question.
If there were no use of a weapon, given the nature of the offence under s 33(1)(a) of the Crimes Act, the offence in question would, generally, be at the lowest end of the objective seriousness of such an offence. And, as has been stated, it would be rare, in an offence of this kind, for a weapon not to have been used.
The use of the knife is and remains an aggravating factor in the determination of objective seriousness, or the sentence to be imposed for the offence, under s 21A of the Crimes (Sentencing Procedure) Act. In that regard, his Honour was in error. However, as his Honour considered the use of the knife in the determination of objective seriousness, his Honour could not, on that basis, have further aggravated the offence, or the sentence, on the basis of the provisions of s 21A(2)(c) of the Crimes (Sentencing Procedure) Act.
In those circumstances, error on this ground may be disclosed, but the error had no effect on the sentence that was imposed. None of the foregoing deals with whether his Honour correctly categorised the objective seriousness of the offence in question; only whether his Honour characterised the objective seriousness by including as a consideration the use of a weapon.
The second ground of appeal involves different considerations. As has been made clear on a number of occasions, manifest error involves the determination by a court that the outcome of the sentencing process discloses error that cannot be explained by identifiable error. It requires the Crown to prove that the sentence imposed is unreasonable or plainly unjust.
The objective circumstances of this case are extremely serious. This is a road rage incident. It involves, as a consequence of road rage, a person alighting his vehicle and stabbing, three times, a passenger of the other vehicle. The circumstances disclosed by that short summary require the Court's denunciation of such conduct and for the Court to stress the importance of general deterrence in the sentence to be imposed.
In the situation faced by the sentencing judge, the purpose of specific deterrence was also an important factor to be considered in imposing a sentence. The respondent has prior offences, including a prior offence under s 33(1)(a) of the Crimes Act being an offence of wounding with intent.
At the time of the offence, the respondent was on conditional liberty, being parole for that offence. In those circumstances, the respondent is not and was not entitled to the leniency to be shown to a first-time offender.
His record of similar offences, and the offence being committed while on parole, shows a greater need for a sentence to be imposed that reflects specific deterrence.
The injuries inflicted on the victim were serious. It is only luck that prevented the death of the victim. The sentencing judge found there was no provocation. Nor could there have been.
Even if it were suggested, which in my view it should not be, that an incident on the road may be provocation for an offence of this kind, such an incident could not be sheeted home to a passenger in the offending vehicle.
As has been stated, the seriousness of an offence under s 33 of the Crimes Act is manifest and, in the circumstances of this offence, the purposes of specific deterrence and general deterrence loom large. The legislature has imposed a maximum sentence that is the longest determinate sentence imposed for offences under the Crimes Act.
The maximum sentence is 25 years' imprisonment. There is a standard non-parole period of 7 years' imprisonment. Each of the maximum sentence and the standard non-parole period are important guideposts in the determination of a sentence.
On the other hand, the respondent is of Aboriginal descent, brought up by his grandparents and has suffered a childhood environment of alcohol abuse and violence. He was raised by his grandparents because both of his parents were incarcerated. As stated, he was subject to early exposure and addiction to alcohol and drugs and, on the evidence before the sentencing judge (and before the Court), has taken significant steps towards rehabilitation.
The insight he has disclosed before psychologists and psychiatrists is impressive, as is his attitude to the raising of his infant and the relationship with his partner. Each of these should be commended. Further, the Court ought to think carefully about the interruption to that rehabilitative process that raising the sentence imposed may cause.
Persons of Aboriginal descent are not entitled to any greater leniency than any other person. Nevertheless, as the High Court stated in Bugmy v The Queen, supra, the social exclusion and disempowerment of persons of Aboriginal descent and of Aboriginal communities seems to have made an environment of violence, alcohol and drugs more prevalent in the Aboriginal community than in the total population. The answer is not longer incarceration. The answer lies in the treatment that neutralises or reverses the effect of social exclusion, disempowerment, discrimination and violent environment. It is fair to say that the respondent has taken steps towards that end.
The subjective circumstances are significant and the prospects of rehabilitation are good. However, in my view, the range of sentences for this violent offence, particularly given that it is a repeat offence by this respondent, who was on conditional liberty at the time, do not allow for a sentence of this leniency.
Even allowing for the subjective circumstances of this respondent, the range of sentence available did not include a sentence as low as the head sentence of 3 years' and 8 months' imprisonment, nor a non-parole period of 2 years' and 2 months' imprisonment. Such a sentence has no regard, it seems, to the maximum sentence available, nor to the standard non-parole period as important guideposts in the offence.
Given the extraordinary subjective circumstances of the respondent, I am prepared to allow for the proposition that the head sentence could be as low as 5 or 6 years' imprisonment and the non-parole period as low as 3 or 4 years' imprisonment. If it were not for the subjective circumstances, I could not imagine, given the need for general and specific deterrence in particular, that a sentence lower than 8 years' imprisonment would be appropriate.
I have not, in the foregoing, stated a definite sentence to be imposed. I have not done so for the following reason. The purpose of a Crown appeal is, as earlier stated, to provide guidance to sentencing courts, where the sentence under appeal is so manifestly inadequate that it is "plainly unjust" or "unreasonable" and is likely to undermine public confidence: Bugmy v The Queen, supra. The present appeal has been brought for that purpose. I have dealt with that issue, as a matter of principle and as a matter of guidance.
Further, I have made it clear that the use of a weapon is not an element in an offence under s 33(1)(a) of the Crimes Act and is, therefore, an aggravating factor. However, I accept that the manner in which the sentencing judge has dealt with the issue is one that is not infected by that error. The sentencing judge said: "[18] I accept, as the Crown submits, that the degree of violence in the offence is high. The offender was involved in stabbing the victim on multiple occasions with a knife and kicking him while he was on the ground. he [sic] offence was unprovoked. The nature and extent of the injuries has been described and they were serious. While Mr Phelps submits that the offence was towards the lower end of the range I am more persuaded that the offending was below mid-range, but not within mid-range as suggested by the Crown. [19] I do not accept that the use of a weapon was an aggravating factor, as in my view the use of the weapon in this particular case was inherent in the offence. However, his previous record for convictions, particularly for serious violence and the same type of offence, is an aggravating factor to be taken into account. It does not increase the objective seriousness, but, as was said in cases such as R v Johnson [2004] NSWCCA 76; 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted.' He was also on conditional liberty which is an aggravating factor, and as the Crown correctly points out, there is a strong need for both specific and general deterrence for a repeat offender."
Notwithstanding that the sentencing judge did not accept that the use of the weapon was "an aggravating factor", the sentencing judge did assess the objective criminality of the offence on the basis that a weapon was used.
The evidence of rehabilitation and the insight into the offending that has been disclosed by the respondent is, in the circumstances of this case, the factor which has most influenced the outcome of this appeal, from my perspective. In my view, given those circumstances, the Crown has not satisfied me that the Court should exercise its residual discretion and intervene to quash the manifestly inadequate sentence and to resentence the respondent.
In those circumstances, I would propose that the Court make the following orders: 1. Appeal dismissed.
BUTTON J: I agree with Rothman J. In my respectful opinion, although error has been established by way of manifest inadequacy, the Crown has not affirmatively demonstrated that, as a matter of discretion, this Court should intervene to increase the sentence of imprisonment that was imposed.

Amendments 23 July 2019 - [23] Typographical error: "relevant" replaced with the word "irrelevant". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2019

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