R v Little

Facts 10At about 10pm on 22 January 2009 the respondent entered the home of Elizabeth Jean Cattell who was aged 82 and her daughter Maria Elizabeth Cattell aged 46 in Bourke Street, Turvey Park. He entered through a rear door and confronted Maria Cattell. He was wearing a hood and armed with an implement made by attaching a cricket ball to a pool cue handle. He covered his face and waved the implement around telling Maria Cattell "Give me money, give me money now" and he struck her with the implement on her right shoulder. Maria Cattell tried to stand between the respondent and her mother but her mother reached around and grabbed the respondent's arm. Maria retreated to obtain money from her wallet and returned with $30. The respondent said "I want more" and struck Maria Cattell once with the implement. She then went to obtain more money and he struck Elizabeth Cattell to the head with the mallet. 11Maria then gave him a further $50. He then struck her again with the implement and ran out of the house. The implement was subsequently found abandoned in the house. 12As a result of the assaults Maria Cattell sustained a 4cm long deep laceration to the left side of the skull which required 5 sutures and a second deep long laceration to her scalp over 4cm which required the insertion of 13 staples to repair the wound. She also had bruising to her right shoulder. 13Elizabeth Cattell sustained a 6cm jagged laceration to the left front temple which required 27 staples to repair the wound and a 3cm laceration to the left scalp which required 7 staples to repair the wound and she suffered a bruise to the left forearm. 14In an intercepted telephone call after the event the respondent was recorded as saying: "They went like that and I went like that, there, and I went whoosh. That was to stop them trying to pull my hand from my mouth so that they couldn't see my mouth and I just whacked the cunt, hacked them hard, hard, and went whack there and whack there and whoosh." 15In relation to the earlier offence of 26 October 2008 the respondent and another offender went into the presbytery of the Catholic Church at Turvey Park. The respondent was armed with a knife and wearing a balaclava and he threatened the Parish Priest with the knife and demanded money from the presbytery safe. He pushed the handle of the knife into the priest's back and when the priest opened the safe he removed a number of money bags containing cash, cheques and credit card details from parishioners collected over the weekend services. The offenders escaped with $2435.

The Crown submissions 16At the sentencing proceedings on 19 April 2013 the Crown sought an accumulation of sentences commencing at the expiration of the non-parole period fixed for the 2008 offence. That non-parole period expired on 7 October 2011. The judge, however, commenced the sentences for these offences from 8 July 2010. 17In this Court the Crown argues there was a "failure to adequately accumulate the sentences" and that the statutory ratio was varied to an extent which resulted in a manifestly inadequate non-parole period. In putting that proposition the Crown concedes "the measure of accumulation of 12 months on the 2010 robbery was lenient but probably not erroneously so ..." I assume that relates to the robbery which occurred in 2008 for which sentence was imposed in 2010. The earlier non-parole period expired on 7 October 2011. The non-parole period for these offences expires on 7 April 2014 which adds 2 years and 6 months to the period the respondent will be in custody. 18In sentencing for the 2008 offence the sentencing judge categorised the offence as one falling above that envisaged in the guideline judgment in R v Henry (1999) 46 NSWLR 346 where the Court of Criminal Appeal indicated that a sentence of between 4 and 5 years was called for. When she imposed the sentence she imposed a sentence of 3 years and 9 months. There was no Crown appeal in respect of that sentence. The argument sought to be advanced here is that the sentences under appeal are manifestly inadequate in that there should have been a greater accumulation on the pre-existing sentence and there should be a greater accumulation in respect of the second sentence under appeal. I note, however, that before the sentencing judge the submission of the Crown was that "There would be separate and distinct sentences imposed although those sentences would have a significant degree of concurrency". The Crown also conceded that had the matter been dealt with at the same time as the 2008 offence "there may have been some limited accumulation of the sentences imposed." 19In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55 Ipp JA at [48] stated that it is: "not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed" ... "this is not an inflexible rule". 20In determining whether there is to be accumulation and the extent of that accumulation it is firstly necessary to identify the separate acts and any harm flowing from those acts. It is then appropriate to impose separate and cumulative sentences where the requirements of justice so dictate. In doing that, however, it is necessary to take account of the principle of totality and in arriving at a final sentence all the factors relating to the objective criminality and all the factors relating to the subjective circumstances of the offender must be taken into account.

Consideration 21The respondent was born on 29 May 1986. At the time he committed these offences he was 22 years of age and he was 23 years of age when he commenced serving the sentence imposed for the 2008 offence. He has a juvenile record which included aggravated robbery in 2003, common assault in 2004, break and enter with intent, using an offensive weapon, common assault and larceny in 2005 and stealing from the person in 2006, traffic offences in 2008 and assault occasioning actual bodily harm in 2008. None of the above offences resulted in incarceration but he was placed on a 3 year s 9 bond in May 2008. He was on that bond at the time he committed the offences. He was given a 30 hours community service order in September 2008 for break and enter with intent. Accordingly, this is the first time he has served a gaol sentence. 22The sentencing judge referred to Dr Rowe's report and said that he "... determined that the offender had been affected with a chronic neurodevelopmental disorder from infancy associated with mild to moderate retardation and an ADD. He found the offender to be suffering from impaired language skills, verbal intellectual difficulties and an IQ which was initially assessed between 50 per cent and 55 per cent, and later between 68 per cent and 79 per cent. He was of the opinion that the offender's neurological disorder caused him to suffer significant impairment of rational understanding, comprehension, consequential thinking and judgment." 23It is clear from the reports that the respondent has significant mental health issues and I have already outlined the history relating to the question of his fitness to plead. The sentencing judge correctly regarded this material as indicating that general deterrence was a matter of less significance in this case than it might otherwise have been. 24The history of the proceedings against the respondent indicate that his period so far in custody would have been very disrupted as his mental state was assessed at various stages of the proceedings. In addition he has significant hearing problems. Moreover, through no fault of his own there has been considerable delay in getting the matter to finality in the Court. The Crown appeal was lodged promptly on 7 May 2013 but in addition to the delay the respondent has suffered in the past he now suffers the additional delay of more than 6 months from the lodging of the appeal. The effect of all the delay in this case is that the matter now comes for determination less than 5 months from a time when he is to be released from custody after serving 4 years and 9 months in custody. 25In Green v The Queen and Quinn v The Queen (2011) 244 CLR 462 at page 479 [43] in the majority judgment of Finch CJ it was said: "Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation." 26In Green v The Queen supra page 465 [1] the principle long established by the High Court was reaffirmed that the purpose of Crown appeals is: "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." 27The Court went on to say at page 477 [36]: "It does not extend to the general correction of errors made by sentencing judges. It provides a general framework within which to assess the significance of factors relevant to the exercise of the discretion." 28The High Court also said in Johnson v The Queen (2004) 205 ALR 346: " Judges at first instance should be afforded as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected." 29In this case the Crown did not appeal against the sentence for the first offence which was passed in 2010. The Crown accepted in the sentencing proceedings for these two offences that there would be substantial concurrence between the two sentences. The Crown appeal focuses on the extent of the accumulation for these offences on the 2008 offence both as to the head sentence and non-parole period. In my view, the sentencing judge carefully considered all of the subjective and objective features of the case and cannot be said to be in error in her considerations. It is not for this Court to impose another sentence simply because it believes a longer sentence should be imposed. The sentences imposed by the sentencing judge here were within the broad sentencing discretion of a sentencing judge and the challenge to them has not been made out. 30Similarly the challenge to the non-parole period does not succeed. The non-parole period fixed represents a ratio of approximately two thirds rather than the statutory ratio of 75 per cent. Bearing in mind the respondent's age, the fact he was in gaol for the first time and his mental and physical health problems that cannot be said to be an error. In R v Cramp [2004] NSWCCA at [31] it was pointed out that the adjustment of a non-parole period to reflect special circumstances raises many discretionary matters and an appellate court will be slow to intervene. 31Even if the challenges to the sentences and non-parole periods could be established it would be appropriate to exercise the discretion of this Court to dismiss the appeal because of the delay, the pending release of the respondent, the position taken by the Crown at first instance and the medical condition of the respondent. 32I would dismiss the appeal. 33R A HULME J: I agree with Blanch J. 34BELLEW J: I agree with Blanch J. 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: 25 November 2013