Quinn v The Queen (2011) 244 CLR 462
Pearce v The Queen [1998] HCA 610
Source
Original judgment source is linked above.
Catchwords
Quinn v The Queen (2011) 244 CLR 462
Pearce v The Queen [1998] HCA 610
Judgment (2 paragraphs)
[1]
Judgment
HOEBEN CJ AT CL: I agree with the conclusions of Fullerton J and RS Hulme AJ that the Crown appeal should be allowed. Regrettably, I cannot agree with the restructure of sentences and orders proposed by RS Hulme AJ. On that issue, I prefer the structure proposed by Fullerton J. Accordingly, I agree with the orders proposed by Fullerton J.
FULLERTON J: I have read the draft judgment of RS Hulme AJ and gratefully adopt his Honour's summary of the evidence led on sentence and his summary of the sentencing remarks.
However, I agree in part only with the orders his Honour proposes in the disposition of the Crown appeal. I agree that the Crown appeal should be allowed and that the respondent should be re-sentenced to an effective non-parole period of 4 years and 6 months (to commence on 5 December 2013) with a balance of term of 2 years, that is, an increase in the effective sentence imposed by the sentencing judge of 18 months (from 5 years to 6 years and 6 months) and an increase in the effective non-parole period of 1 year (from 3 years and 6 months to 4 years and 6 months).
I would propose that the appeal against the sentences imposed on both counts be allowed and that the respondent be re-sentenced on each count, with the sentence on the second count (the count that involved the assault on Louisa Vickers) to be marginally less than that imposed on the first count (the count that involved the assault on Michael Lester) and for the sentences to be accumulated by 12 months. With the sentences structured in that way, the far more serious assault on Ms Vickers and the more serious injuries that she sustained, will be reflected by an increase in sentence, but moderated by the need to ensure against double punishment, given the element of break, enter and steal common to both counts, and the need to ensure against double punishment (see Pearce v The Queen [1998] HCA 57; 194 CLR 610).
In expressing my reasons for coming to that view, I would wish to emphasise that I accept the Crown's submission that the sentences imposed by the sentencing judge on each count of 4 years and 6 months with a non-parole period of 3 years, failed to reflect his Honour's findings of "offending well above the mid-range for an offence of this kind", a finding with which the respondent's counsel on the appeal took no issue.
In his Honour's sentencing remarks it is clear that he made that finding not by making a judgment on the seriousness of an offence under s 112 of the Crimes Act 1900 (NSW) per se, a judgment that could not sensibly be made in the abstract given the range of serious indictable offences that may be committed by an offender on breaking and entering the premises, but because of the particular serious indictable offences committed in this case, namely assaults occasioning actual bodily harm, where random and unprovoked serious violence was inflicted on both victims in their own homes, with the female victim assaulted after she sought to intervene on her partner's behalf and suffering the more serious injuries in the process.
As accepted by the sentencing judge, there was nothing of any significant weight in the respondent's subjective circumstances that operated in mitigation of sentence including, significantly, no evidence of remorse other than what is implicit in the pleas of guilty. Although, as RS Hulme AJ noted at [24], Dr Teoh diagnosed a polysubstance abuse and an antisocial behaviour disorder, his report also notes that given the entries for violence on the respondent's criminal and custodial record, it appears that he has little insight into what triggers his violent conduct, including his drug use, and has little impulse control.
After giving full account to the incontrovertible fact that there is no single correct sentence in any given case, and giving full weight to the limiting considerations that govern Crown appeals, I am satisfied that the primary judge's sentencing discretion miscarried and that the sentences imposed on each count were erroneously lenient.
In considering whether the residual discretion in s 5D of the Criminal Appeal Act 1912 (NSW) should be exercised in this case, I have taken into account the submission advanced by the respondent that identifying the error in the sentencing discretion and the reason for it (in this case, the sentencing judge's failure to reflect in the sentences imposed his finding of objective seriousness and the application of the principles under s 3A of the Crimes (Sentencing Procedure) Act 1999) can, itself, achieve the objective to which Crown appeals are directed, without the need for an increase in the respondent's sentence (see Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [37]).
I have also taken into account the Crown's submission that to decline to intervene in the exercise of the residual discretion would result in sentences that are inconsistent with established sentencing principles, including the need for them both to adequately reflect the need for specific deterrence and to be a denunciation of serious physical violence inflicted on innocent members of the community in their homes by intruders.
There being no evidence relied upon by the respondent bearing on the exercise of the residual discretion (or re-sentence generally), I am satisfied that the Crown has satisfactorily addressed the submissions advanced on the respondent's behalf as to why the residual discretion should be exercised in his favour in this case (see CMB v The Attorney General (NSW) [2015] HCA 9, 243 A Crim R 282 at [36]).
The orders I propose are as follows:
1. Allow the Crown appeal.
2. Quash the sentence imposed on Count 1 and, in substitution, impose a non-parole period of 3 years and 6 months commencing on 5 December 2013 and a balance of term of 2 years expiring on 4 June 2019.
3. Quash the sentence imposed on Count 2 and, in substitution, impose a non-parole period of 3 years commencing on 4 June 2015 and a balance of term of 2 years expiring on 4 June 2020.
4. The total effective sentence will be 6 years and 6 months, to commence from 5 December 2013 and to expire 4 June 2020, comprised of a non-parole period of 4 years and 6 months also to date from 5 December 2013 with the respondent eligible to be considered for parole on 4 June 2018.
RS HULME AJ: This is a Crown appeal against sentences imposed by Solomon ADCJ on 28 August 2015 - sentences which the Crown submits are manifestly inadequate. The Respondent to the appeal had pleaded guilty to two charges, viz:
1. On 5 December 2013... (he) did break and enter the dwelling house of Louisa Vickers and Michael Lester … and then in the said dwelling house did commit a serious indictable offence namely did assault Michael Lester thereby occasioning to him actual bodily harm, in circumstances of aggravation, namely that at the time of the offence he did use corporal violence on Michael Lester.
2. On 5 December 2013... (he) did break and enter the dwelling house of Louisa Vickers and Michael Lester … and then in the said dwelling house did commit a serious indictable offence namely did assault Louisa Vickers thereby occasioning to her actual bodily harm, in circumstances of aggravation, namely that at the time of the offence he did use corporal violence on Louisa Vickers.
For the first of these offences his Honour imposed a total term of imprisonment of 4 years 6 months including a non-parole period of 3 years, commencing 5 June 2014. For the second offence his Honour imposed a total term of imprisonment of 4 years 6 months with a non-parole period of 3 years, commencing 5 December 2013. The total effective term was therefore 5 years, with a non-parole period of 3 years 6 months.
Each offence arose pursuant to s 112(2) of the Crimes Act 1900 (NSW) and rendered the Respondent liable to imprisonment for 20 years. For offences under the sub-section, a standard non-parole period of 5 years has been prescribed - see Crimes (Sentencing Procedure) Act, 1999 (NSW) s 54A et seq.
The Respondent entered his guilty pleas on the first day of his trial. His Honour allowed a discount of "some 10%" to reflect the utilitarian value of those pleas.
The agreed facts of the offences were that at about 9pm on 5 December 2013 the Respondent and another man entered the house of the victims through the closed unlocked front door. Upon entering the premises the Respondent went straight to the bedroom where Michael Lester was, and assaulted him by punching him repeatedly to the face and body with great force. When Mr Lester had been knocked to the ground, the Respondent continued to punch him to the head.
Louisa Vickers entered the bedroom and attempted to intervene. The Respondent turned on her and punched her several times to the face, then pushed her backwards into a glass wardrobe with such force that it shattered. The Respondent again punched her to the face, before taking hold of her hair and dragging her across the room. The Respondent continued to kick and punch her as she lay on the floor.
At this point Michael Lester feared that the Respondent might kill Ms Vickers. Mr Lester picked up a knife from the floor (which Ms Vickers had been using in the kitchen prior to the attack) and stabbed the Respondent in the back. Ms Vickers fled the house to raise the alarm. A short while later the Respondent and his co-offender also left the house.
The force of the assaults was such that Mr Lester sustained injuries that included: a 10mm laceration to the inside of his lower lip; swelling above the right eye; lacerations to the face; swelling and tenderness to his right hand; a small avulsion fracture to the base of his right middle finger; 40mm diameter bruising to the left torso; a fracture to his nose; and a small fracture to his left 10th rib. He also suffered a septal deviation and a small step fracture to his right nasal bone. Mr Lester subsequently required surgery to correct the deviated septum.
Ms Vickers' injuries included: a comminuted fracture of the nasal bones deviated left; a blow out fracture of the floor of the right orbital eye socket (which did not require surgery); extensive bruising to the right eye area; swelling to her face; various lacerations, bruises and grazes; undisplaced fracture to anterior of left second rib; and vertigo. Ms Vickers also suffered a bald patch where a clump of her hair was pulled out. She required surgery for a closed reduction of her nasal bones, and has ongoing dental treatment to re-align her bite which was pushed out of shape. The bodily harm occasioned was serious but not grievous. A victim impact statement indicates that not all of the consequences of the assault on her have resolved.
Prior to the attack the victims were completely unknown to the Respondent. There was no evidence of any motive although it seems clear that the attack was inspired at least significantly in consequence of the Respondent having ingested ice earlier in the day, as he informed a nurse at the hospital where he presented later that night for medical treatment for a stab wound. There he was arrested. On 6 December 2013 he was released from the hospital and into police custody. He has been in custody ever since.
Turning to subjective factors, the Respondent was born in 1986. He has a substantial record of offending including four offences of assault, three of robbery, two of driving whilst disqualified and at least three involving drugs. He has offended numerous times over the years whilst in custody, two of these offences being of fighting or participating in other physical combat since his arrest for the subject offences. For some of the assault and robbery offences he has been imprisoned.
A report of Dr Ben Teoh, psychiatrist, was tendered on sentence. Dr Teoh recorded that the Respondent was rebellious from a young age, he was beaten up regularly by his father, he started using drugs at age 15, commenced using heroin at age 18, and at the time of interview had been using methamphetamine for 5 years. Dr Teoh diagnosed the Respondent's presentation as consistent with poly-substance abuse and antisocial behaviour disorder. The doctor recorded that the Respondent "said he could not control his impulses, and it was like 'instinct' for his aggressive behaviour" and that the Respondent was intoxicated with methamphetamine at the time of the offence.
The Respondent has not had any rehabilitation for his drug use apart from a time while in custody in 2005, and has not received any treatment for his Antisocial Personality Disorder.
The only evidence that could be regarded as significantly favourable to the Respondent was a letter from a younger sister who said that she was a training youth worker and spoke of instances when the Respondent displayed decency and serious remorse for some of his actions. She described the Respondent as "lost" and opined that he needed professional assistance for rehabilitation.
Solomon ADCJ described the offences as "well above the mid-range for offences of this kind".
A judgment as to the seriousness of an offence under s 112 of the Crimes Act is by no means easy. The section makes it an offence to break and enter a building and commit any serious indictable offence therein (my emphasis). In the Respondent's case the serious indictable offence was an assault occasioning actual bodily harm - an offence which under s 59 and considered in isolation carries a maximum penalty of 5 years' imprisonment or, if committed in company, 7 years' imprisonment. There are many and much more serious indictable offences, including, for example robbery where, under s94 of the Act the maximum penalty unless the offence is aggravated is 14 years, detaining for advantage where under s 86 the maximum penalty is 14 years imprisonment or, if committed in circumstances of aggravation 20 years imprisonment, and causing grievous bodily harm with intent to do so where, under s 33, the maximum penalty is 25 years. S 112 prescribes the same maximum penalties whichever of these offences is the serious indictable offence committed.
Although by the terms of s 54A et seq of the Crimes (Sentencing Procedure) Act, 1999 (NSW) Parliament requires that it be done, the breadth of the "serious offence(s)" also makes it practically impossible to make any sensible judgment as to where, in the words of s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the "middle range of seriousness" falls. Because s 112 encompasses circumstances where the serious offence involves, for example, detention for advantage in circumstances of aggravation or both actual and intent to inflict grievous bodily harm, any judgment under those sections of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires that such offences be taken into account.
In this Court both counsel accepted Solomon ADCJ's finding that the offences were both "well above the mid-range for an offence of this kind" - i.e. falling within s 112(2). In light of the considerations referred to in the immediately preceding paragraphs and to which his Honour seems to have given no consideration I have considerable doubt whether the conclusion was correct but given the common approach of counsel I am content to act upon the basis of it.
That said, the criminality involved in each of the assaults leads to the view that they fell at or very close to the top of the range of offences of assaults occasioning actual bodily harm for which, under s 59(1) a maximum penalty of 5 years imprisonment is prescribed. Given that the fact that the Respondent's offences were committed in company is one of the aggravating circumstances identified for offences under s 112, and even though it was not that specified in the charges brought against the Respondent, I do not regard it as appropriate to judge the Respondent's assault by the terms of aggravated assault in s 59(2).
Subject to a qualification dealt with below, the breaking and entering were also elements of criminality that were required to be reflected in the sentences imposed. The severity of the assault combined with and the breaking and entering, the fact that the property broken into was the victims' home and the fact that the offences were committed in company makes it impossible to regard the Respondent's offences as anywhere near the bottom of the scale of offences under s 112(2). As I have said, I regard the assault occasioning actual bodily harm component as very close to the top of offences of assaults occasioning actual bodily harm.
Another matter to which no particular attention was given in the Court below was the fact that the Respondent's one incident of breaking and entering was a feature of both of the offences charged. In Pearce v The Queen [1998] HCA 610; 194 CLR 610 at [43] - [49] the majority of the High Court made clear that where offences have a common element the offender must not be twice punished for that element. The identity in the duration of the sentences imposed on the Respondent indicates that no attention was paid to these dictates of the High Court. Of course the extent of concurrency of the sentences may in part have been intended to ensure, and certainly had the effect of ensuring that, as a practical matter double punishment did not occur but, as the High Court made clear, the concurrency of sentences is not the way that double punishment should be avoided.
I turn then to the sentencing considerations to which attention must be given. General deterrence is important. The Courts are aware that there are far too many home-invasion type offences and far too many instances of unprovoked violence by those affected by ice.
Specific deterrence must be given weight. The Respondent's record and the instant offences show that he has not learnt the error of his ways and it needs to be demonstrated to him that any reversion to ice or assaulting people will have consequences detrimental to him.
The community needs protection from the Respondent. This is demonstrated not only by his criminal record and his statement to Dr Teoh that he could not control his impulses but also by his addiction to methamphetamine and other drugs. In practical terms he cannot pay for such an addiction except by crime and his methamphetamine addiction is calculated to provoke instances of violence. (In saying what I have in this paragraph I do not forget the limits of the weight that can be placed on this topic of protection of the community - see Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 473).
Given that the Respondent has had no treatment for his antisocial personality disorder and no treatment outside prison for his addiction and given that he does not seem to have imbibed any of the mores of the law abiding members of the community there is much to be said for the view that his rehabilitation argues for a longer rather than a shorter time in prison.
The community and the victims are entitled to retribution.
While I appreciate that the Respondent falls to be sentenced for an offence under s 112(2) of the Crimes Act 1900 (NSW), given the serious indictable offence involved was one under s 59 of that Act, regard may be had to it. If I was considering only the assault component under s 59, I would impose a sentence of 4 ½ years. The breaking and entering requires that that figure be increased and, subject to the qualification for which Pearce v The Queen is authority, in my view the starting point for each of Respondent's sentences for each offence should have been be not less than 6½ years. An "about 10%" discount would result in a sentence of 5 years and 10 months.
There is no occasion in these reasons to dilate upon the tests for determining whether a sentence is manifestly inadequate. I shall content myself with inquiring whether those imposed by Solomon ADCJ were unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence - see R v JP [2015] NSWCCA 267 at [43].
By that standard, particularly given the discretion imposed on sentencing judges, the sentences of 4 ½ years, although very lenient cannot, considered individually, be said to be manifestly inadequate in their length.
However accumulating the sentences by only 6 months as his Honour did was manifestly inadequate. As this Court said in Regina v Dunn [2004] NSWCCA 41 at [50] "There is a distinct difference between assaulting one victim and assaulting two." Even when regard is had to principles of totality such a small increase in sentence for the second and more serious assault, on a second victim, cannot be justified.
Should this Court interfere?
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1] French CJ, Crennan and Kiefel JJ observed that the primary purpose of Crown appeals against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The 6 months increase in this case was a clear breach of the principles that should apply in the case of offences of the seriousness of the Respondents. Furthermore, I regard it as so inadequate as to amount to "an affront to the administration of justice which risks undermining public confidence in the criminal justice system." Green & Quinn at [42] See also R v Van Ryn [2016] NSWCCA 1 at [282]; R v Feuerstein [2015] NSWCCA 82 at [65].
In my view both of these factors argue convincingly for the Court interfering in this case.
I have indicated that each offence, considered individually, merited a sentence of not less than 4½ years but, considered in conjunction, the sentence for the second assault should have not included any component for the features of breaking and entering. Giving effect to that last conclusion would mean reducing one of the Respondent's sentences which is not appropriate when the only matter before the Court is a Crown appeal and, given that an appropriate result and substantial justice can be achieved by adopting Solomon ADCJ's approach of making the sentences concurrent, that is the course which I would propose
In that the Respondent's overall sentence is to be increased because of the sentence for the second offence, some allowance has to be made for totality. The fact of accumulation constitutes special circumstances.
In the result I would propose the following orders:
1. Grant leave to appeal.
2. Dismiss the appeal in respect of the sentence imposed in respect of the offence perpetrated against Louisa Vickers.
3. Allow the appeal in respect of the sentence for the offence perpetrated against Michael Lester.
4. In lieu thereof sentence the Respondent to a non-parole period of 2½ years commencing on 5 December 2015 and a balance of term of 2 years commencing on 5 June 2018.
5. Record as the date upon which it appears to the Court that the Respondent shall become eligible for parole 4 June 2018.
The effective total sentence will thus be of 6½ years (from 5 December 2013 to 4 June 2020) including a non-parole period of 4½ years (from 5 December 2013 to 4 June 2018).
[2]
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Decision last updated: 18 March 2016