R v Morgan

As to remarks made in the case of R v Fernando, they were not intended as an exhaustive statement of sentencing practice, or as justifying any special leniency in relation to aboriginal offenders. They were however, intended to reflect an understanding of some of the factors which can lead a person of this racial background into offending behaviour and may be particularly relevant for persons from remote parts of the country, and who have particularly disadvantaged backgrounds, nor when the offence is alcohol related. As the appellant was not from a remote community nor were the offences alcohol related, considerations of this type added little to the current sentencing exercise

Whilst the use of Judicial Commission statistics may be helpful in showing sentencing patterns, they need to be approached with caution, as they cover a wide range of cases involving offences with varying objective circumstances, and offenders with quite different subjective circumstances. If a comparison is to be made, it needs to be made by reference to the final sentence and not to the assumed starting points.

The total effective non-parole period was six years and the total sentence was seven years and six months. It is clear that this ratio did not reflect his Honour's finding of special circumstances or his assessment that the case needed to be structured to allow a realistic period of supervision upon the applicant's release from custody.

Orders:

1. Leave to appeal granted.
2. Robbery in company: sentence of fixed term of imprisonment for three years and six months confirmed.
3. Assault occasioning actual bodily harm: sentence of a fixed term of imprisonment for two years and six months confirmed.
4. Sentence for the offence of break and enter with intent be quashed, and in lieu a sentence of imprisonment for three years and six months with a non parole period of eighteen months. IN THE COURT OF CRIMINAL APPEAL 60356/02

WOOD CJ at CL SIMPSON J ADAMS J

Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against sentences which were imposed upon him by his Honour Judge Coolahan at the Newcastle District Court, following pleas which had been entered in the Local Court, to charges of robbery in company (an offence for which the maximum available penalty is imprisonment for 20 years), break and enter with intent (an offence for which the maximum available penalty is 7 years imprisonment), and assault occasioning actual bodily harm (an offence for which the maximum available penalty is 5 years imprisonment). Facts

2 The robbery in company was committed in the early hours of 19 April 2001. The victim, who had left a hotel for some fresh air, was set upon by the applicant and a companion, and knocked to the ground. He was then relieved of his wallet, which had contained $1200. He received swelling and bruising to his eyes as well as abrasions. The appellant was arrested soon after but was released. He was later charged with the offence on 23 October 2001, by which time a "match" had been found between the DNA of the victim and blood found on the applicant's clothing. 3 The break and enter with intent and the assault occasioning actual bodily harm offences occurred on the evening of 17 July 2001. On that occasion, the applicant arrived at premises occupied by two men. He accused one of the men of spending time with his girlfriend before head butting and slapping him. He obtained a kitchen knife and forced the other man to undress and lie motionless on the floor. He repeatedly threatened to cut him up. During the course of this assault, the appellant repeatedly swung the knife at the victim cutting his hands, slashing his fingers, back and eyebrow; and on other occasions he held a knife to his throat and nose. He also stomped on his face with his boot. The victim was later seen to have sustained lacerations to his hands, back and eyebrows. 4 The applicant forced each victim to accompany him in a stolen car. After a while the first victim managed to escape, but the second victim was forced to remain with the applicant until his arrest on following day. 5 His Honour categorised these offences as serious, and observed that those involved in the second incident fell towards the highest end of the scale of criminality for offences of their kind. In relation to the victim, who was forced to the floor and assaulted, his Honour said that this was a "prolonged attack upon the victim, obviously designed to induce in him a high amount of fear." Counsel for the applicant conceded that these remarks were amply justified, as indeed they were, for the reasons referred to in R v Sweetman [2000] NSWCCA 228. The seriousness of the offences was also aggravated by the circumstance that the applicant had been at conditional liberty on parole in relation to sentences imposed for offences of robbery, burglary and assault: R v Readman (1990) 47 A Crim R 181. 6 Before turning to the grounds of appeal it may be noted that the applicant's subjective circumstances, as placed before his Honour, were not favourable, although to large extent they were due to his impoverished background, and destructive family history, those being matters for which he had not personally been responsible. 7 The applicant is of Aboriginal background, being the second of five children who had been brought up near Shepparton in Victoria. His father who had been described as "intimidating, violent and alcohol dependent", had spent his life largely unemployed and often in gaol. The applicant, when a small boy, had seen one of his brothers die when he was struck by a car. His school attendance had been poor because of repeated flights from home, to avoid his abusive father, and he had been given to truanting and to experimenting with drugs and alcohol. These events led to his expulsion from school, and his descent into a downward spiral, which closed off any opportunity that he may have had to develop his claimed athletic abilities. 8 As a result of these experiences he had spent a good part of his early life in boys homes or correctional centres. By the time he appeared for sentence he had collected an appalling record, which included multiple convictions for robbery, including armed robbery, burglary, assault, resist police, intimidate police in the execution of their duty, drug offences, escape, and serious motoring offences. He has two children from prior relationships, although these relationships had broken up because of his substance abuse. He had participated in some drug counselling while in prison, but there has been little opportunity for any consistent or focused drug rehabilitation program to be provided to him. 9 Following his last release from prison, he had received a significant sum of money by way of compensation for a motor vehicle accident. He had moved to Sydney in January 2001 with the intention of commencing a new life, but regrettably, had ended up squandering most of the money on drugs, alcohol and gambling. He informed the sentencing judge that he was now starting to mature and was "ready to move on" and to change his lifestyle. Whether they were empty words learned from prior experience with the justice system is perhaps questionable, but his Honour appears to have accepted them as an indication of him having developed some insight, as well as an appreciation of the need to amend his ways. I see no reason why we should come to a different view, although, like his Honour, I similarly doubt his resolve to achieve any real change. 10 In sentencing the applicant his Honour observed:

"in relation to all offences, I take into account on behalf of the offender, his pleas of guilty, which I am satisfied were entered at the first available opportunity, but which it seems to me were entered in the face of strong Crown cases. Further, I could not say that the pleas were evidence of any remorse on the part of the offender for his actions. I take into account also the Fernando considerations. Taking all these factors into account, it seems to me that an appropriate discount, both for the pleas and the Fernando considerations, is 25%."

11 After a review of the objective and subjective considerations, his Honour announced the sentences which he initially considered were appropriate, as follows: "So far as the offence of robbery in company is concerned, I am of the view that the appropriate sentence in relation to this matter is one of six years imprisonment. The sentence should commence on the date from which the offender has been in custody, solely in relation to these matters, that is 17 November 2001. ... So far as the offence of break and enter with intent, and taking into account the Form One matters, it is my view that the sentence in relation to that matter should be one of four years. So far as a sentence in respect of the offence of assault occasioning actual bodily harm is concerned, I am of the view that the sentence in relation to that matter should be one of three and a half years. Those sentences should, in the normal course of events be served concurrently, as they both arose out of the one incident, and should be cumulative upon the non-parole period fixed for the sentence in relation to the robbery matter." The non-parole periods which he considered as appropriate for those offences was not identified. 12 When his Honour came to structure the final sentencing order, taking into account the need for some accumulation to reflect the totality of the criminality involved, and also the need for there to be an adequate period of post release supervision on parole, he said: "It seems to me, in this case, that I should find that there are special circumstances to overcome the effect of the accumulation of the sentences. I say this because of the submissions made by Mr Rosser. It may well be that on the expiration of the non-parole period, the offender will have a resolve to obtain rehabilitation and to remain drug and crime free. It would obviously be in everyone's interest if he were given every opportunity to so. It seems to me that the best way of structuring the sentences so as to, on the one hand comply with the principles set out by the High Court in Pearce , and on the other provide the offender with a realistic period of supervision on his release from custody, and also whilst reflecting the objective seriousness of the offences, is to impose a sentence comprising a fixed term of 3 and a half years in relation to the robbery offence, and a sentence of four years in relation to the offence of break and enter with intent, taking into account the Form One matters, and with a non-parole period of two and a half years and a sentence of a fixed term of two and a half years in relation to the assault occasioning actual bodily harm."

13 The final sentencing order was as follows: (a) Robbery in company - fixed term of imprisonment for three years and six months, to commence on 17 November 2001 and to expire on 16 May 2005; (b) Assault occasioning actual bodily harm - fixed term of imprisonment for two years and six months, to commence on 17 May 2005 and to expire on 16 November 2007. (c) Break and enter with intent - imprisonment for four years, taking into account 4 offences on a Form 1, to commence, similarly, on 17 May 2005 and to expire on 16 May 2009, with a non-parole period of two and a half years, also to commence on 17 May 2005 and to expire on 16 November 2007.

14 The first of these sentences was directed to commence on 17 November 2001, notwithstanding the fact that the applicant had been held in custody, since his arrest on 18 July 2001, for two of the present offences. That related to the circumstance that he had, in the meantime, been sentenced, in the Local Court on 19 July 2001, to terms of imprisonment for two months and four months respectively, commencing from 18 July 2001, the longer of which expire on 17 November 2001.

15 The effect of his Honour's order was accordingly to impose a total sentence of imprisonment for seven years and six months with a non-parole period of six years, following upon an earlier unbroken period of custody of four months.

Discount for plea of guilty and Fernando considerations 16 It was submitted that his Honour fell into error insofar as he made reference to the strength of the Crown case in the context of the discount for the plea, which it may be accepted, was an early plea. 17 It is true that the strength of the Crown case is not a relevant consideration in the quantification of the discount for the utilitarian value of a plea: R v Carter [2001] NSWCCA 245; R v Lo [2001] NSWCCA 271 and R v Parkinson [2001] NSWCCA 244. On the other hand a recognition of the inevitable, in the face of a strong Crown case, may be less indicative of remorse. If this was what his Honour had in mind then error has not been shown. 18 It was however submitted that the combination of the early plea and the "Fernando considerations" should have attracted a discount above the 25% given, with the consequence either that his Honour had inappropriately discounted the utilitarian value of the plea by reference to the strength of the Crown case, or that he had paid only lip service to the "Fernando considerations". 19 His Honour did not explain the manner in which the "Fernando considerations" were applied, beyond noting that they had been taken into account. The reference in this passage of the judgment was to my decision in R v Fernando (1992) 76 A Crim R 58, where (at 62 to 63) I outlined a number of propositions of relevance for the sentencing of an aboriginal offender, as follows: "(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group. (B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender. (C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. (D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment. (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. (F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender. (G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality. (H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."

20 As has been made clear by subsequent decisions, these remarks were not intended as an exhaustive statement of sentencing practice, or as justifying any special leniency in relation to offenders of the class to whom they applied: R v Hickey NSWCCA 27 September 1994, R v Ceissman [2001] NSWCCA 73 and R v Pitt [2001] 156. 21 Rather they were intended to reflect an understanding of some of the factors which can lead a person of this racial background into offending behaviour, and which, in appropriate cases, may have a particular relevance for the way in which a sentencing order may suitably be framed. They can have also a particular relevance for persons appearing before the courts who come from remote parts of the country, and who have particularly disadvantaged backgrounds, or when the offence is alcohol-related. 22 The present offences were not alcohol-related and the appellant did not come from a remote community, nor was he unfamiliar with the justice system. While the "Fernando considerations" could properly be taken into account, they added little to the present sentencing exercise beyond those matters which would otherwise have been taken into account, for any offender, as subjective circumstances. They were not favourable, but they did point to the need for a sentence that took into account the rehabilitative aspects, particularly in relation to post release supervision and assistance. 23 Moreover it is not the case that a plea of guilty will inevitably attract the discount of 25% spoken of in R v Thomson & Houlton (2000) 49 NSWLR 383. The Court there referred to a "range of 10 to 25%", noted that the timing of the plea was an important consideration, and also referred to the circumstance that, in some cases, the nature of the offence, and considerations such as the protection of the public, may lead to a lesser discount, or indeed to no discount at all. 24 It is an error to assume that an early plea will automatically attract a 25% discount for utilitarian considerations. This ground has not been made good.

Sentence excessive 25 It was submitted, upon the assumption that a 25% discount had been given before his Honour specified the sentences initially considered appropriate, that the starting point for each must have been excessive. In the case of the robbery, it was submitted that the starting point before the discount must have been eight years, while that for the assault, and break and enter with intent offences must have been four years and eight months, and five years respectively. 26 When compared with the Judicial Commission statistics, encompassing all offenders, it was submitted that such starting point sentences were well out of range. The difficulty with that submission is that these statistics cover a wide range of cases involving offences with varying objective circumstances, and offenders with quite different subjective circumstances. Some have been cases dealt with after conviction at trial. Not all have involved offenders with a record as bad as that of the applicant, or offences by persons while on parole. 27 Moreover, a comparison, if it is to be made at all, needs to be made by reference to the final sentence and not to the assumed starting point. In that regard, the fixed term for the robbery offence fell towards the top 10% of the statistical range of non-parole periods for that offence; that for the assault fell at the very top of the range for minimum terms. The head sentence for the break and enter with intent offence similarly fell at the top of the range. As this Court has pointed out, more than once, these statistics can be relevant as showing sentencing patterns, but they need to be approached with caution. They do not have the effect of reducing sentencing to a mathematical exercise, for example by selecting a median sentence or by confining a judge within the range which they may reflect. Ultimately the range is set by reference to the maximum available sentence, and by an assessment of the objective circumstances of the offence before the court and the subjective circumstances of the offender. 28 Furthermore as Gleeson CJ and Hayne JJ observed in Dinsdale v The Queen (2000) 202 CLR 321: [6] Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case. … [22] In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been 'upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance ... Was the sentence 'manifestly wrong'?' See House v The King (1936) 55 CLR 499 at 505."

29 Whether the present case falls within the category of case where some sentence other than that imposed, was warranted in law and should have been imposed (R v Simpson (2001) 53 NSWLR 704) is a matter to which I shall return. Form 1 Offences 30 Two of the four offences taken into account on the Form 1 were recorded as having been committed on or about 4 November 2000 and involved larceny of a motor vehicle and driving while unlicensed. 31 It now emerges that at this time the applicant had been held in prison in Victoria and could not have committed either offence. The Crown accepted that they were not properly taken into account, but submitted that eliminating them did not necessarily mean that the sentence imposed for the offence of break and enter with intent was excessive. 32 Prima facie, however, assuming that his Honour applied the decision in Attorney General's Application Under Section 37 of the Crimes (Sentencing procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518, the sentence imposed would have included some additional punishment for them. 33 Whether the sentence for this offence was excessive needs to be considered afresh, by reference to its facts and usual sentencing principles, although confining the Form 1 offences to the two remaining offences. They were recorded as having been committed on 17 July 2001, and involved the offences of larceny of a motor vehicle and assault, which were directly associated with the offence of break and enter with intent, the assault having been committed on the first victim, and the larceny being of the motor vehicle in which the second victim was held captive. Totality and non-parole period 34 As I have observed his Honour considered it appropriate to give effect to the totality principle by converting the sentence for the robbery to a fixed term of three and a half years; by allowing an accumulation of four and half years for the remaining sentences; and by then sentencing the applicant to concurrent sentences for the offences of assault occasioning actual bodily harm (fixed term of two years and six months), and break and enter with intent, (four years with a non-parole period of two and a half years). The non-parole period was accumulated upon the fixed term for the robbery offence. 35 While special circumstances were found justifying a reduction in the statutory ratio between the non-parole period and the sentence for the break and enter with intent offence to one of 62.5%, the ratio between the total effective non-parole period of six years and the total sentence of seven years and six months was one of 80%. That was in excess of the statutory ratio of 75%, and it is, accordingly, clear that the ultimate sentencing exercise did not reflect his Honour's finding of special circumstances or his assessment that the case was one where there was a need to structure the sentence so as to allow the applicant a "realistic period of supervision upon his release from custody". 36 The need for that to be taken into account was only increased by the fact that these sentences had followed immediately upon an additional period of imprisonment of four months. That had in turn followed upon sentences imposed in Victoria on 30 January 1998 totalling six years imprisonment with a non-parole period of four years. The precise release date was not known, but it appears that some 390 days of those sentences had already been served before they were announced, with the consequence that the applicant was, most probably, released towards the end of the year 2000 or early 2001, a matter which tends to be confirmed by the fact that he was dealt with in the Newcastle Court and Fairfield Local Court for various offences, before the present offences, which had charge dates in April 2001. 37 Error having been shown, it is necessary to review the matter, taking into account the additional evidence tendered in relation to the applicant's subjective circumstances. 38 They show that since being in custody, he has completed courses in anger management, communication skills and aboriginal studies. For some of the time that he has been held at Goulburn gaol he has been held in protective custody, following various assaults committed upon him, a circumstance that would lead to his imprisonment being more onerous than it might otherwise have been. Whether that situation is maintained will depend upon whether or not he is moved to another prison, and also upon his compliance with prison regulations and co-operation with prison staff. 39 A report has been placed before us from Greg Fathers which is to similar effect to the report of Dr Jonathan Carne which was before his Honour, but which goes somewhat further so far as it indicates that the applicant had an ongoing psychological disability associated with his dysfunctional background, and probable brain damage resulting from his history of chronic substance abuse, and of being involved in many fights as well as a motor vehicle accident. He considered him in need of psychiatric and neurological assessment and possible treatment, and also thought that he needed assessment of, and entry into, a suitable rehabilitation program for his substance abuse problems. 40 These matters do need to be taken into account as special circumstances, along with the fact of the accumulation of the present sentences upon each other, and upon earlier periods of imprisonment, which with a short break have seen him in prison in Victoria and in this State almost continually for a period in excess of six years. 41 The robbery in company offence did fall within the somewhat routine category of offences of that kind. Nevertheless it was serious, and it was such that the guideline in R v Henry (1999) 46 NSWLR 346 was applicable, with the aggravated circumstances that the applicant had a substantial criminal history, and that some violence was inflicted. The assault occasioning actual bodily harm offence fell within the upper range of seriousness for that offence, and it was necessary, when his Honour sentenced the applicant for it, that some additional punishment be attached to the two Form 1 offences which were tied up with it. 42 There was clearly a need for there to be an accumulation of the sentences since the first offence was unrelated to, and separate in time, from the second and third offences. Moreover I considered that there needs to be an accumulation of the sentences for the break and enter with intent, and the assault occasioning actual bodily harm offences, to reflect the gross total criminality which they displayed. 43 The elements of punishment, retribution, and general and personal deterrence were all important factors in the present sentencing exercise.

44 I would, accordingly propose the following orders: 1. Leave to appeal granted. 2. Robbery in company: sentence of a fixed term of imprisonment for three years and six months, to commence on 17 November 2001, and to expire on 16 May 2005, confirmed. 3. Assault occasioning actual bodily harm: sentences of fixed term of imprisonment for two years and six months confirmed, but such term be directed to commence on 17 May 2003 rather than on 17 May 2005 and to expire on 16 November 2005. 4. Sentence for the offence of break and enter with intent, taking into account only the last two matters on the Form 1, be quashed, and in lieu that the appellant be sentenced to imprisonment for three years and six months to commence on 17 May 2004 and to expire on 16 November 2007, with a non-parole period of 18 months to commence on 17 May 2004 and to expire on 16 November 2005.

45 Upon that basis that the effective sentence would be one of imprisonment for six years with an effective non-parole period of four years. I would direct that the sentences for the robbery and assault occasioning actual bodily harm offence be served by way of fixed terms as they will be wholly absorbed in the effective non-parole period for the remaining offences. The earliest parole release eligibility date would then be 16 November 2005. 46 SIMPSON J: I agree with Wood CJ at CL. 47 ADAMS J: I also agree with Wood CJ at CL. 48 WOOD CJ at CL: The orders of the Court are:

1. Leave to appeal granted. 2. Robbery in company: sentence of a fixed term of imprisonment for three years and six months, to commence on 17 November 2001, and to expire on 16 May 2005, confirmed. 3. Assault occasioning actual bodily harm: sentences of fixed term of imprisonment for two years and six months confirmed, but such term be directed to commence on 17 May 2003 rather than on 17 May 2005 and to expire on 16 November 2005. 4. Sentence for the offence of break and enter with intent, taking into account only the last two matters on the Form 1, be quashed, and in lieu that the appellant be sentenced to imprisonment for three years and six months to commence on 17 May 2004 and to expire on 16 November 2007, with a non-parole period of 18 months to commence on 17 May 2004 and to expire on 16 November 2005. **********

Last Modified: 09/02/2003 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.