R v Nicholson

COUNSEL: P Leask - Crown J Manuel - Respondent

SOLICITORS: S Kavanagh - Crown S O'Connor - Respondent

IN THE COURT OF CRIMINAL APPEAL 2007/13398

BEAZLEY JA HOWIE J HISLOP J

WEDNESDAY 5 MAY 2010 REGINA v Roy William NICHOLSON Judgment 1 BEAZLEY JA: I agree with Howie J 2 HOWIE J: This is a Crown appeal against a sentence imposed upon the respondent for an offence of malicious wounding with intent to cause grievous bodily harm. That is an offence contrary to s 33 of the Crimes Act for which there is a maximum penalty prescribed of imprisonment for 25 years and a standard non-parole period of 7 years. On 22 May 2009 Judge English ("the Judge") sentenced the respondent to a term of imprisonment with a non-parole period of 4 years, 4 months and 16 days from 7 June 2006 with a balance of term of 1 year 5 months and 26 days. The respondent is eligible for release to parole on 22 November 2010. 3 The Notice of Appeal was originally filed on 29 June 2009. An amended Notice of Appeal was filed on 30 March 2010. The further notice was filed as a consequence of what was said by this Court in R v JW [2010] NSWCCA 49 about the propriety of the Crown filing a Notice of Appeal without stating grounds of appeal. No point was taken by the respondent about the procedural aspects of the Crown appeal. 4 The grounds stated in the Amended Notice are as follows: 1. The sentencing judge erred by failing to properly assess the objective seriousness of the offence.

2. The sentencing judge failed to pay due regard to the principles in Veen v The Queen [No 2] (1988) 164 CLR 465.

3. The sentencing judge erred by giving undue weight to the plea of guilty.

4. The sentencing judge erred by failing properly to take into account the need for specific deterrence.

5. The sentence is manifestly inadequate. 5 The respondent was arraigned on an indictment alleging in the first count that he wounded the victim with intent to murder her and in the second count, as an alternative to the first, that he maliciously wounded her with intent to do grievous bodily harm. The respondent pleaded not guilty to the first count but guilty to the second count. The Crown accepted that plea in full discharge of the indictment. 6 There was an agreed set of facts. They can be summarised briefly. The respondent and his victim had known each other for 8 or 9 months. She had once been in a relationship with the respondent's brother. She did not want to commit to a relationship with the respondent and they were each free to see other people. 7 On 6 June 2006 the victim attended the respondent's flat where she told him she would not stay the night as she was meeting a friend named Bill. The respondent became angry but he walked her to where she was to meet Bill. He eventually arrived and was introduced to the respondent. After a short conversation, the victim and Bill left in his vehicle. The respondent asked the victim to call him when she arrived at Bill's place. 8 The next morning the victim awoke to find that the respondent had attempted to phone her 21 times and sent her four text messages. Eventually the respondent phoned her and wanted to know where she was. They argued and she hung up. There were a few more telephone conversations that morning but each time the respondent became angry and the victim terminated the call. There were a number of calls between the two during the morning. During one call the respondent threatened her and asked if she were going to call the police. She said she would not and the respondent told her to ring him after she had left her doctor's appointment and was on the train. After leaving the surgery and while she was walking to the station, the respondent rang to ask where she was. She told him. 9 When she walked off the platform at Kingswood Station, the victim saw the respondent crossing the road. He met and asked her to come with him for a talk. She declined. They walked together towards the respondent's flat until the victim said she did not want to go to his premises. The respondent then put his left arm around the victim and she began to struggle. He produced a knife about 15cm in length and stabbed the victim just below the left breast. 10 Bystanders saw what was occurring but the respondent warned them off. One of them reported the incident to staff at the station. The station manager saw the victim covered in blood and she complained that she had been stabbed a number of times. The respondent was seen walking across a street talking on a mobile phone. He saw two women and said, "Sorry girls I just stabbed my girlfriend". A short time later the respondent was arrested. He participated in an interview and admitted having stabbed the victim. 11 The victim was taken to hospital. She had three stab wounds to the chest all about one centimetre in length. One stab wound was more serious causing her lung to collapse partly with bleeding into her thorax. She had a stab wound to the right loin and a laceration to her temple. She underwent surgery but was released from hospital on 9 June, just three days after the stabbing. She was off work recuperating for about a fortnight. She has suffered mental trauma as a result of the attack and has received treatment for Post Traumatic Stress Disorder and depression. The attack has affected her much more mentally than physically. 12 The respondent was aged 44 years with a long criminal record dating back to 1973 mostly for driving matters and dishonesty. In 1982 he was imprisoned for 6 months for assault occasioning actual bodily harm. In 1988 he was imprisoned for armed robbery and discharging a firearm to avoid arrest. In 1989 he was sentenced to imprisonment for 8 years with a non-parole period of 6 years for malicious wounding with intent to cause grievous bodily harm. In 1993 he received short sentences for two assaults. 13 Of most concern is the fact that on 20 June 2005 he was sentenced in the Local Court for malicious wounding. He was given the benefit of a suspended sentence for 12 months. He was on a bond in connection with that sentence when he committed the present offence. Notwithstanding that the respondent pleaded guilty to the offence with which the Court is concerned on 17 November 2008, nothing was done to bring him before the Local Court for the offence in respect of which sentence had been suspended. The Judge sentenced the respondent in May 2009 when the matter in the Local Court was still outstanding. After he was sentenced, the respondent was brought before the Local Court and the bond was revoked. The sentence then took effect but it was to be served concurrently with the sentence imposed by the Judge as the Local Court had no power to accumulate the sentence on that imposed in the District Court. 14 I fail to understand why the Crown took no step to have the respondent brought before the Local Court so that he could be dealt with in respect of the suspended sentence of 18 months before he was sentenced in the District Court. Someone on the prosecution side must have known of the respondent's record and the outstanding bond. It was certainly known at the time of the sentencing proceedings for the current offence. I do not understand why the Judge would sentence the respondent knowing of the outstanding matter in the Local Court or that the prosecutor would permit her to do so. In my opinion her Honour should have refused to pass sentence on the respondent until he had been taken before the magistrate because the inevitable consequence of sentencing the respondent with the bond outstanding was that the sentence in the Local Court would be served concurrently with the sentence imposed in the District Court. Yet they were distinct offences and the sentence imposed in the District Court should have been made cumulative upon the sentence imposed in the Local Court. 15 This is not the first time to my knowledge that a District Court Judge has sentenced an offender while there was an outstanding suspended sentence. In the other matter, which has not yet been determined by this Court, the suspended sentence had been imposed by a District Court Judge yet both the prosecutor and the second Judge were prepared to have the offender sentenced while the suspended sentence was still outstanding. It was not until this Court, hearing a Crown appeal from the sentence imposed by the second judge, required that the breach of the suspended sentence be dealt with that anything was done to have the offender brought before the District Court so that the breach of the bond could be considered. When the matter was brought before the District Court after this Court had reserved its judgment on the Crown appeal, the bond was revoked and the sentence imposed. This Court then had to consider the effect of that sentence upon the determination of the Crown appeal. 16 The Court of Appeal has expressed its concern about the failure of courts to act upon a breach of a bond associated with a suspended sentence because repeated failures will have the consequence of devaluing such a sentence in the eyes of both the offender and the general community: DPP v Cooke [2007] NSWCA 2; 168 A Crim R 379. Yet it appears that the prosecution and some District Court Judges are having insufficient regard to the fact that an offender, who is being sentenced, is subject to a bond in relation to a suspended sentence that has been breached by the offence for which sentence is being passed. It is the duty of the prosecutor to bring such a matter to the attention of the sentencing judge if action has not been taken to have the breach of the bond dealt with before sentencing. 17 However the failure of the prosecutor and the Judge to pay proper regard to the fact that there was an outstanding suspended sentence cannot be taken into account in determining whether the sentence imposed on the respondent is inadequate. The Judge did take into account as an aggravating factor that the respondent was on conditional liberty for a similar offence at the time of the commission of the present offence. That was a matter of significance so far as specific deterrence was concerned. 18 The respondent has given a history of physical abuse in childhood and early drug use of cannabis and heroin. The most significant factor in his subjective case was his mental disorder. In 1997 the respondent suffered a significant head injury while an inmate at Goulburn. He had a fractured skull and continues to suffer the effects of the head injury. He also has some physical injuries with a degenerative condition of the spine. 19 A psychiatrist, Dr Nielssen, diagnosed a traumatic brain injury and a substance abuse disorder. The injury to his brain affects his frontal lobe that controls emotion, judgment and impulse control. He was also examined by a psychologist, Ms Roberts. The Judge summarised this evidence as follows:

In summary the neuropsychological assessment indicated impaired attention and working memory, reduced efficiency of new learning and retrieval of recently presented novel information and difficulties with generating effective strategies when confronted with unfamiliar problems in a man of average intellectual ability. On the positive side, his ability to retrieve familiar or well learned information was intact and he demonstrated relatively intact verbal conceptual skills and numerical skills. 20 The respondent gave evidence as to his classification in prison that results in his having limited access to programmes. He is also in protective custody. 21 As a result of the psychological, psychiatric and other evidence her Honour concluded:

The overwhelming weight of the evidence I find is that, as a result of his extremely dysfunctional upbringing, his lengthy periods of incarceration and the brain injury, that he has been left with difficulty controlling his emotions and particularly his impulse control which resulted in this unfortunate incident. I find, on the evidence, that it was a spontaneous incident. I am unable to be satisfied that he went armed with a knife with the intention of injuring the victim, rather I find that following a reluctance, on her part, to accompany him back to the unit he lost control of his emotions and he stabbed her out of frustration, an emotion he was unable to control. Unfortunately he chose to do so a number of times.

Ground 1 22 The Crown complains that her Honour erred by failing properly to assess the objective seriousness of the offence. 23 Her Honour stated that the offence was "objectively serious" because of the multiple stab wounds and the fact that the respondent was subject to a suspended sentence at the time of committing the offence. She found that the victim had suffered "substantial physical injury and substantial emotional ongoing harm". However, her Honour found that the offence was spontaneous and a result of the respondent losing control of his emotions. The Judge also found that his lack of memory of the offence was a result of "a high level of arousal". 24 Her Honour then stated:

They are matters which reduce his moral culpability and lessen the weight to be given to general deterrence but not markedly. Having said that specific deterrence, retribution and protection of society still loom large in the sentencing exercise for the reasons I have already alluded to. Were it not for these matters and the entering of the plea of guilty it would have been an offence falling at above the mid-range of objective seriousness. 25 This is yet another example of the failure of a judge, who is sentencing in respect of an offence to which the standard non-parole period applies, to undertake the approach that this Court has mandated for determining the appropriate sentence, even where there has been a plea of guilty: see for example R v MLP [2006] NSWCCA 271; 164 A Crim R 93. 26 The Judge was required first to determine where the offence fell in the range of objective seriousness for offences for which the section provides, taking into account only those matters in s 21A of the Crimes (Sentencing Procedure) Act 1999 that relate to the objective seriousness of the offence. Having made that evaluation, her Honour was next to have regard to those matters in s 21A that would indicate whether the sentence, appropriate to the objective seriousness of the offence, should be reduced or increased according to matters subjective to the respondent, for example the plea of guilty. 27 The passage quoted above confuses issues of objective seriousness, subjective mitigation and the aims of punishment. Her Honour indicated that offence would have fallen above mid-range "were it not for these matters and the plea of guilty". "These matters" related to the respondent's mental condition at the time of the stabbing. But it was unnecessary for her Honour to determine where the objective seriousness of the offence lay without having regard to matters that obviously affected the objective seriousness of the offence, such as the respondent's mental condition. Her Honour should have determined where the offence lay in the range of objective seriousness, taking into account the effect that the respondent's mental condition played in the commission of the offence. But that assessment had nothing to do with issues of deterrence, either general or specific, retribution or the protection of society. They are the aims of punishment that should be reflected in the ultimate sentence imposed but have no relevance in determining where an offence lies in the range of objective seriousness. 28 The Crown's complaint that her Honour failed to indicate where in the range of objective seriousness the offence fell is made good. Further her Honour failed to give reasons for departing from the standard non-parole period notwithstanding that there was a plea of guilty: see El Chammas v R [2009] NSWCCA 154. 29 The Crown complains that the erroneous manner in which the Judge approached the determination of the sentence resulted in a non-parole period that fell too far below the standard non-parole period. Although her Honour's approach to determining the sentence was erroneous, the question still remains whether the sentence ultimately imposed was manifestly inadequate. I will consider this question later.

Ground 2 30 The Crown complains that her Honour did not properly approach the respondent's criminal record and failed to have due regard to the principles' enunciated in Veen v The Queen [No2] [1988] HCA 14; (1988) 164 CLR 465. 31 Her Honour stated:

His prior convictions do not operate to increase the objective seriousness of the offence, but do raise issues of retribution, specific deterrence and protection of society. His record clearly indicates a propensity on his part to continue to disobey the law. This offence is not an uncharacteristic aberration nor has there been a significant gap between offences of a like nature. That is cause for concern. 32 In my opinion that passage of her Honour's sentencing remarks does not indicate error, but to the contrary it is a fair summary of the relevant principles in relation to the relevance of a prior criminal record. Whether her Honour gave sufficient weight to retribution, specific deterrence and the protection of society in the sentence she imposed, raises the issue of whether the sentence is manifestly inadequate. Otherwise this ground is not made out. Ground 3 33 The Crown complains that her Honour granted the respondent too great a discount for the utilitarian value of his plea of guilty. The Judge reduced the sentence by 15 per cent notwithstanding that the respondent pleaded guilty on the day before the trial was listed and despite successful adjournment applications by the defence. 34 The respondent gave evidence before her Honour. He was asked a number of leading questions by his legal representative as to the issue of his plea of guilty. The result of that evidence was to the effect that he had not pleaded guilty earlier because of investigations being carried out by his solicitor with experts on the question of his mental state at the time of the stabbing. As soon as those investigations were completed, he pleaded guilty. 35 I do not believe that a discount of 15 per cent was justified. As I stated in R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510 at [11];

"………….Rarely if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount". 36 Generally speaking a sentencing court should not be investigating why a plea of guilty was not given earlier than it was. The policy for the discount is to encourage early pleas on the basis of saving court time and the need for the prosecution to prepare for trial. That policy means that the earlier the plea, the greater the discount. This was made perfectly clear in R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. It has been restated by this Court in numerous cases, see for example R v Borkowski [2009] NSWCCA 102. If the plea of guilty has little utilitarian value because it was given late in the proceedings, it does not matter why the plea was not made earlier. The simple fact in the present case was that, for whatever reason, the plea had little utilitarian value, because the prosecution had prepared for trial and the trial avoided by the plea would have been relatively short. Therefore, it should have attracted a discount at the bottom of the range. No more than 10 per cent was appropriate. 37 But the difference between the discount that should have been given and the discount provided is not sufficient to attract intervention of this Court, although it may be one of the factors that explain why the sentence was manifestly inadequate if the Court reaches that conclusion. Ground 4 38 The complaint is that her Honour failed "properly to take into account the need for specific deterrence". I do not understand the ground except to suggest that, if the sentence is manifestly inadequate, it is because it failed to provide sufficient specific deterrence. Certainly the issue of whether there should be a sentence that reflected general deterrence, given the respondent's mental condition, troubled her Honour. But the Judge was aware of the need for specific deterrence having regard to the respondent's record. She mentions it in the passage set out under Ground 2 above. She also mentioned it in the passage set out from the sentencing remarks under Ground 1 above. Taken by itself, this ground has no merit. Ground 5 39 The Crown maintains that the sentence is manifestly inadequate. It is clear that her Honour would have imposed a sentence of 7 years had it not been for the discount of 15 per cent. It is somewhat curious that the Judge chose a term equivalent to the standard non-parole period to be the total sentence and then applied the discount. If the offence was one in the mid-range of seriousness, then it could be strongly argued that the sentence was manifestly inadequate because it did not sufficiently take account of the standard non-parole period. There was little other than the discount that would have reduced the standard non-parole period in the respondent's case, even having regard to the fact that he was to be kept in protection. It was a serious aggravating factor that he was on a suspended sentence for a wounding offence when he committed the present offence. 40 But I do not believe that the offence was in the mid range of objective seriousness. The charge was one of malicious wounding not the malicious infliction of grievous bodily harm. There is a discussion about the relevance of a charge alleging wounding and the infliction of grievous bodily harm in Bourke v R [2010] NSWCCA 22. It is open to a sentencing judge to take into account the degree of harm caused to the victim even where the charge is malicious wounding and the injury amounts to grievous bodily harm. In a particular case the wounding might itself amount to grievous bodily harm and that was so in Bourke. 41 There are two principal reasons why the objective seriousness of the offence fell below mid range. First the physical injury suffered by the victim only just amounted to grievous bodily harm if account is taken of the emotional harm caused to the victim. In the absence of medical evidence, I do not understand how serious the injury of the collapsed lung was. But in any event, if grievous bodily harm were occasioned to the victim by the wounding, the harm inflicted was at the lower end of the spectrum covered by the offence. In R v Mitchell and Gallagher [2007] NSWCCA 296 I said:

27 A very important aspect of an offence under s 33 is the result of the offender's conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a s 35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted………………. 42 The victim was very fortunate in this case that the injuries were not more serious. But it is a result driven offence and so the respondent is also fortunate that the sentence imposed did not have to reflect the type of injury that might have been envisaged from a number of stab wounds being inflicted to the chest of the victim. This may be the rare case where the intention was to do more harm than was actually caused. 43 The second matter of significance is the respondent's mental disorder. Her Honour held that it reduced his culpability for the offence. She was entitled to come to that view. She also found that the offence was not planned but an instantaneous reaction to his loss of control as a result of his brain injury. As against these matters of mitigation, there was the use of a knife, which was an aggravating factor but there was no other aggravating factor. 44 If the respondent's culpability was reduced by his mental condition and the injuries inflicted upon the victim were in the lower end of the spectrum for an offence of this type, it must follow that the objective seriousness of the offence is below mid range. Based upon her Honour's findings, which were not challenged by the Crown, I would find that it was significantly below mid range notwithstanding the use of a knife. 45 Having established that the offence was significantly below mid range that finding establishes the range of the appropriate sentence for the principle of proportionality to operate. Although the respondent's record was aggravating, and particularly the fact that he was on conditional liberty for a similar offence, it could not be used to increase the sentence above what was proportional to the objective seriousness of the offence: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566. Nor can the aims of punishment such as the need to protect the community or specific deterrence result in a heavier sentence than was warranted by the seriousness of the offence. Preventative detention can be appropriate but only to the extent of what was appropriate for the offence committed: Veen [No 2] at 472-473. 46 Although the Judge made errors in exercising her discretion, I am not satisfied that the sentence was manifestly inadequate. Having regard to the fact that the offence was significantly below mid range, the difference between the non-parole period imposed and the standard non-parole period was not such that this Court should intervene. 47 I propose that the appeal be dismissed. 48 HISLOP J: I agree with Howie J **********

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