R v Ryan; R v McPherson

CATCHWORDS: Sentence appeal by Crown - malicious infliction of grievous bodily harm under s35(2) Crimes Act 1900 - presence of knife - use of cricket bat - whether disregard of public safety - suspended sentence - ommission of two-step process - whether error of law - whether sentence excessively lenient

LEGISLATION CITED: Crimes (Sentencing Procedure) Act Crimes Act 1900

R v Foster [2001] NSWCCA 215 R v Zamagias [2002] NSWCCA 17 R v Blackman and Walters [2001] NSW CCA 121 R v JCE (2000) 120 A Crim R 18 R v T Court of Criminal Appeal, New South Wales, 19 June 1995, unreported R v Percy [1975] Tas SR 62 Stevens v Giersh (1976) 14 SASR 81 R v Jurisic (1998) 45 NSWLR 209 CASES CITED: R v Wegener (1999) NSWCCA 405 Dinsdale v The Queen (2000) 202 CLR 321 JCE (2000) 120 A Crim R 18 R v LRS [2001] NSWCCA 338 R v Geddes (1936) 36 SR(NSW) 554 R v Rushby [1977] 1 NSWLR 594 Saleib [2005] NSWCCA 85 Douar v Regina [2005] NSWCCA 455 R v Saldaneri [2001] NSWCCA 480

Regina PARTIES: Scott John Ryan Gregory James McPherson

Crown: Mr P Miller COUNSEL: Ryan: Mr B Clark McPherson: Mr G Ikners

Crown: Director of Public Prosecutions SOLICITORS: Ryan: Paul Kenny and Associates McPherson: Peter Katsoolis Lawyers

IN THE COURT OF CRIMINAL APPEAL 2006/2152 2006/2155

BARR J ADAMS J LATHAM J

Monday 11 December 2006 R v Scott John RYAN R v Gregory James McPHERSON Judgment 1 BARR and LATHAM JJ: The facts of these appeals are set forth in the judgment of Adams J. The appeals are brought against sentences of imprisonment. Before the sentencing judge could impose any sentence of imprisonment he was obliged to satisfy himself, having considered all possible alternatives, that no penalty other than imprisonment was warranted: Crimes (Sentencing Procedure) Act s5(1). Having so satisfied himself, the judge was next required to determine what the term of the sentence should be: R v Foster [2001] NSWCCA 215; R v Zamagias [2002] NSWCCA 17. That was the first step of a necessary two-step approach: R v Blackman and Walters [2001] NSW CCA 121; R v JCE (2000) 120 A Crim R 18. The determination of the term was to be made without regard to whether the sentence would be immediately served or to the manner in which it was to be served: R v Zamagias at [26]. Insofar as Adams J throws doubt on this requirement we respectfully disagree with his Honour. 2 One of the things the sentencing judge was required to consider was whether to suspend the sentence. However, there was no provision for the suspension of a sentence of more than two years: Crimes (Sentencing Procedure) Act s12. If the length of the sentence determined was too great to permit its suspension, it was not appropriate to shorten it to make it qualify for suspension: cf R v T Court of Criminal Appeal, New South Wales, 19 June 1995, unreported. 3 In imposing sentence his Honour said this, in part - But when one gets down to the nitty gritty of sentencing there are lots of cracks between the boards through which individual cases sometimes fall and this is one of them…To my mind a suspended sentence is an appropriate course to follow in this case and here I say is where this case falls between the cracks, because the Parliament has seen fit to restrict suspended sentences to sentences not in excess of two years imprisonment. The maximum penalty for this case is ten years imprisonment. If it were not for the very commendable steps towards rehabilitation that these two men have taken and the maintenance of good honest hard working paid jobs against the background of the very real risk of being sent to prison on a full time basis I would have thought that a sentence, suspended sentence in excess of two years would have been appropriate. But the Parliament has tied my hands and I do not have the opportunity of imposing a suspended [sentence] of more than two years. If I were to pick the full twenty four months as the appropriate course, they would be entitled to think that they were hard done by because the victim, who at first blush seemed to be very badly injured, within twenty four hours was discharged from hospital and never saw again the health care professionals. So the twenty-four months, if it is the maximum suspended sentence available would seem to be inappropriate. In all of the circumstances I think a suspended sentence of twenty months would be appropriate…

4 It is difficult to understand what his Honour meant by the reference to "lots of cracks between the boards". Two matters seem clear, however. The first is that his Honour did not decide to impose a sentence of imprisonment and determine how long that sentence should be before he went on to consider whether the sentence should be suspended. By reference to the authorities we have cited, that was an error. Secondly, we take his Honour's remarks to mean that his Honour would, if permitted, have imposed a suspended sentence of more than two years. Otherwise the meaning the words "the Parliament has tied my hands" is obscure. We here respectfully disagree with the judgment of Adams J. 5 Apart from these matters, the very length of the sentences imposed and the order suspending them is seen to be erroneous against the background of the facts. His Honour was obliged to impose sentences commensurate with the objective seriousness of the criminality of each of the respondents: R v Geddes (1936) 36 SR(NSW) 554; R v Rushby [1977] 1 NSWLR 594. The attack by both respondents was serious. Ryan attacked after time for reflection. McPherson voluntarily joined in a fight not his own and launched a vicious attack on a man who was down. They beat their quarry two on one. The resulting harm included fractures of the zygomatic arch and the humerus. In our opinion any disinhibiting effect of alcohol did not mitigate criminality and did not entitle either respondent to leniency. 6 In our opinion no sentence less than one of full time custody was appropriate for either respondent, notwithstanding the subjective case he presented. 7 We agree with Adams J that this Court should allow the appeals and substitute the sentences that his Honour proposes. We have in mind the principles which govern Crown appeals against sentences. In our opinion the proposed sentences are the minimum sentences that could be imposed. ADAMS J: Introduction 8 On 18 December 2005 the respondents, Gregory James McPherson and Scott John Ryan, jointly committed the offence of maliciously inflicting grievous bodily harm upon one Jeffrey Ezeanyim. This offence carries a maximum term of imprisonment of ten years. At the time of this offence Ryan was in possession of a knife and was charged with the offence of being armed with intent to commit an indictable offence contrary to s114 of the Crimes Act 1900 (carrying a maximum of seven years' imprisonment). He resisted attempts by two officers to arrest him and was charged with the offences of assaulting police under s60(1) (five years) and resisting police under s58 of the Crimes Act 1900 (five years). The latter three offences were taken into account on a Form 1. 9 Following his arrest, McPherson admitted to police that he had attended the victim's premises and that Ryan had gone inside but declined to answer any further questions. Ryan declined at first to be interviewed but, in February 2006, requested an interview by police and made what appears to have been accepted as (in substance) a full and frank account of what occurred. Both respondents pleaded guilty in the Local Court to the charge of violence and were committed for sentence. They adhered to their pleas in the District Court. Ryan spent 24 days in custody before release on bail whilst McPherson spent 31 days in custody before release on bail. Each respondent was sentenced to imprisonment for twenty months commencing on 1 September 2006 but, pursuant to s12 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) the learned sentencing judge ordered that each sentence should be wholly suspended. Each of the respondents was required to enter into a good behaviour bond for twelve months. In the case of McPherson the bond contained conditions requiring him to undertake courses in anger management, consequential thinking and impulse control. Although his Honour did not, in terms, impose a non-parole period, he indicated that an appropriate non-parole period would be fifteen months. This was an error. It was essential that a non-parole period should be set and that, in doing so, the question of special circumstances be considered in respect of the appropriate ration between that period and the balance of the sentence. His Honour did not expressly refer to any adjustment for pre-sentence custody. It is obvious that an adjustment was necessary. In the circumstances it is unnecessary to determine whether this question was overlooked. 10 On 8 September 2006 the Director of Public Prosecutions gave notice of an intention to appeal to this Court from the sentences imposed in the District Court.

The Facts 11 The Crown tendered a statement of agreed facts. The psychologist spoke to Ryan's partner as well as to Ryan and included a number of further details in his report. He described Ryan's partner as having "impressed as a thoughtful, mature, young woman". The proceedings were conducted, as it seems to me, on the basis that these matters were not in dispute. 12 On Sunday 18 December 2005 the respondents were drinking at the Towradgi Bowling Club with another man, Jason Morgan, when Ryan's partner arrived. She was upset and told him about an incident which occurred the previous evening. She told him that she had gone to the Corrimal Hotel where Jeff (the victim, who was known to Ryan) "had grabbed her with his mates…had told her to take her pants off and stuff like that" and that when she protested the bouncer had just laughed at her. She was very upset by what happened. She told the psychologist that Ryan "started crying…the look on his face was like he was ripped apart". It is reasonable to infer that Ryan was very upset by what he was told. 13 I should interpolate that there is no direct evidence about what occurred to Ryan's partner at the hotel on the night before the offence and the victim was not given an opportunity to give his account about it in the sentence proceedings. Nevertheless, it was conducted on the basis that, the allegations were true or, at least, on the basis that Ryan believed they were true. It was not suggested that this Court should do otherwise. 14 Ryan and McPherson had been drinking. Although his Honour found they both were significantly affected by alcohol, and it may readily be inferred that McPherson had been drinking, there was no evidence that he (as distinct from Ryan) was intoxicated. In response to what they had been told, the respondents immediately left the club, went to Ryan's home and a short time later were picked up by Morgan in his vehicle and driven to the victim's house. It is not clear what the distances were or what the time frame was but it seems reasonable to infer that the distances were not great and it all happened quite quickly. Ryan knocked on the door of the victim's premises and was invited inside by one of the occupants. He met the victim and asked him whether he had been to the Palm Court Hotel the previous evening. When the victim said that he had, Ryan punched him in the face. The victim ran out of the house pursued by Ryan. When the other occupant followed them he was told by McPherson to go back inside. As Ryan ran after the victim he was picked up by Morgan in the car while McPherson followed on foot. 15 The victim was overtaken when he ran into a park where perhaps ten or fifteen people were playing cricket. Ryan was carrying a knife, which he said he picked up when the victim dropped it as he fled the house. Ryan pursued the victim who called out "leave me alone, I didn't do anything wrong, don't touch me". When Ryan caught up with him, the victim asked him to put down the knife and talk but Ryan, holding the knife in his right hand, punched him in the face with his left fist knocking him to the ground. The victim got up and ran towards the toilet block in the park. Ryan pursued and caught him and punched him in the face again. The victim grabbed Ryan's right arm which held the knife and they both fell to the ground with Ryan on top. The victim had to use both his hands to prevent Ryan from pushing the knife towards his throat. Ryan punched him continually in the face. McPherson then arrived and began to punch and kick the victim. He grabbed a cricket bat which was leaning against the toilet block and used it to hit the victim five or six times about the ribs, legs and stomach. Both respondents continually yelled abuse at the victim. A short time later the respondents ran to Morgan's car and were driven from the area. 16 The victim was taken by ambulance to Wollongong Hospital. He lost consciousness on a number of occasions. As a result of the assaults upon him, the victim suffered a depressed fracture of the left zygomatic arch, a hairline fracture of the left distal humerus, soft tissue injury to the left elbow and some superficial abrasions to the left ear and left knee. He remained in hospital until the next day when he was discharged. The Crown prosecutor informed the learned sentencing judge that he did not return to the hospital and did not seek further medical assistance. The learned sentencing judge inferred that he did not further medical assistance and concluded, in effect, that the injuries were very much at the lower end of seriousness. In my view, this conclusion was open to his Honour. 17 The learned sentencing judge described the conduct of Ryan in resisting arrest as "very early signs of truculence", observing that "the offender soon calmed down and they faced up to the reality of the serious situation in which they found themselves". There was no evidence that McPherson was present at the time of Ryan's arrest or that he resisted the police. The assumption that both were arrested together seems to be an error. Ryan alone was charged with offences arising out of his arrest and this is a point of difference (though not much, I think) between him and McPherson. 18 When Ryan was further interviewed by police in February 2006, he said that he was angered by what had happened to his girlfriend and that was why he attacked the victim. He said to a psychologist who prepared a report for the proceedings that he guessed he "had about 10 beers" and "was not blind drunk but was affected". It appears he told the Probation and Parole Officer that he had consumed about six beers and agreed he was disinhibited because of the alcohol. His partner verified this. He admitted confronting, chasing and assaulting the victim whom he punched, he guessed, fifteen times. He did not realise, he claimed, that he had the knife in his hand until after the assaults. He disposed of it in a neighbour's rubbish bin.

Subjective Features 19 A pre-sentence report was tendered in respect of each respondent together with a psychologist's report on Ryan. As at the date of the offence, Ryan was three months short of 25 years of age. His record disclosed three offences of breaking, entering and stealing, one offence of stealing from a dwelling house and one offence of malicious damage, all committed in early 1997 and dealt with in the Children's Court. He had committed several vehicle offences - which are immaterial in the present context - in December 2002 and February 2005. 20 McPherson was two months short of 24 years of age as at the date of the offence. He had been dealt with for theft in the District Court in 1998. More troubling were convictions for assault occasioning actually bodily harm in October and November 2003, for the first of which he was fined and placed on a s9 bond for eighteen months and, for the second, ordered to undertake community service for eighty hours. Otherwise he was convicted of (irrelevant) motor vehicle offences. 21 It is fair to say, I think, that the pre-sentence reports were on the whole highly favourable. The report on Ryan disclosed that he had become involved in offending during a time of rebelliousness between the ages of 15 and 17 years, eventually spending four months in juvenile custody. He said that this experience had a sobering effect and when he was released, he changed his friends, completed his education and ended the recreational use of cannabis. Because of his behaviour during this period, Ryan's education was disrupted but he returned to complete years 11 and 12 at TAFE and managed to obtain secure employment as a scaffolder, completing TAFE studies in this trade. The Probation and Parole officer was able to verify that Ryan was then (and I apprehend presently) working as a scaffolder in Peterborough, Victoria which employment was expected to remain available until at least September 2007. He lived in accommodation close to his worksite, sharing his home with his partner and a workmate. The Probation and Parole officer noted that Ryan appeared to take full responsibility for his actions, accepting that they affected the victim and others. He said that he did not intend to seriously injure the victim and claimed not to recall holding the knife to his throat. He described his actions as a "brain snap" and "a huge mistake". It appears from other disclosures (which it is not necessary to detail) that Ryan may have been, not unreasonably, much more sensitive than most to what he perceived as an attack on his girlfriend by the victim. It is proper to take this matter into account as a mitigating feature. The officer accepted I think - as did his Honour - that Ryan was remorseful and willing to participate in intervention to address behavioural issues. He was assessed as suitable for a "medium/low level of intervention" addressing, amongst other things, anger management. Ryan was highly commended by his employer, described as punctual, capable and hardworking. The psychologist considered that, despite the nature of this offence, Ryan was "at low risk of re-offending" noting in his favour, "a good work ethic, decent support of family structure and a committed relationship". The psychologist also noted Ryan's deep regret for his behaviour. Personality testing indicated a "basically well-adjusted 'core' personality…[with] no indication of poor impulse control or antisocial behaviour tendencies". Overall, it seems fair to conclude that Ryan was indeed not only remorseful but accepted the stupidity and inappropriateness of what he had done and was unlikely to offend again. Fairly considered, this offence should be seen as an aberration. 22 As far as McPherson is concerned, the Probation and Parole report noted that he first came to the attention of the Service on 30 September 2003 when a Court Duty Report was prepared for the Local Court in respect of the second offence of assault occasioning bodily harm for which he was given a community service order. The terms of that order were completed in February 2004 but the record stated that McPherson's conduct was unsatisfactory and he displayed argumentative behaviour. Subsequent community service orders imposed for driving offences were current at the date of sentence but had attracted positive comment in respect to his attendance and participation. At the date of sentence McPherson lived with his parents with whom his relationship was sometimes difficult but that, when he was released on bail on 18 January 2006 this relationship improved. His parents reported that McPherson no longer associates with "negative peer groups". McPherson told his parents, and it is reasonable to accept I think, that his experience of incarceration was a useful experience. McPherson completed Year Ten and an apprenticeship at a local sheet metal workshop where he has been employed for over eight years. His employer told the Probation and Parole officer that McPherson had not shown any aggression or violence in the workplace and said he was "surprised" when he learnt of the offence. McPherson was described as a "hard working and trusted employee". McPherson told the officer that his conduct was "stupid" arising from a sense of loyalty and support for Ryan, who was his friend. McPherson expressed remorse and said that he had now changed aspects of his life to reduce the risk of offending in this way again. He also stated that he was prepared to accept intervention to assist him in this respect. Significantly positive factors for rehabilitation include, not only his developing insight but also that he has a supportive family and has maintained long term employment. McPherson was assessed as "suitable for a medium to low level of intervention…commiserate with the assessed risk". In light of his prior offences for violence, the present offence cannot be considered as an aberration, though in fairness in should be noted that he was not the instigator.

The Findings of the Primary Judge. 23 Dealing first with the objective circumstances, the learned sentencing judge briefly summarised the agreed Statement of Facts. His Honour said that there was "a modicum of planning" that was "almost unsophisticated in the extreme". In my view, this finding was open to his Honour. The point here, however, is not so much that there was little or no planning but that the offence was, to some degree, premeditated. His Honour thought that the injuries were less than those which might have been expected had there been significant blows with the cricket bat and telling punches, given the number of blows described in the agreed facts. Having described the injuries the learned sentencing judge noted - "…The victim was taken by ambulance and admitted to hospital overnight. There is no victim impact statement. On my interrogation of the Crown on this aspect of the matter, he informs me that the hospital authorities discharged the victim the next morning and recommended that he see a surgeon but that the victim has not acted upon the advice. The obvious conclusion is that the…[injuries] must obviously not be troubling him too much…and the superficial abrasions and soft tissue injuries have apparently occasioned him no harm." 24 It is submitted by the Crown Prosecutor in this Court that this characterisation of the injuries trivialised them, pointing out that the respondents pleaded to an offence that, after all, involved the infliction of grievous bodily harm. I do not read the learned sentencing judge's remarks as minimising the injuries. On the contrary, I think that his Honour's characterisation of them was, with respect, realistic and sensible. It is clear beyond argument that the actual extent of injuries is a most material consideration when assessing the objective seriousness for offences of violence. His Honour was entitled to make the findings that he did and, in doing so, I would not accept that he minimised or trivialised them. In this Court it was submitted by the Crown Prosecutor that his Honour inferred from the absence of a Victim Impact Statement that the offence had little or no impact on the victim. In my view this submission should be rejected. I think it is clear that his Honour's observation that there was no Victim Impact Statement was simply meant to convey there was nothing from the victim which enabled him to assess the seriousness and effect of his injuries. 25 The learned sentencing judge, when dealing with the aggravating factors referred to in s21A(2) of the Sentencing Procedure Act rejected the Crown's submission that the offence was committed without regard for public safety. In coming to this conclusion, his Honour distinguished the facts of this case from those disclosed in Saleib [2005] NSWCCA 85. When an offence, especially one involving violence, is committed in an area of public resort and members of the public are in the vicinity, it is obvious that a question of public safety will arise. However, the extent to which this is an aggravating feature is a matter of fact and degree. His Honour observed that the cricket game was not interrupted except that one of the persons associated with it rang the police. In my view the Crown has not demonstrated error in respect of this finding. 26 So far as the knife is concerned, the learned sentencing judge noted Ryan's claim that he had not realized he had the knife in his hand when he was wrestling with the victim and the agreed fact that, whilst the victim was on the ground, he had to use both hands to prevent Ryan from pushing the knife towards his throat was attempting to keep Ryan's knife hand away from his throat. His Honour did not express a finding on this matter but it seems to me that he sentenced on the basis that Ryan did not intend to use the knife to inflict injury. This is consistent with the agreed facts. If he did have such an intention, he would have committed a more serious offence than those with which he was charged. In my view the implicit finding to which I have referred was open to his Honour. Accordingly, in the circumstances, Ryan could not be sentenced, as it seems to me, upon the basis that he attempted to use the knife to injure the victim. Nor. I might mention, did the evidence permit the conclusion that Ryan did not pick up the knife as he claimed. At the same time, I think that it is inescapable that the respondent was aware that he held the knife at the time of the assaults and this must be regarded as an aggravating feature of his conduct. Of course, in light of the charge dealt with on the Form 1 to which I have referred, this aspect must not be double counted. 27 The learned sentencing judge accepted the submission of the Crown prosecutor that the "motivating factor in the whole episode was, on the part of Ryan at least, revenge for what he believed had been done to his female partner the night before." However, his Honour thought that the submission should be accepted "in a qualified fashion" pointing out that he thought that the revenge was largely fuelled by alcohol. The Crown submits that the evidence did not justify the conclusion of his Honour as to the significance of alcohol in the offence, pointing to the fact that there was no evidence suggesting that McPherson was intoxicated and Ryan said that he was not drunk. I am not persuaded that the learned trial judge erred so far as his conclusions about Ryan were concerned. 28 It is submitted also that the learned sentencing judge erred in considering that the intoxication of the respondents to some extent reduced their culpability. I do not think this submission is correct. In my view the learned sentencing judge was doing no more, in substance, than examining the extent to which the violence of the attack might be explained by the disinhibition brought about by intoxication. His Honour observed: "the old saying is that revenge is a dish best served cold and that it was certainly not the way in which this revenge was wreaked on this occasion". This finding was justified and is part of the overall picture. This was one of the circumstances that helped to explain why Ryan, who had no history suggesting a propensity for violence, might have committed the offence. To my mind, also, the fact that the violence was triggered by what both men reasonably thought had been a sexual assault on Ryan's partner is a mitigating factor, a factor reflected in s21A(3)(c) of the Act. The attack was, of course, very wrong indeed. But it was not an act of merely gratuitous violence or from persons looking for a fight; nor was it in the course of or in furtherance of any criminal conduct, such as robbery or theft. As I have already mentioned, I think that it is fair to infer that, in part at least, Ryan's culpable overreaction was contributed to by the distressing family experiences which I have touched on above. 29 After dealing with the subjective features of the case to which I have already referred, the learned sentencing judge said - "It has been urged upon me by both counsel for the offenders that each of them has very good prospects of rehabilitation. Those submissions find favour with me. I have been most impressed by the way both young men have faced up to their stupid conduct in the day in question and have soldiered on without dropping their bundle and have managed to impress career Probation and Parole officers at the time of the preparation of the sentence reports, and they both seem to have created a good impression on the Probation people."

His Honour also accepted that the respondents were remorseful and contrite. These conclusions were open.

The Suspension of the Sentence 30 Dealing with the sentencing options available, the learned judge said - "The range of options opened to a sentencing judge in some respects might be seen to be very wide ranging, from bonds, home detention, periodic detention, community service orders, suspended sentences through to full time custodial sentences. But when one gets down to the nitty gritty of sentencing there are lots of cracks between the boards through which individual cases sometimes fall and this is one of them. This is a case which at first blush, if I might put it this way, from the radio shock jock's point of view might call for a harsh sentence of full time imprisonment but when one has the opportunity of looking at all of the subjective features, and even though the Crown had a lot going for him in his submission that the subjective features do not entirely outweigh the objective criminality of this case, to order home detention or periodic detention for an offence of this nature seems to me to be quite out of kilter. A community service order has marginal attraction. To my mind a suspended sentence is an appropriate course to follow in this case and here I say is where this case falls between the cracks, because the Parliament has seen fit to restrict suspended sentences to sentences not in excess of two years imprisonment. The maximum penalty for this case is ten years imprisonment. If it were not for the very commendable steps towards rehabilitation that these two men have taken and the maintenance of good honest hard working paid jobs against the background of the very real risk of being sent to prison on a full time basis I would have thought that a sentence, suspended sentence in excess of two years would have been appropriate. But the Parliament has tied my hands and I do not have the opportunity of imposing a suspended [sentence] of more than two years. If I were to pick the full twenty four months as the appropriate course, they would be entitled to think that they were hard done by because the victim, who at first blush seemed to be very badly injured, within twenty four hours was discharged from hospital and never saw again the health care professionals. So the twenty-four months, if it is the maximum suspended sentence available would seem to be inappropriate. In all of the circumstances I think a suspended sentence of twenty months would be appropriate, that giving effect to the twenty five percent discount for the early plea of guilty, in round terms twenty five percent." 31 It is submitted by the Crown prosecutor that the learned sentencing judge assessed the criminality of the respondents such that a sentence of more than two years was called for but, because he had already decided to suspend the sentence, he reduced the term to enable him to do so. He submitted that accordingly his Honour failed to adopt the two-stage approach considered to be appropriate by this Court in Regina v Zamagias [2002] NSWCCA 17 at [23]-[30].

32 As the Court said in Zamagias, the term of a sentence must be determined before considering whether it might be suspended or ordered to be served otherwise than by full time imprisonment. The Court said - "[28] Once the term of the sentence has been determined the Court is then to consider whether any alternative to full time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full time custody will generally be governed by the length of the term that has been determined subject to the restrictions or pre-conditions imposed by the legislature on a particular sentencing alternative, see for example s77 of the [ Sentencing Procedure Act ] with respect to home detention. But the appropriateness of an alternative to full term custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The Court in choosing an alternative to full time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment: R v Jurisic (1998) 45 NSWLR 209 at 205B. [29] So in the second step, where, for example, the term chosen is one of 18 months or less the alternatives generally available would be, in escalating order of severity: an order suspending the sentence; a home detention order; a periodic detention order; full-time custody: R v LRS [2001] NSWCCA 338 per Sully J at [65]. Of course the court has a discretion as to which of the available alternatives is chosen, but that discretion must be exercised according to established sentencing principles."

It must be now accepted that it is essential to first set the appropriate sentence and then to move to consideration of the modes by which the sentence can be served. 33 The Court in Zamagias cited the following authorities in support of the rule: R v Percy [1975] Tas SR 62 at 73; Stevens v Giersh (1976) 14 SASR 81 at 82; R v Jurisic (1998) 45 NSWLR 209; R v Wegener (1999) NSWCCA 405; Dinsdale v The Queen (2000) 202 CLR 321 at 346 per Kirby J; JCE (2000) 120 A Crim R 18; R v Blackman and Walters [2001] NSWCCA 121 at [50] to [52]; R v LRS [2001] NSWCCA 338. Later mentions of the rule include Douar v Regina [2005] NSWCCA 455. Jurisic was concerned with orders for home detention and, to a degree, orders for periodic detention. These orders are fundamentally different to orders suspending a sentence: they concern the kind of detention by which a sentence of imprisonment is to be served, whilst an order suspending the sentence operates (whilst the conditions are satisfied) to stay execution of the whole or part of the sentence. It follows, as it seems to me with respect, that Jurisic does not deal with the appropriate procedure for considering whether to suspend a sentence. Wegener concerned an order for periodic detention where the primary judge stated that the sentence was longer than it would have been had a term of full-time detention (to use the term used in s3 of the Sentencing Procedure Act to refer to imprisonment that is to be served by way of periodic detention or home detention) been imposed. This was held to be in error for the principal reason that the effect of failure to comply with the requirements of periodic detention was that the offender was required to serve the whole of the balance of the sentence. Obviously, this could not fairly occur if, in effect, the term of full-time detention had been increased beyond what it would have been had no periodic detention order been made. 34 Dinsdale v The Queen concerned suspended sentences passed under the Sentencing Act 1995 (WA). Section 39 of that Act set out a graduated scheme of sentencing options from passing no sentence at all, through to imprisonment, including inter alia "suspended imprisonment" and requiring the court to dismiss as inappropriate the options listed before the option chosen. The statutory scheme is therefore markedly different from that of the Sentencing Procedure Act. The power to suspend a sentence derived from s 76 of the WA Act which relevantly provides: "(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months. (2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances." 35 The reason for s76(2) is obvious: if the suspension be lifted and the sentence therefore required to be served, it must not be longer than would be appropriate punishment for the crime. As Kirby J pointed out (202 CLR 344-6), there is a "conceptual incongruity" inherent in the suspension of a sentence and it is important that "courts…attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and avoid any temptation to misapply the option where a non-custodial sentence would suffice and…keep separate the two components of such a sentence, namely the imposition of a term of imprisonment and the suspension of it where that is legally and factually justified". His Honour went on to say (ibid at 346, omitting references) - The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a "soft option" when the court with the responsibility of sentencing is "not quite certain what to do". 36 With respect, I do not read this passage as involving the proposition that the term of the sentence should be set without regard to the question of potential suspension. His Honour's essential point was that the "soft option" must be avoided by determining first whether a sentence of imprisonment (implicitly, of whatever length) was required. The passage was adopted as applicable in New South Wales by this Court in Blackman and Walters where the Court also cited the judgment of Fitzgerald JA in JCE (2000) 120 A Crim R 18 at [17]. If I may say so, Fitzgerald JA's discussion (ibid at 20-21) of the "conceptual incongruity" to which Kirby J referred in Dinsdale is a useful commentary that deserves to be read as a whole - "[13] The Director of Public Prosecutions referred the Court to an article entitled 'Suspended Sentences and Preventative Sentences: Illusory Evils and Disproportionate Punishments' by a lecturer, Mr Mirko Bagaric, in (1999) 22 UNSWLJ 535, and placed emphasis upon Kirby J's reference in Dinsdale (2000) 115 ACrimR 558: [to] ' ...the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.' It was submitted that the 'structure of the [ Crimes (Sentencing Procedure) Act ] as it concerns suspended sentences ... provides something of a conundrum'. [14] An attempt was made to highlight the perceived 'conundrum' by pointing out that the sentencing judge had not (and perhaps it was implicitly suggested, could not) explain why a suspended sentence was appropriate although a good behaviour bond was not appropriate. The unstated premise appeared to be that there is a necessary inconsistency between conclusions that a good behaviour bond is inappropriate but a suspended sentence of imprisonment is appropriate. Somewhat similar submissions were made in relation to the conclusions necessary to support a decision that there is no alternative other than the sentence imposed and a decision that a suspended sentence is appropriate. [15] It is desirable not to complicate the sentencing process unnecessarily. The legislative intention seems plain. Section 5(1) of the Crimes (Sentencing Procedure) Act requires a court to consider all possible alternatives and be satisfied that no penalty other than imprisonment is appropriate before it sentences an offender to imprisonment, including a sentence of imprisonment which is suspended. A sentence of imprisonment which is suspended is nonetheless a sentence of imprisonment. [16] A sentence of imprisonment, including a sentence of imprisonment which is suspended, is a heavier sentence than a non-custodial sentence and is inappropriate if a non-custodial sentence, such as a good behaviour bond, is appropriate. [17] If the court is satisfied that no penalty other than imprisonment is appropriate, it must determine what term of imprisonment is appropriate. Other questions then arise. By s 12(1) of the Act, one of the questions to be considered when the appropriate term of imprisonment is not more than two years, is whether execution of the sentence should be suspended. When that question falls for consideration, the same considerations as were relevant in determining whether a sentence of imprisonment was called for and if so what term of imprisonment was appropriate, again fall for consideration in determining whether execution of the sentence should be suspended. Broadly stated, as Kirby J pointed out in Dinsdale , the material considerations are the objective features of the offence and the personal considerations applicable to the offender including considerations of rehabilitation and mercy. [18] Often, as in the present case, the material considerations in sentencing will point in different directions. The sentencing process requires the court to balance those considerations. A balancing of the considerations which led to a conclusion that no sentence other than imprisonment is appropriate may, nonetheless, lead to a decision that execution of the sentence should be suspended. [19] A sentencing judge must explain his or her decision. That might require discussion of some other sentencing options with reasons why those options were not adopted. For example, that is implicit in s 5(1) and expressly provided for by s 5(2) of the Crimes (Sentencing Procedure) Act . However, it is obviously unnecessary for every possibility to be discussed in every case. For example, it is unnecessary to explain why community service is not an appropriate sentence for a murderer. Further, the ultimate decision, for example, whether a term of imprisonment should be eight years or nine years, frequently involves a subjective judgment, based on experience as well as information, which cannot be precisely and comprehensively articulated." 37 In Blackman and Walters Wood CJ at CL (with whom the other members of the Court agreed) said - "[51] His Honour did not here expressly go through a two step process. It was submitted that, had he done so, he would have reached a conclusion in the first step that sentences in excess of two years were warranted. Upon such a finding, their suspension would not have been possible, since S 12(1) of the Crimes (Sentencing Procedure) Act 1999 only permits suspension where the sentence is for a term of not more than two years. So, it was submitted, error had been shown. 52 The vice to which the observations in Dinsdale were directed appears to me to be that which can arise where, in a state of uncertainty as to the proper sentencing order, a Judge selects a suspended sentence as a 'soft option'. This submission does, however, need to be considered in the light of s 5(1) of the Act, which provides: 'A Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.' 53 I am not persuaded that his Honour, as a very experienced trial Judge, was unaware of the requirements of the law in determining an appropriate sentence, or that being in doubt, he looked for a soft option and then chose the maximum sentence for which suspension was permissible. Had that been his approach then error would have been demonstrated." 38 With respect, this passage does not suggest that it is an error for a sentencing judge to have in mind that the sentence might (or even should) be suspended when determining the term of the sentence. It is, in substance, directed to the necessity of deciding "no penalty other than imprisonment is appropriate" before moving to consider whether a the sentence should be suspended and to the error involved in selecting the maximum sentence that might be suspended as the "soft option". 39 In R v LRS, Sully J said - "[64]…What this particular case required was a very careful consideration, in a precise way, of what alternatives were available under the [ Sentencing Procedure ] Act to the passing of a sentence of imprisonment. That is to say, what was required was a level-headed consideration of the alternatives for which provision has been made variously under ss 8, 9, 10 and 11 of the Act. [65] If there had been a proper consideration of those alternatives then, as I understand the scheme of the Act, it necessarily followed that a sentence of imprisonment must be passed. I do not mean passed and served in full time custody. I mean passed. That done, it was then necessary to consider, and to decide, whether service of the sentence thus passed should be: (a) suspended pursuant to s 12; (b) service by means of home detention pursuant to s 7; (c) service by means of periodic detention pursuant to s 6; or, (d) service in full time custody. [66] My purpose in saying all of that, I repeat with emphasis, is not to suggest that from now on it will be a ground of appeal to this Court that a sentencing Judge has not meticulously set out, as though in a prescribed check list, a precise series of procedural steps of the kind which I have just outlined; and has thereafter meticulously marked each with a tick or a cross as the Judge might think appropriate. [67] My purpose is rather to suggest that, given the particular nature of the present case, the taking of time to sift carefully through the statutory scheme and the alternatives provided by it must have resulted, as I respectfully think, in a conclusion that it could not possibly be correct, given the objective gravity of what is involved in the present matter, to have dealt with it by any of the alternatives made available by ss 8, 9, 10 and 11 of the Act. [68] In other words, it seems to me that a proper and methodical approach must have made it at once apparent that at the very least a sentence of imprisonment needed to be passed formally, if only as a means of a proper public denunciation of behaviour which, in my view, was on the objective circumstances extremely serious behaviour…"

It will be observed that his Honour did not say, as such, that the term of the sentence of imprisonment must be set before moving to consideration of whether it might be served by less than full-time detention. It is implicit, of course, that (to take the possibility of a suspension of the sentence) the term must be two years or less. 40 It scarcely needs to be said that the legislation itself assumes that there will be cases when a proper application of the principles of sentencing, including those requiring appropriate weight to be given to all the objective and subjective features, could and, indeed, should result in (say) a suspended sentence. Those features must all be taken into account when setting the sentence because, if the offender fails to satisfy the conditions of the suspension, the stay of execution is dissolved. The entire sentence must then be served in full-time detention and must be appropriate as a sentence so to be served. 41 (There is one, perhaps crucial, qualification to this. A sentence will almost invariably be suspended because, amongst other things, the sentencing judge has made a positive finding in favour of the offender in respect of his or her prospects of rehabilitation. Non-compliance with the conditions of suspension will demonstrate that conclusion to have disproved by events. Accordingly, the sentence, considered as one requiring full-time detention, may be justified, even prospectively, upon the basis that the prospects of rehabilitation, believed initially to be good, turned out to be bad, with a consequential need for greater emphasis to be placed on the need for personal deterrence. In short, the sentence will only be served in the latter event. Accordingly, the sentencing picture when the sentence is suspended will be significantly different from that subsisting when the sentence must, in the result, be served.) 42 To put the "conundrum" in slightly different language than that of Fitzerald JA, it appears on the face of it inconsistent to hold that the objective and subjective features warrant a sentence of (say) two years imprisonment but, at the same time, also warrant a stay of execution. I am not sure that there is an entirely satisfactory logical analysis that resolves this conundrum. But logical consistency that might satisfy the philosopher is neither necessary nor desirable in balancing the multifarious and sometimes contradictory elements of sentencing. It is sufficient to say, I think, that the conundrum is resolved without difficulty every day by judges who impose entirely proper and just suspended sentences. It verges on the fictional, however, to think that, where such a sentence - or any other sentence of less that full-time detention - is imposed, the sentencing judge actually ignores the potential for such a disposition when considering the term of the sentence. Nor is there, in my respectful view, any good reason why the judge should do so. Not only is it impractical, it also offends the necessity for deriving the just sentence by way of instinctive synthesis of all the relevant features of the case, including, necessarily, the available modes by which the sentence can be served. In my view, it would (or should) be entirely proper for a judge to decide that the sentence of full-time detention is appropriate, bearing in mind that it is intended to suspend it, on the basis that the optimistic predictions about rehabilitation would have been proved false in the event that it became necessary to serve it full-time. The same is true of considering the possible imposition of home or periodic detention. The sentence must still be appropriate considered as a sentence of full-time detention, but a decision that it is so appropriate does not at all imply that it therefore cannot or should not be served by less than full-time detention, let alone that it cannot or should not be suspended. 43 In other words, the requirement that a sentence of imprisonment must be imposed does not make full-time detention, as it were, the "default" position. When setting the term of the sentence, the question as to its mode of service is in principle entirely open, limited only by the proper application of the principles of sentencing. 44 The proper approach, in my respectful view, is that the length of the sentence must be set so that it would be appropriate in the event that it comes to be served and in that sense only should it be set without regard to the question whether it should or might be suspended or be served otherwise than in full-time detention: it will only be served in the event that such an option has either been tried and failed or has not been tried. But if, say, a sentence of two years full-time imprisonment is within the proper range having regard to all the relevant objective and subjective features, then, even if a term of three years is also within range, it seems to me that it would (or should) be entirely proper for a sentencing judge to choose the lesser sentence in part because there was a potential for suspending the sentence and the judge thought that such a course would or might be appropriate. That this must be right can be easily tested: on appeal, the only real question would be whether the sentence was inappropriately lenient or excessive. If the two year sentence was within range, it would be immaterial that it was arrived at by reference (with the other relevant objective and subjective features of the case) to the two year limit for imposing a suspended sentence. 45 It is no doubt true that "the making of an order [involving no or less than full time imprisonment] will entail…a significant watering down of the sentence of imprisonment" (Jurisic 45 NSWLR 209 at 205B per Sully J) but this is logically no more likely to be inappropriately lenient than not to make such an order is likely to make the sentence inappropriately harsh. I would therefore respectfully disagree with the view expressed by Sully J (immediately following the passage above quoted) that an order imposing less than full-time imprisonment involves "a significant diminution in the effectiveness of the sentence in terms of proper retribution; of proper personal deterrence: and of proper general deterrence" (emphasis added). In a particular case, it might do so. But, in another case, it might represent an entirely appropriate response to all the elements of sentencing, including retribution and general and specific deterrence. In some cases, "proper" retribution and deterrence might well require or permit less than full-time detention. There is no a priori assumption favouring full-time detention. It is obvious that the more lenient the sentence is, the less will be the punishment and the harsher the sentence the greater the punishment. But, with respect, it cannot be right to say that "proper" retribution and "proper" deterrence are less likely to result from a sentence of less than full-time detention than one of full-time detention. Just as with mere length, the mere character of the detention, considered alone, says nothing about whether the punishment is inappropriately lenient or harsh or more likely to be either. 46 I would add the all too frequently overlooked point that it is inarguable that an inappropriately harsh sentence is no less unjust than an inappropriately lenient one. 47 To summarise. As the law presently stands, it seems to be correct that the length of the sentence should not be adjusted to provide the option of ordering less than full-time detention, even if such a sentence is within a proper range considered as such (though I would respectfully suggest that this rule should be reconsidered). Setting the sentence of itself entails no assumption that it will be or ought to be served by way of full-time detention or otherwise, for all that it is called a "sentence of imprisonment" in ss 6, 7, 8 and 12. Nor does it involve any assumption that an order that the sentence be served otherwise than by full-time detention is likely to be inappropriately lenient. Whether it is so will depend on the circumstances of the case.

48 It is not essential that a sentencing court expressly state that it has applied the two-stage approach in arriving at the sentence imposed: R v Foster [2001] NSWCCA 215; Zamagias, infra, at [30]. The omission of such an express statement does not, of itself, demonstrate a failure to follow the required process: R v Saldaneri [2001] NSWCCA 480 at [14]; Zamagias at [30]. Even where the error is made, that is not determinative. In Foster the Court said - "[35] Where, as here, it appears that the judge has not proceeded in the appropriate fashion but, as Kirby J expressed it, "elided" the two steps, it is appropriate that this Court consider carefully the findings which the judge did make about relevant circumstances, in order to determine whether the sentence is erroneous, because the judge has failed to take account of all relevant matters, or has taken irrelevant matters into consideration, an error which would more readily be revealed had the strict two-step procedure been followed." 49 The passage in the learned sentencing judge's reasons dealing with the setting of the sentence and its suspension are, with respect, obscure. It must be recalled, however, that this was an ex tempore judgment and care must be taken to interpret the reasons fairly having regard to that consideration. The learned sentencing judge mentioned that the power to suspend a sentence is limited to sentences of two years or less. I would not interpret his Honour's reference to this issue as meaning that his Honour had decided not to sentence the respondents to sentences of greater than two years because of this limitation. In particular, I note his Honour's observation that a two-year sentence for each of them would be inappropriately heavy, an observation which necessarily assumes (in the context) that it would not be suspended. It may well be - and, indeed, it seems very likely - that, by the time his Honour came to deliver his reasons for sentence, he had decided to impose the specified sentences and to suspend them. This would have made it quite natural to refer to the outcome as imposing suspended sentences but quite wrong to infer that his Honour performed the prohibited adjustment.

The appropriate sentences 50 The crucial question in this case is whether, having regard to the objective seriousness of the offences and bearing in mind the strong subjective features, suspending the sentences imposed was excessively lenient. In this Court, the Crown prosecutor conceded that, had the learned sentencing judge not suspended the sentences, it could not be said that they were appealably lenient. Of the features pointed to by the prosecutor in this respect, the following seem to me to be significant - (a) each respondent was at some stage armed - Ryan with a knife and McPherson with a cricket bat - and the weapons were used in the assault upon the victim;

(b) there was a degree of planning or, at least, premeditation;

(c) the offence was committed in company; (c) the initial assault took place in the victim's home and the respondents pursued him and continued to attack him; and (d) the attack was sustained, involved a significant degree of violence and inflicted significant injury. 51 Although the knife did not in fact inflict injury and it may be that Ryan did not intend to use it to inflict injury, its presence undoubtedly caused extreme fear and Ryan wielded it in a way that it may well have caused very grave injury indeed. I would accept that Ryan was very upset and angered by what he understood to have been the conduct of the victim towards his partner. This was not an attack motivated, for example, by a mere desire to have a fight, let alone for any other reason of intimidation or pursuant to some ulterior criminal motive. This is, to my mind, an important feature. It is reasonable also to accept that the offence was out of character, that he is remorseful and unlikely to offend again. 52 Regrettably, McPherson has, by virtue of his prior convictions, shown that he does resort to unlawful violence on occasions and thus specific deterrence is more important in his case. As the learned sentencing judge found, it is right to be somewhat sceptical about McPherson's rehabilitation, though it is also reasonable to accept that there were positive signs in this regard. He did not have a knife and, though he wielded a cricket bat, this was not with the extent of force that might have been used. He was not the instigator but, on the other hand, he did not have the personal distress that was evident in Ryan. 53 Both respondents, as I have mentioned, spent about a month in prison before they were released on bail. Both seemed to have learnt a lesson from this experience. 54 I have come to the conclusion that, making every allowance for the strong subjective features affecting each respondent, the objective circumstances of this offence were so grave as to require the imposition of a sentence of full time detention. The suspension of the sentences ordered by the learned sentencing judge resulted from his Honour giving far too much weight to the favourable subjective features of each offender. 55 It was urged by counsel for McPherson in an argument that applies equally to Ryan that the Court would exercise its discretion not to quash the sentences imposed, despite the finding of error. Counsel points to the fact that McPherson is in full time employment, had successfully completed his trade certificate in fabricated engineering about a year ago and was also promoted and is responsible for supervising at least one other employee. 56 However, this is not a case where, in my view the Court could properly fail to exercise its jurisdiction to correct the sentences under appeal. For reasons that are apparent from what I have already said, I do not think on balance that there is ultimately a significant difference between the respondents in terms of their overall culpability. In my opinion, the same sentence should be imposed upon both respondents. Both the subjective features of the respondents and the practice of this Court when re-sentencing following a successful Crown appeal justify the extension of a considerable degree of leniency towards them. 57 It is necessary in each case to make allowance for the time spent in custody to which I have already referred and, though there is a difference of a few days between them, I propose an allowance of one month in this respect. Moreover, the full utilitarian discount of 25% should be allowed for the early pleas. The learned sentencing judge did not, in the result, impose a non-parole period. This was an error and it is necessary for this Court to do so. The Crown Prosecutor accepted in this Court that there were special circumstances in each case justifying a departure from the statutory ratio in s44 of the Sentencing Procedure Act. The circumstances are that this is the first term of imprisonment to be served by each of the respondents and each will need a period of extended supervision the better to ensure their continued rehabilitation. In respect of Ryan, the matters on the Form 1 are taken into account in the sentence passed on him. 58 I propose the following orders:

1. In each case the order suspending the sentence is set aside;

3. Each respondent is sentenced to a non-parole period of six months commencing on 11 December 2006 and ending on 10 June 2007 with a balance of term of nine months commencing on 11 June 2007 and ending on 10 March 2008.

4. At the expiration of their respective non-parole periods, each offender is to be released on parole.

02/05/2007 - Date of non-parole period in order 3 changed - Paragraph(s) 58

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