R v Tuala

Court of Criminal Appeal (NSW)|2014-11-12|Before: Ward JA, Simpson J, Wilson J

Solicitors: S Kavanagh - Director of Public Prosecutions (Applicant) Gardner Ekes Lawyers (Respondent) File Number(s): 2012/90943 Decision under appeal Court or tribunal: District Court Date of Decision: 21 November 2013 Before: Robison DCJ File Number(s): 2012/90943

Judgment

WARD JA: I agree with Simpson J.
SIMPSON J: This is a Crown appeal against what is asserted to be the manifest inadequacy of a series of sentences imposed upon the respondent in the District Court on 21 November 2013.
On 23 and 24 July 2013 the respondent was arraigned on two separate indictments. The first charged:

one count of possession of a prohibited firearm (a shortened 12 gauge shotgun, an offence committed on 21 March 2012);
one count of possession of an unregistered firearm (a .38 calibre revolver, also committed on 21 March 2012). Pursuant to s 7(1) of the Firearms Act 1996 (NSW), the maximum penalty applicable to the first of these offences is imprisonment for 14 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") a standard non-parole period of 3 years is prescribed. Pursuant to s 36(1) of the Firearms Act the maximum penalty applicable to the second is imprisonment for 10 years. No standard non-parole period is prescribed.

The relevant facts

There is no difficulty in ascertaining the facts found by Robison DCJ, and no issue is taken as to those findings of fact.
Anthony Cats was a self-employed builder. He had undertaken a shop fit out project in the city as a result of which he became indebted to a sub-contractor. Mr Cats was in financial difficulties and was unable to repay the debt. Late in 2011, persons apparently acting on behalf of the sub-contractor began to harass Mr Cats, demanding payment of the debt. The Crown alleged that the respondent was involved in this campaign. (This is given by way of background only, since the conduct alleged by the Crown gave rise to the charge of demanding money with menaces, which was ultimately the subject of a verdict of not guilty by direction.)
On 21 March 2012 a meeting was arranged between Mr Cats and the respondent, in the suburb of Miller. The meeting place was in the vicinity of a TAFE college. Mr Cats attended, accompanied by George Katsambas. The respondent was surprised and disconcerted by the presence of Mr Katsambas, and demanded to know why he was present. He then demanded money from Mr Cats. There was some discussion, and the three men began to walk towards a nearby footbridge. The respondent told Mr Cats that he had had enough time to repay the debt, and produced a firearm from his pocket. He shouted "You've had enough time", and "This is for fucking me around", held the gun to Mr Cats' arm, and fired. Mr Cats stepped back, the respondent ordered him to get to the ground, and fired again, towards Mr Cats' legs. (It was the Crown case that the respondent then fired three shots at Mr Katsambas, who was running away, but the jury acquitted the respondent of those charges.) The respondent then fired a third shot at Mr Cats, this time striking him in the right inner thigh.
Mr Cats unwisely called the respondent "a big weak piece of shit" and threatened retaliation. This caused the respondent to point the gun again towards Mr Cats, at the upper half of his body. He did not shoot again.
It seems that medical evidence as to the injuries to Mr Cats was adduced in the trial. This was not the subject of any explicit findings of fact by his Honour, and the evidence was not placed before this Court. All that his Honour said on this topic was: "Mr Cats was admitted to Liverpool Hospital for a number of days and I note certain medical procedures were undertaken."
The respondent was arrested on the same day. Robison DCJ noted that the firearm used in the offences was never located. It is not clear on the material before this Court how the firearms the subject of the possession charges came to light. It is to be noted that those offences were committed on the same day as the shooting offences.

The respondent's personal circumstances

It is apparent from the "draft set of remarks" that the respondent gave evidence in the trial, but it is also apparent that his evidence was not accepted by the jury. Whether his evidence went to his personal circumstances or not is not known. There are no findings of fact based on any such evidence, if any was given. There was before his Honour a Pre-Sentence Report, and the respondent's wife gave evidence in the sentencing proceedings.
The respondent was born in March 1977 and was 35 at the time of the offences. He has only a relatively modest criminal record; apart from a traffic offence, and three offences of driving on an expired licence, his record contains two offences of obtaining money by deception (in respect of which he was made subject to a good behaviour bond, and ordered to pay compensation, respectively, of $37.50 and $47.26, and fined $300), and a shoplifting offence (in respect of which he was fined $250).
Some aspects of the Pre-Sentence Report are difficult to reconcile. However, I will record what was before his Honour. The principal source of information available to its author was the respondent himself. Secondary sources were a statement of police facts, the respondent's criminal history, and NSW Corrective Services' records.
The author of the Pre-Sentence Report recorded that the respondent was born in New Zealand, the eldest of three children. His father left the family when the respondent was six years of age, and the respondent assumed parental responsibility. He left school in New Zealand at the age of 11 years, without completing primary school. He struggled with the responsibility he had undertaken in the family. By the age of 13 he was exhibiting behavioural problems and was sent by his mother to live with his father in the United States of America. There he attended high school and showed talent as a footballer. He soon ran away from his father's home and lived on the streets for a time, until rescued by his football coach. He has had limited contact with his father since that time. He remained in the United States for eight years, until his mother died and he returned to New Zealand for her funeral. He then decided to migrate to Australia. He holds both New Zealand and United States citizenship. He claims to have completed a business administration degree.
He married in 2005. He and his wife have four children, now aged between four and nine years. The family relationships are sound. His wife and children have been regular visitors since the respondent's incarceration. The respondent's wife confirmed that he has a high level of support from herself and the children, as well as his extended family, the Polynesian community and friends.
In 2001, in Australia, he began a finance company to educate and assist Polynesian families. He sold this business in 2005. He then took on work as a self-employed truck driver.
The respondent maintains his innocence of the shooting offences; he claimed to the author of the Pre-Sentence Report that he was acting in self-defence.
Also in evidence were testimonials from Bishop Manumaleuga (of an unidentified Christian church), Shawn Busken, a US attorney, and Monoa To'omata, of the Mission Australia Centre.

Victim impact statement

Finally, there was before his Honour a victim impact statement signed by Mr Cats. Mr Cats said that prior to these events, his psychological and emotional wellbeing were "fine", but that the stress caused by the offences had affected him and his family psychologically, emotionally and financially. He said he was not able to work and was forced to relocate his family. His sleep has been disturbed, he is fearful of a return of the people who pursued him, he has nightmares about being shot in the head and suffers self-motivation and depression problems. His children are also affected because his fear has caused him to restrict their activities. He said that the emotional strain that the offences had placed upon himself and his wife were "indescribable". He said that he no longer has full use of his hand as the nerves had not mended after surgery. He suffers pain in the knee in cold weather. He said that he was now unable to practise his trade (of building and carpentry) and his ability to earn income was reduced by two-thirds. He is receiving psychological treatment.
He finished his statement by saying: "Unless they are subjected to it, no one can ever imagine the toll this has taken on me mentally and physically. I don't wish this on anyone and I believe that we as a community need to stand up to mindless thugs who victimise innocent people who try to make a living. MY LIFE WILL NEVER BE THE SAME."
The victim impact statement was tendered as part of the Crown's bundle of material relevant to sentence. No objection was taken to its admission. However, somewhat unusually, a point concerning the use to which it could be put was taken. In written submissions, counsel who represented the respondent submitted: "… that the Court would take with some scepticism what Mr Cats says in the VIS." This was repeated in the oral submissions. Importantly, counsel said: "One thing Mr Cats fails to mention in particular in that statement and didn't really like talking about, was his bankruptcy. It's his bankruptcy which prevents him from earning more than, I think it's $40,000 a year. In the victim impact statement, he's claiming that it's his injuries that prevent him from earning $75,000 a year."
Counsel also contrasted the content of the victim impact statement concerning permanent physical injuries with the medical evidence in the trial, and urged that "Mr Cats was not a truthful person", and that, therefore, reliance could not be placed on the content of his victim impact statement.

The Remarks on Sentence

It is in respect of the findings concerning the respondent's personal circumstances, and the manner in which they were treated, that the transcript of the Remarks on Sentence is (by reason of the technical fault in the recording system) deficient. What can be discerned is the following.
Robison DCJ considered the respondent's criminal record, and treated him as, essentially, a person of good character. He paid careful attention to the testimonial material, and to the evidence of the respondent's wife.
He recognised that the offences were serious. He took into account that the shooting offences took place in a public place, in the vicinity of a TAFE college, but noted that there was no reliable evidence that any member of the public was actually present or close by or put at risk. He agreed with the Crown submission that the evidence disclosed "criminality of a very high order".
In the course of recording the factual matters disclosed by the evidence in the trial, Robison DCJ alluded to certain inconsistencies between the evidence given by Mr Cats, and other evidence, and said: "The jury no doubt considered exhibit A [Exhibit A in the trial appears to have been some sort of diagram illustrating the location of injuries to Mr Cats] and although that document and what it revealed may be somewhat inconsistent with the evidence of Mr Cats, at the end of the day, undoubtedly Mr Cats sustained the injury that he said was sustained and given that these events were undoubtedly traumatic for him I would not be surprised if there were some inaccuracies in the evidence of Mr Cats when it came to the precise location of all of the participants in all of this." (italics added) He also noted: "Mr Cats was admitted to Liverpool Hospital for a number of days and I note certain medical procedures were undertaken."
Later, in the second set of Remarks (and before the recording equipment failed) he accepted that Mr Cats "did receive some injury", but further said: "… I accept ultimately by and large he has recovered at least physically from those injuries but I have taken into account his victim impact statement."
In the second set of Remarks his Honour made extensive reference to the trial evidence of Mr Cats. It is unnecessary to go into detail, but it is clear that Mr Cats' credibility was significantly in issue, and that attacks on his credibility bore fruit. Robison DCJ said, for example, that Mr Cats "was not an ideal witness" and that, in some respects, "his credibility may have been somewhat impaired when it came to surrounding issues". These observations have significance with respect to one of the matters that arises in the appeal.
It is apparent from some of the spasmodic recording that is available (or supplementation of the recording) that his Honour gave careful attention to the Pre-Sentence Report. Having regard to the testimonials, he accepted that the offences were totally out of character.
Pursuant to s 44(2) of the Sentencing Procedure Act he found special circumstances justifying reduction of the non-parole period and extension of the parole period. In respect of the possession of firearms offences, he allowed, in recognition of the respondent's (rather late) pleas of guilty, a reduction of 10 per cent on the sentences that otherwise would have been imposed: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383.
His Honour concluded that the sentences for those (possession) offences should be served concurrently, but that there should be a degree of accumulation in respect of the shooting offences. Accordingly, he ordered that the first shooting offence sentence be accumulated by 3 months upon the possession offences sentences, and the subsequent sentences each by 2 months.

The Crown appeal

The grounds (as amended) relied upon by the Crown were: "1. The sentences imposed by his Honour are manifestly inadequate. 2. The non-parole periods set by his Honour are manifestly inadequate."
In support of these grounds, in written submissions the Crown advanced a number of propositions. These were, essentially: (i) that each of the shooting offences merited the imposition of a sentence of a substantial period of full-time custody; (ii) that each of the firearms possession offences likewise merited the imposition of a sentence of full-time custody; (iii) that the discrepancies between the maximum sentences applicable to each offence (and, in the case of the possession of a prohibited firearm offence, the prescribed standard non-parole period) and the sentences imposed are such as to suggest that inadequate weight was given to the statutory maxima (and the standard non-parole period) in the sentence determinations; (iv) that the sentences imposed, and the non-parole periods fixed, suggest that inadequate weight was given to the objective gravity of the offences, and in particular to the injuries inflicted on Mr Cats; (v) that the Remarks on Sentence, and the sentences imposed, suggest that undue weight was given to the personal circumstances of the respondent, in particular to the fact that he had not previously served a term of imprisonment; (vi) that the shooting offences were aggravated, and the respondent was liable to a more severe penalty, because the injuries, emotional harm and loss and damage suffered by Mr Cats were substantial in that he was rendered incapable of future work in his trade and hardship was inflicted on him and his family (in this respect, specific reference was made to the victim impact statement); (vii) that the offences were aggravated, and the respondent was rendered liable to a more severe penalty, because the shooting offences were committed in public, in the vicinity of a TAFE college, and near a public bus stop, and therefore without regard for public safety; (viii) that, by limiting the accumulation of the sentences as he did, his Honour imposed an overall sentence that failed properly to reflect the totality of the respondent's criminality; and (ix) that the overall non-parole period imposed did not represent an adequate minimum term that the respondent must serve, commensurate with the objective gravity of the offences and the need for specific deterrence to be reflected.
An important plank in the Crown's argument (although not one on which the Crown case solely depended) concerned the physical and other injuries, and loss and damage, occasioned to Mr Cats as a consequence of the shooting offences. It will be necessary to return to this issue.

Consideration

Sentencing for the offences is governed by Pt 3 of the Sentencing Procedure Act, of which s 21A is an integral and important component. Section 21A(2) sets out the aggravating factors that, where known and applicable, must be taken into account in the sentencing exercise. Section 21A(3) similarly lists mitigating circumstances that, where known and applicable, must be taken into account.
By a suffix to s 21A(2), the court is not to have regard to any specified aggravating factor that is, in any event, an element of the offence. Nor is the court to take into account as an aggravating factor a circumstance that is "an inherent characteristic" of the offence: Elyard v R [2006] NSWCCA 43; 2006 45 MVR 402. Before an aggravating factor may be taken into account it must be proved beyond reasonable doubt: R v Wickham [2004] NSWCCA 193.
Relevantly, for present purposes, s 21A(2)(g) expressly provides that a sentencing court must take into account as an aggravating factor: "… [that] the injury, emotional harm, loss or damage caused by the offence was substantial." A further aggravating factor, specified in sub-para (i), is: "… [that] the offence was committed without regard for public safety."
It was not in issue that each offence, taken individually, called for a period of imprisonment. The Crown's propositions (i) and (ii) may be accepted.
In light of the decision of the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, propositions (iii), (iv) and (v) must be treated with considerable caution. Each asserts attribution of inadequate or excessive weight to one of the recognised sentencing considerations - inadequate weight assigned to the statutory maximum penalties and standard non-parole period, and to the injuries inflicted on Mr Cats, and excessive weight assigned to the respondent's personal circumstances. No attempt was made to identify any passage in the sentencing remarks that indicated an overemphasis on personal circumstances, or under-emphasis on the statutory maximum penalties. Rather, the contention was put forward in an attempt to explain what were said to be erroneously light sentences.
It is not uncommon, in Crown appeals, where specific error of the kinds mentioned in House v The King [1936] HCA 40; 55 CLR 499 cannot be identified, to seek to infer (or hypothesise) that what is asserted to be an erroneous exercise of sentencing discretion can be laid at the door of an erroneous attribution of weight to one or more of those sentencing considerations. That approach may no longer be legitimate (if it ever was). In Bugmy, the plurality made it plain that the weight to be attributed to particular sentencing considerations is a matter for the sentencing judge: see [24]. The plurality went on to say: "The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by [the sentencing judge] was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the court was satisfied that [the sentencing judge's] discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards." (internal citations omitted) The question to which this Court must address itself, therefore, is whether it is satisfied that Robison DCJ's sentencing discretion miscarried, because he imposed a sentence that was below the range of sentences that could justly be imposed for the offences consistently with sentencing standards. It is propositions (viii) and (ix) to which this Court must direct attention. Although the amended ground of appeal challenged the individual sentences, propositions (viii) and (ix) are directed, not to the individual sentences, but to the overall sentence imposed after accumulation. Did the overall head sentence fail adequately to reflect the totality of the respondent's criminality? Did the overall non-parole period of 4 years and 10 months fail to represent an adequate minimum term to be served in the light of the totality of the offending? In answering these questions, propositions (vi) and (vii) are material.

Section 21A(2)(g): was substantial harm caused by the shooting offence?

The Crown argument in support of proposition (vi) centred heavily upon the extent of the injuries occasioned to Mr Cats, and the emotional harm and loss and damage suffered by him as a consequence of the shooting offences. These, it was the Crown case, established the aggravating factor specified in s 21A(2)(g) of the Sentencing Procedure Act. It may here be noted that the offences of which the respondent was convicted were of shooting with intent to cause grievous bodily harm. That grievous (or any other) harm was in fact caused is not an element of the offences and is not for that reason excluded from consideration by the suffix to s 21A(2). However, it might be expected that shooting at a victim with intent to cause grievous bodily harm would cause some degree of anxiety, fear, or other emotional harm. Such harm is intrinsic to the offence and, to the extent that it is, is excluded from consideration.
As I have mentioned above, in his Remarks on Sentence, Robison DCJ made only sketchy reference to the physical injuries suffered by Mr Cats, and none to any emotional impact on him, or other loss or damage. He made no reference to financial loss. There is no indication in the second set of Remarks, inadequately transcribed as they are, to suggest that any finding within s 21A(2)(g) was made. Even if it were open to this Court to make its own findings of fact in that regard, none of the trial evidence was put before the Court, and this Court has no basis on which to make such findings of fact.
The only material before this Court relevant to the question of "substantial harm" is that contained in Mr Cats' victim impact statement, upon which the Crown placed considerable reliance. That raises squarely the question of the status of such a document.
Division 2 of Pt 3 of the Sentencing Procedure Act makes provision for the admission of victim impact statements. Section 28(1) relevantly provides as follows: "(1) If it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. …" At the time of sentencing, s 28(4) relevantly provided as follows: "Despite sub-sections (1) … a court: (a) must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, (b) …" (Sub-section (4) has since been amended, but in a manner that is not material to this appeal.)
Sub-section (1) is sufficient authorisation for the reception by Robison DCJ of Mr Cats' victim impact statement. However, s 28 does not elucidate what use may be made of a victim impact statement. The absence of guidance as to the use of such statements was described as "unfortunate" by Basten JA in R v Thomas [2007] NSWCCA 269 at [37].
What must be clearly stated is that, in this case, the Crown seeks to rely upon the content of Mr Cats' victim impact statement as evidence - the only evidence to which this Court was directed - to establish an aggravating feature of the offences. That is the aggravating factor provided for by s 21A(2)(g), extracted above.

What use can be made of a victim impact statement?

Although the question has been raised on a number of occasions, this Court has yet to reach a consensus on the use to which a victim impact statement may be put. It may be that it is not possible to reach such a consensus, and that each case will depend upon its own facts and circumstances. A brief review of how the issue has been dealt with on previous occasions may be useful.
In 1992, in R v RKB (NSWCCA, 30 June 1992, unreported) Badgery-Parker J, with whom McInerney and Loveday JJ agreed, said: "… undoubtedly the court is required to take into account the impact of criminal behaviour upon victims of that behaviour and has always done so … But what has to be taken into account is some objective assessment of the effect upon the victim … The sentencing process is necessarily one to be undertaken with objectivity, and one cannot expect that from the victims of criminal behaviour …"
It must be acknowledged that these remarks were made in the context of a consideration of whether an attitude of forgiveness on the part of the victims (of child sexual offences) and other family members could or should be taken into account on sentencing. But the principle stated is of broader application, and extends to the assessment for the purposes of s 21A(2)(g) of the degree of harm caused by the offence.
R v Slack [2004] NSWCCA 128 was another case of sexual intercourse with a victim under the age of 16 years. The sentencing judge expressly took into account a victim impact statement, which, she said "eloquently and articulately describes how the commission of the offences has affected" the victim. Having regard to the victim impact statement, her Honour rejected a submission made on behalf of the offender "that there was no trauma associated with the offence". On application for leave to appeal against sentence, this finding was challenged. Sperling J, with whom Grove J and I agreed, acknowledged that harm to the victim of an offence is a relevant sentencing consideration. He then referred to s 28 of the Sentencing Procedure Act (including sub-s (4)) and said: "60 … The implication is that a victim impact statement may, in the discretion of a court, be received and taken into account as evidence of harm caused by the offence and, in that way, as evidence relevant to the determination of punishment by sentence. 61 Whilst a sentencing hearing is not subject to the rules of evidence unless an order to that effect is made and whilst s 28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine. In RKB … it was acknowledged that a sentencing court is required to take into account the impact of criminal behaviour on the victim or victims of such behaviour but, it was said, what is required is an objective assessment of the crime's effect. 62 The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim's own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim." (italics added)
The language of para [62] echoes that of Hunt J (as he then was) in R v Muldoon (NSWCCA, 13 December 1990, unreported), another case of child sexual abuse. Hunt J was critical of both a pre-sentence report, and a victim impact statement. It seems that the victim impact statement had been prepared by a social worker. The social worker purported to predict long-term consequences for the victim. This was rejected by the sentencing judge, who considered that the effects of the abuse would "fade in time". That gave rise to a Crown appeal. Of the victim impact statement, Hunt J (with the concurrence of Enderby and Grove JJ) said: "Indeed, it is difficult to see how anyone can really make a valid assessment of what will happen to a particular young victim in the future without a great deal more material than the judge was given here. What would be of far more assistance to sentencing judges in these cases than the shallow, trite and apparently wholly unqualified observations produced in this case would be the results of studies conducted over a significantly broad base and over a significant period of time into the lasting effects of sexual abuse upon young children. With that type of assistance and, if necessary, with some psychiatric assessment from a qualified source, the judge will be in a far safer position to make his or her own assessment in relation to the particular victim."
These decisions must be seen in their historical context. In the early 1990s judges had not accumulated the experience of dealing with sexual offences against children that, by 2014, they (regrettably) had. It could scarcely, in 2014, be said that, in order to prove that sexual abuse of children causes substantial damage, the Crown ought to produce "the results of studies conducted over a significantly broad base and over a significant period of time". In no small measure, this is because those very studies have been conducted and are not only in the public arena but also in the public (and judicial) consciousness. Such damage is now assumed: see R v MJB [2014] NSWCCA 195 per Adamson J.
But, while its application to that specific class of offence has been limited by the passage of time, the underlying principle stated by Hunt J and Badgery-Parker J holds good. Where it is asserted that the offences caused injury, loss or damage beyond what would ordinarily be expected of the offence charged, that injury, loss and damage must be proved beyond reasonable doubt. The question here is whether that can be proved by an unsworn victim impact statement, not subject to testing by cross-examination.
Hidden J had to deal with that very question in R v Youkhana [2004] NSWCCA 412. That was a case of armed robbery, in which the victim had spoken of anxiety and nervousness as a result of the offence (in a statement made on the day of the offence). There was no evidence that that state of anxiety was enduring. In these circumstances, Hidden J said: "26 However, before a judge could find 'substantial emotional harm' within the meaning of s 21A(2)(g), one would expect evidence specifically directed to that issue. Normally, that would be in the form of a victim impact statement. Whether that evidence established the aggravating factor would be a matter to be determined in the circumstances of the particular case. However, it would need to disclose an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery. There was no such evidence here."
Similarly, in R v Berg [2004] NSWCCA 300, Wood CJ at CL said: "48 However, I would sound a note of caution in relation to the proper approach to fact-finding concerning the impact of a crime upon other members of the community or, upon the victim. If that is to be achieved by way of victim impact statements, then an injustice may occur in relation to a person standing for sentence, in so far as the maker of the statement would not normally be available for cross-examination. 49 I add that caution in support of the general proposition that extreme care needs to be taken by those who prosecute and defend these cases, and also by trial judges in always ensuring that there is a proper evidentiary basis for any findings of fact which go towards aggravating or mitigating a sentence."
R v King [2004] NSWCCA 444; 150 A Crim R 409 was a somewhat unusual case. The offender pleaded guilty to a single count of malicious wounding with intent to cause grievous bodily harm. The victim of the offence was pregnant. The offender sought to persuade the victim to have the pregnancy terminated, but she declined to do so. The offence was constituted by the offender's punching the victim in the stomach. The punch in the stomach caused a miscarriage. The victim gave evidence in the sentencing proceedings, and was extensively cross-examined on behalf of the offender. The victim impact statement she made was admitted without objection. Cross-examination did not challenge anything in the victim impact statement.
On those facts, McColl JA (with whom Howie and Buddin JJ agreed) accepted that the victim impact statement demonstrated that the victim had suffered permanent loss of great significance to her.
R v Wilson [2005] NSWCCA 219 was another case of malicious wounding and assault occasioning actual bodily harm. A victim impact statement was admitted. I observed that, while it is always open to an offender to challenge the factual basis of the case advanced by the Crown, there was no provision either for or against cross-examination of the author of a victim impact statement. I said: "28 It may be, in an appropriate case, that a sentencing judge would decline to accept a victim impact statement, or attribute to it less weight than otherwise might be the case. This could arise where (as, arguably, happened here) the Crown sought, by way of a victim impact statement, to establish matters seriously going to the assessment of the objective gravity of the offence that were either in issue or not conceded."
However, I went on to hold (with the concurrence of Barr and Latham JJ) that in all of the circumstances of that case, undue weight had not been given to the victim impact statement. The relevant circumstances included:

the victim impact statement was admitted without objection;
no argument was advanced as to the weight to be accorded to the victim impact statement;
no attempt was made (by experienced counsel) on sentencing to limit the use to be made of the contents of the victim impact statement;
the contents of the victim impact statement "could hardly be the cause of any surprise" to the offender;
the contents of the victim impact statement accorded with conclusions the sentencing judge would in any event have drawn.

In R v Bain [2006] NSWCCA 79; 161 A Crim R 36 the offender was convicted of armed robbery after trial. A victim impact statement attested to the significant emotional harm he suffered as a result. Sully J (with Adams J concurring) upheld a submission that it was an error on the part of a sentencing judge to accept a victim impact statement as sufficient to prove beyond reasonable doubt that harm had been suffered by the victim to a greater extent than would ordinarily be expected in a victim of an armed robbery. (In order to qualify as "substantial harm" within the meaning of s 21A(2)(g), the harm needs to be shown to be greater than ordinarily attaches to an offence of the kind in question. That is because the prescribed maximum penalties already take into account harm of the kind expected.)
Sully J referred to Youkhana, and said: "10 This exposition of principle requires a sentencing Judge to do two distinct things before finding that the s 21A(2)(g) factor has been established. 11 First, the Judge must consider whether there is in hand evidence capable of establishing at all the incidence of, relevantly, emotional harm of the 'more deleterious' kind described by Hidden J [in Youkhana]. 12 It seems to me to be plain that [the victim's] description of a congeries of serious and continuing adverse personal consequences stemming from the applicant's crime is ample to satisfy Hidden J's criterion. 13 Secondly, and given an affirmative answer to the first question thus to be asked by the sentencing Judge, the Judge must then consider whether the contents of the victim impact statement have 'established the aggravating factor [which is] a matter to be determined in the circumstances of the particular case'. 14 What does that actually mean? The applicant submits that it means at least this: that a finding that any of the s 21A(2) aggravating factors has been established must be a finding made beyond reasonable doubt; and that, at least as a general rule, that cannot be done simply by accepting and acting upon a victim's own description made in a statement that is both unsworn and untested by cross-examination. 15 In the current state of the law I am of the opinion that such submission must be accepted …" (italics in original, bold added)
In R v Deng [2007] NSWCCA 216; 176 A Crim R 1 an offender pleaded guilty to an offence of malicious wounding with intent to cause grievous bodily harm. A victim impact statement, attesting to significant consequences, including loss of employment, was tendered. The sentencing judge, applying Slack, was not satisfied that the emotional and financial harm to the victim was substantial. James J (Mason P and Hislop J concurring) held that it was open to the sentencing judge to take that view. He, too, relied upon the observations of Sperling J in Slack.
In Thomas (cited above) Basten JA said: "… it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim."
The offender in R v Porter [2008] NSWCCA 145 pleaded guilty to two counts of break, enter and steal and five counts of arson. Victim impact statements were tendered without objection. The "victim impact statements" were not victim impact statements within the meaning of s 28 of the Sentencing Procedure Act (because the offences were not offences to which Pt 3 Div 2 of the Sentencing Procedure Act applies). Johnson J held that, because at common law loss or damage suffered by a victim is a factor to be taken into account in the sentencing process (see, for example, Siganto v The Queen [1998] HCA 74; 194 CLR 656) statements to that effect were admissible. No argument appears to have been directed to the court concerning the capacity of evidence in that form to establish, beyond reasonable doubt, an aggravating factor.

What do these decisions establish?

By s 28 of the Sentencing Procedure Act, victim impact statements are part of the landscape in the sentencing process. That is not in issue. What is here in issue is the extent to which a victim impact statement can be used to prove an aggravating factor of the kind specified in s 21A(2). Almost invariably the aggravating factor in question is that specified in s 21A(2)(g). It is to be remembered that such aggravating factors must be proved beyond reasonable doubt.
In some of the cases considered above, considerable weight was attached to the manner in which the sentencing process was conducted. Where no objection was taken to the victim impact statement, no question raised as to the weight to be attributed to it, and no attempt made to limit its use, the case for its acceptance as evidence of substantial harm has been considered to be strengthened. (It is, perhaps, a little unfair to take into account that no objection to the admission of the statement was taken, given that such statements are admissible by statute, but that does not preclude argument as to the weight to be attributed to them.)
Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents.
Difficulties can arise, for example, where:

the facts to which the victim impact statement attests are in question; or
the credibility of the victim is in question; or
the harm which the statement asserts goes well beyond that which might ordinarily be expected of that particular offence; or
the content of the victim impact statement is the only evidence of harm. RP is an example of the third of these.

In these cases, considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard.
That brings me back to the facts of this case. It may be accepted that the offences committed against Mr Cats were of the kind that could have caused, and might be expected to have caused, substantial harm, both physical and emotional. But "substantial" is a relative term. To what extent was the harm caused to Mr Cats "substantial"? If, as is at the heart of the Crown contention, it is asserted that the harm caused to Mr Cats was greater than might have been expected as a consequence of his being shot at three times from close quarters, then that had to be established beyond reasonable doubt.
Other evidence suggested that, while Mr Cats undoubtedly suffered physical injury, he fortunately made a significant recovery. Further, his credibility was, on the assessment of the sentencing judge, subject to considerable doubt. That doubt must attend his assertion of financial loss and ongoing disability.
In my opinion, in the circumstances of this case, the victim impact statement could not be used to prove beyond reasonable doubt that the injury, loss and damage caused by the offences was more substantial than could ordinarily be expected of such offences. That does not mean that substantial injury, loss and damage were not proved - substantial physical injury was proved by evidence in the trial. As mentioned above, physical injury is not an element of the shooting offences. Robison DCJ expressly took into account the evidence of physical injury (see [30] above). The victim impact statement could not be used to extend the assessment of the degree of emotional harm, or other loss and damage (including financial loss) beyond that that could ordinarily be expected in the circumstances of the offences, or that which was proved by other evidence. The Crown has not established error in a failure to take into account loss and damage, including financial loss and damage, extending beyond what is encompassed in offences of the kind of which the respondent was convicted.

Section 21A(2)(i): the offences were committed without regard for public safety

The shooting offences were committed in a public place, in the vicinity of a TAFE college, in daylight. I would therefore accept that they were indeed committed without regard for public safety. The question that arises in respect of the Crown's proposition (vii) is not whether the offences were aggravated by that circumstance, but whether Robison DCJ failed to take it into account.
In that part of the Remarks on Sentence (and before the failure of the recording equipment), in which his Honour was considering aggravating and mitigating circumstances, he made express reference to the fact that the shooting offences were committed in a public place, near a TAFE college, a car park, a public road and a bus stop. He observed that it could be expected that members of the public would use the area. He added, however, that there was no reliable evidence that there was in fact any member of the public in the immediate vicinity, and no direct evidence that any member of the public was in fact put at risk. It is clear, in my view, that in saying this he had in mind s 21A(2)(i).
Although the aggravating factor stated in s 21A(2)(i) was established, these remarks show that it was properly assessed and taken into account to an appropriate degree.

The statutory maximum penalties

In proposition (iii) the Crown drew attention to the maximum sentences provided for the offences, and the standard non-parole period provided in relation to one of the firearms possession offences, and argued that the "discrepancies" between those sentences and the sentences actually imposed suggests that inadequate attention was given to the statutory maxima.
In relation to the firearms possession offences the statutory maxima were imprisonment, respectively, for 14 years (standard non-parole period 3 years), and 10 years. The sentences imposed were imprisonment, respectively, for 2 years and 11 months, with a non-parole period of 2 years, and for a fixed term of 1 year, 1 month and 15 days. These sentences include a reduction of 10 per cent to reflect the utilitarian value of the respondent's pleas of guilty. It is not clear that his Honour made any express findings about the objective gravity of those offences. To the extent that he may have done so, it appears to have been in that part of the sentencing remarks that are affected by the failure of the sound recording. In one passage he is recorded as saying: "When it comes to the firearm offences certainly there is no evidence [that they were loaded] but they were certainly found." (square brackets in original, perhaps suggesting subsequent insertion)
There is (on the material before this Court) no evidence of the circumstances in which the firearms were stored, nor for how long or for what purpose the respondent had them in his possession. It is not possible for this Court to make any greater assessment of the objective gravity of those offences. That being so, it is not possible for this Court to hold that inadequate attention was paid to the statutory maxima or the standard non-parole period.
The shooting offences attract a statutory maximum penalty of imprisonment for 25 years. Robison DCJ recorded this. In respect of each, the respondent was sentenced to imprisonment for 8 years with a non-parole period of 4 years and 3 months. There is no clear finding by the sentencing judge as to the level of objective gravity of these offences. So far as I can see, the Crown simply asks this Court to infer, from the gap between the statutory maxima and the sentences imposed, that due regard was not paid to the former. I am not prepared to draw that inference. It is frequently the case that, in practice, the upper range of sentences actually imposed for particular offences is somewhat less than the maximum prescribed. That is, in part, because, as is well established, the maximum sentence is reserved for the most serious offences of the relevant kind.
Nothing was put before this Court by the Crown to suggest that the sentences imposed lie outside the range of sentences ordinarily imposed in cases of its kind. The range actually imposed is of use to sentencing judges, and to this Court, as representing "the accumulated experience and wisdom of first instance judges and of appellate courts" and as "a yardstick against which to examine a proposed [in the case of sentencing judges (or imposed)] sentence": Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520. This Court was not referred to any cases that might stand as a useful precedent. I am not, in these circumstances, prepared to find that the sentences of 8 years were imposed without due regard to the statutory maxima.
The final question raised by the appeal is the degree of accumulation. That question encompasses the question of the totality of the offending. Questions of accumulation or concurrence are, like the weight to be given to particular sentencing considerations, within the province of the sentencing judge. However, just as an excessive level of accumulation may produce a sentence that is manifestly excessive, so also may an inadequate level of accumulation produce a sentence that is manifestly inadequate. The salient feature is the totality of the offending. The question is whether the totality of the offending is appropriately represented in the totality of the sentences.
This comes back to the question identified in Bugmy: was the overall sentence of imprisonment for 8 years and 7 months below the range of sentences that could justly be imposed for the offences consistently with sentencing standards? The same question must separately be asked of the overall non-parole period.
As mentioned above, the Court was not given any information about "sentencing standards" with respect to offences of the kind in question. Counsel for the respondent put before the Court some statistical material provided by the Judicial Commission of NSW. That material is, as always, of limited value, since it does not provide information about the particular offences concerned, or the particular offenders. So far as it gives any information, it does not support the proposition that the overall sentence imposed on the respondent was below the range legitimately available.
The same applies to the overall non-parole period.
Accordingly, I would dismiss the Crown appeal.
Before doing so, however, I repeat what I said in R v DH; R v AH [2014] NSWCCA 326. The High Court has made it plain that Crown appeals are to be brought for the purpose of establishing principle, and has distinguished that from (mere) "correction of error": Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462.
In this case, as in DH; AH, no principle sought to be established was identified. It is not sufficient, in my opinion, to hypothesise that a sentence about which complaint is made might (or must) have come about as a result of the attribution of excessive weight to one consideration, or the attribution of inadequate weight to another. The Crown must identify error of one of the kinds mentioned in House v The King [1936] HCA 40; 55 CLR 499 and must, further, identify some sentencing principle that arises. That has not here been done.
I propose, therefore, that the Crown appeal be dismissed.
WILSON J: I agree with Simpson J.

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