R v Wilson

the application for leave to appeal 20 Two grounds in support of the application for leave to appeal were pleaded. These were as follows: "1. The sentences are manifestly excessive. 2. His Honour, the sentencing judge, erred in accumulating the sentence in relation to Count 2 on the Indictment."

21 Counsel who appeared for the applicant pointed out that, when the discount of 25% is factored back into the sentence imposed in respect of Count 2, the offence against Mr Gresham, the starting point must have been a sentence of six years and eight months. This is only four months less than the statutory maximum of seven years. The starting point in respect of Count 3, the offence against Mr Keegan, must have been three years and four months, against the same statutory maximum, and the sentence in respect of Count 4, the offence against Mr Zenthon, was of two years and two months, against a statutory maximum of five years. 22 The point made by counsel for the applicant is fairly stark in relation to Count 2, but less significant in relation to the other counts. It is simply that the offences were not such as to be properly classified as in the worst category of case, calling for, or warranting, a sentence very close to the statutory maximum, before the discount for a plea of guilty. In my view, the sentences imposed in respect of Counts 1 and 3 cannot reasonably be said to be approaching the statutory maximum. I would reject this aspect of the application in respect of those counts. The point made in respect of Count 2 calls for more consideration. 23 Counsel who appeared for the Crown on the application argued that it was open to his Honour to regard the offence against Mr Gresham as in the worst category of its kind. In doing so, counsel referred to the evidence of the injuries as outlined in the victim impact statement. This raised a question about the use that could legitimately be made, and the use that was in fact made, of the victim impact statements, particularly that relating to Mr Gresham. (In fact, evidence of the extent of the physical injuries was contained in the Expert Certificates given by the medical practitioners who treated the victims. There was and is no issue about the admissibility of these documents, or the use that could be made of them.) 24 Counsel who appeared on the application for leave to appeal took issue, to a point, with the use that could be made of the victim impact statements. He did this because, he argued, they contained assertions of fact seriously adverse to the applicant, that could not be challenged by cross-examination. At first sight, there is a good deal of common sense and justice in this proposition. 25 Victim impact statements are a particular species of evidence available to a sentencing judge. Special provision is made for the admissibility of victim impact statements in Division 2 of Part 3 of the Sentencing Procedure Act. By s28(1) a court may, if it considers it appropriate to do so, receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. Notwithstanding that, by sub-s(4)(a) a court 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. 26 These provisions have been the subject of consideration in this Court in R v Slack [2004] NSWCCA 128 in a judgment of Sperling J with which Grove J and I expressly agreed on this issue. Sperling J wrote: "[58] Harm to the victim of an offence is a relevant consideration. Henry [[1999] NSWCCA 111;] (1999) 46 NSWLR 346 at [95], Hall (NSWCCA 28 September 1995, unreported). It is a factor in aggravation. As such, the court must be satisfied as to the facts beyond reasonable doubt. The common law is now codified by s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 . [59] Her Honour would have had in mind the provision of s28(1) of that Act which provides that, if it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after the conviction but before sentence. [60] Section 28(4) provides that the court 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, and must not consider a victim impact statement given by a family victim in connection with the determination of the punishment of the offender unless it considers that it is appropriate to do so. ... 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 a 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 s28 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 (NSWCCA, 30 June 1992, unreported) 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. " (italicisation in [60] in original; emphasis in bold in [62] added) 27 Notwithstanding a plea of guilty, it is always open to an offender to challenge the factual bases of the case advanced by the Crown. Witnesses may be called for cross-examination to enable determination of disputed issues of fact. This may happen, particularly, where the Crown seeks to establish circumstances aggravating the offence. However, although there appears to be nothing in Part 3, Division 2 of the Sentencing Procedure Act to prevent it, it has not been customary for cross-examination to take place in relation to the contents of victim impact statements. S30A of the Sentencing Procedure Act permits a victim, or a member of the immediate family of the victim, or some other representative of the victim, to read out the whole or any part of a victim impact statement to the court after it has been duly received. The section does not appear to envisage that cross-examination on the content of the statement would be permitted. 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. That really provides the answer to the issue taken here. The victim impact statements were tendered without objection. No argument was addressed to whether their contents should be attributed weight or not. Experienced counsel who appeared for the applicant on sentencing made no attempt to limit the use his Honour was to make of the quite substantial matters contained in the statements, particularly that relating to Mr Gresham. 29 Further, having regard to the nature of the attack upon Mr Gresham, and the uncontestably admissible medical evidence, that part of the victim impact statement which dealt with his distress and its aftermath could hardly be the cause of any surprise. Had there been any issue about the factual matters concerning the demolition of Mr Gresham's career prospects, that could have been remedied by admissible evidence. This Court was told that Mr Gresham was himself personally present at at least part of the sentencing proceedings. 30 In any event, Woods DCJ was alive to the questions which attend the weight to be given to victim impact statements. He recorded that he had read the statements relating to Mr Keegan and Mr Zenthon, and had heard part of that relating to Mr Gresham read. He no doubt had read the remainder of that statement himself. He went on to say: "Parliament has said, and I note, that it is one of the functions of the court to listen to what victims say about the consequences for them of crimes committed against them, and Ms [Gresham] has had the opportunity of reading the documents. I note that. It does not cause me to increase the sentence that I otherwise would have imposed. Our system does not cast upon victims, or their relatives, the duty of obtaining a remedy in the courts, especially the criminal court, but it does allow victims the opportunity to ventilate their pain and suffering before the public tribunal which is the sentencing court, and that has occurred in this case. Nothing that appears in the victim impact statements is beyond conclusions that I would have otherwise drawn anyway in general terms from the nature of the offence as admitted in the agreed facts, the photographs, (particularly the photograph of the knife which was the instrument of these assaults) and the other material before me. Nonetheless I note that material from the victims." 31 It is of some significance that his Honour made no express reference to the alleged economic impact of the offence upon Mr Gresham nor to the psychological material. In those circumstances I am of the view that it cannot be established that undue weight was given to the contents of any of the victim impact statements. 32 The circumstances referred to above are, as the Crown suggests, certainly relevant to a proper assessment of whether the offences, or any of them, should have been treated as "worst category". However, they are not the only considerations. As against them, the applicant was entitled to some recognition of his youth and his prior almost clear criminal record, as well as the mostly positive assessments of his prospects of rehabilitation. The offence was quite spontaneous, showing no sign of premeditation or planning. The applicant voluntarily handed himself in to police almost immediately after the commission of the offence. Notwithstanding these considerations, it may be, as the Crown submitted, that it would have been open to the sentencing judge to find that the offence against Mr Gresham was a "worst case" or close to it. But his Honour did not make such a finding, and such a finding was not inevitable, in the light of the subjective features I have mentioned. In the absence of an express finding that the offence ought to be treated as in the worst category of offences of its kind, I do not think it was open to his Honour to commence with a sentence as close to the statutory maximum as he did. 33 In my opinion, on this basis, the applicant has made good this aspect of this ground of appeal. 34 Counsel also pointed to the circumstance that all offences could have been dealt with summarily. I do not think that this is, in this case, a relevant consideration, or at least one of any real weight. Even though offences against s35(1)(a) and s59(1) of the Crimes Act can, when appropriate, be disposed of in a Local Court, the offences here before the court were not such as to be appropriately prosecuted in that court. 35 It may be that it was because of the s33 offence, with which the Crown did not proceed, that all charges were brought in the District Court; nevertheless, in my view, even excluding the s33 charge, the offences were of such gravity that it was appropriate that they be prosecuted in the District Court. 36 Counsel also identified a number of other cases brought under s35(1)(a), all of which resulted in sentences much more lenient than the aggregate imposed here, or the sentence imposed in respect of Count 2. I have not found these references to be very useful. There is insufficient information as to the overall circumstances. Indeed, the Crown helpfully expanded the information concerning those cases. Even so, while comparable cases may frequently be useful, in my opinion these are of limited assistance. Among other things, the applicant cannot avoid the circumstance that he stood to be sentenced for three offences.