R v WITCHARD

LEGISLATION CITED: Criminal Appeal Act 1912 Crimes Act 1900

Dinsdale v The Queen (2000) 202 CLR 321 Everett v The Queen (1994) 181 CLR 295 Pearce v The Queen (1998) 194 CLR 610 R v Baker [2000] NSWCCA 85 CASES CITED: R v Fernando [2002] NSWCCA 28 R v Henry (1999) 46 NSWLR 346 R v Jerrard (1991) 56 A Crim R 297 R v Vranic (NSWCCA, 7 May 1991, unreported) R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168

PARTIES: The Crown (Appl) Kevin Allan Witchard (Resp)

COUNSEL: V Lydiard (Crown/Appl) C B Craigie SC (Resp)

SOLICITORS: Director of Public Prosecutions (Crown/Appl) Aboriginal Legal Service (Resp)

IN THE COURT OF CRIMINAL APPEAL 2007/357

McCLELLAN CJ at CL HIDDEN J ROTHMAN J

TUESDAY 19 JUNE 2007 R v WITCHARD, Kevin Judgment 1 McCLELLAN CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912. 2 The respondent Kevin Witchard pleaded guilty to two charges being:

1. Robbery in company contrary s 97(1) of the Crimes Act 1900 for which the maximum penalty is 20 years imprisonment.

2. Assault with intent to rob with wounding contrary s 98 of the Crimes Act 1900 for which the maximum penalty is 25 years imprisonment with a standard non-parole period of 7 years. 3 The respondent was also sentenced in relation to three matters on a s 166 certificate being common assault (s 61); assault officer in the execution of his duty (s 58) and resist officer in the execution of his duty (s 58). 4 The respondent was arrested on 21 January 2006 and was refused bail. He appeared at the Penrith Local Court on 20 October 2006 when he pleaded guilty to both the s 97(1) and s 98 matters. He was sentenced on 14 December 2006 as follows:

(a) Robbery in company. A non-parole period of 18 months to date from 31 May 2006 and to expire on 30 November 2007. A further parole period of 2 years to commence on 1 December 2007 and expire on 30 November 2009.

(b) Assault with intent to rob - the same sentence as for the offence of robbery in company.

(c) In relation to the matters on the certificate the respondent was sentenced to 3 months imprisonment on each matter commencing on 31 May 2006. 5 Accordingly, the respondent was sentenced to a total non-parole period of 18 months with a further term of 2 years. 6 The Crown submitted that apart from a number of patent errors made by his Honour the sentences which were imposed were manifestly inadequate. 7 At the time of the offences the respondent was on bail for an assault of his girlfriend for which he was charged on 10 January 2006. He was subsequently sentenced for this assault to a term of seven months imprisonment with a total non-parole period of four months. For this reason his sentences for the matters the subject of this appeal did not commence until 31 May 2006. 8 Before he was sentenced for the current matters he was sentenced for the assault on his girlfriend. That sentence comprised a non-parole period of 4 months with an overall term of 7 months and was backdated to 21 January 2006.

The facts 9 The sentencing judge recited a summary of the facts in the following terms: "About 4.40 am on 21 January 2006, Mr Delaney, Mr Kemp and Mr McDonald were waiting on platform 1 of Kingswood railway station for an eastbound train. At the same time, the offender Witchard and co-offender Roberts and a friend Yeoman were standing on the opposite platform. Witchard crossed the railway tracks and climbed up onto platform 1 near the victim McDonald, who was standing at the western end of the platform. Witchard asked Mr McDonald if he had any money. Mr McDonald told Witchard that he did not have any money. Witchard asked an unknown commuter if he had any money. When the commuter failed to give Witchard any money, he returned to where the victim McDonald was standing and started to punch him to the face. As a result of being assaulted, Mr McDonald walked to the eastern end of the platform and began to cry. As Mr McDonald was walking away, Witchard was teasing him for crying and continued to punch him. At some stage during the assault of Mr McDonald, Roberts crossed the tracks and climbed onto platform 1 and approached Mr Kemp who was sitting on a seat near the entrance to the platform. At about the same time, Witchard walked over and stood next to the third victim Mr Delaney. Witchard punched Mr Delaney to the head area and said 'Give your money.' Roberts also made a demand for money from the victim, Mr Delaney, and punched him. Mr Delaney told Witchard that he did not have any money. Witchard continued to punch Mr Delaney. Witchard stopped punching Mr Delaney and retrieved a glass bottle of drink from the railway tracks. Witchard hit Mr Delaney over the head with it a number of times. This has caused two wounds to Mr Delaney's head. The wounds bled heavily. Witchard and Roberts attempted to forcibly take a bag that Delaney had with him. Mr Kemp was seated beside Mr Delaney and was watching the assault upon him. After his assault on Mr Delaney, Roberts turned and punched Mr Kemp and demanded money from him. When Mr Kemp told Roberts that he did not have any money, Roberts demanded cigarettes. Mr Kemp handed Roberts a packet of Winfield Gold containing one cigarette. At this stage, Mr Delaney walked towards the western end of the platform and activated the emergency help point. Witchard and Roberts left Kingswood railway station and attended a bakery located in a strip of shops on the opposite side of the Great Western Highway. Police attended the station and approached Witchard to place him under arrest. Witchard attempted to assault police and was tackled to the ground. Whilst on the ground, Witchard was twisting his body and throwing his arms around. He was restrained and arrested. Roberts was arrested a short distance away without incident. Roberts and Witchard were conveyed to Mt Druitt police station where they were charged. They were afforded the opportunity to participate in an electronic record of interview." 10 The co-offender, Roberts, was charged with robbery in company of Mr Kemp and assault with intent to rob Mr Delaney whilst in company. Roberts was not on bail at the time, and did not use a weapon and neither of Roberts' charges carried a standard non-parole period. Roberts received the same sentence as the respondent. The Court was informed that because the circumstances of the respondent and Roberts are accordingly distinguishable in consideration of the principles of double jeopardy the Crown has not appealed Roberts' sentences.

Subjective features of the respondent 11 The respondent is an Aboriginal man who was aged 18 at the time of the offences and 19 at the time of sentence. He is the fourth of six children. His parents separated when he was about 4 and he remained with his mother. 12 The respondent was educated to Year 8 and left school at the age of 15. He has been employed in a variety of labouring positions. 13 He has two children by two separate relationships. His daughter was born to the partner he assaulted 11 days prior to these offences. His children have visited him while he has been in custody. 14 The respondent has had considerable problems with drugs and alcohol. He commenced drinking at about age 13 and has mixed alcohol with drugs, including cannabis, amphetamines and ecstasy. He has not sought formal treatment for these problems. He has failed a urine test since being in custody where he has used cannabis.

The remarks on sentence 15 Having considered the circumstances of the offence the sentencing judge turned to consider the particular circumstances of both offenders. Of the respondent he said: "I will now turn to the matter of Mr Witchard. As I said, he was only 18 years old at the time. He said that he had a relationship with Sarah Markham and who was pregnant with their child when he - when she told him that the relationship was over. He became angry and he struck her and that was the assault charge for which he received three months imprisonment and of course, she was 34 weeks pregnant at the time and thus, since he has been in custody for this matter and that sentence, he missed out on the arrival of his child. He said that in regard to the offences, he is disgusted with his actions and he expressed his remorse and he had no memory of the night at all. He had had - been drinking bourbon and had imbibed 'Ecstasy' and marijuana. This is the first time he has been in gaol. He had one offence of possessing implements and then that matter of assault. Of course, as Miss Bryan pointed out, he was on bail for that assault, which is an aggravating feature under s 21A. His childhood was also beset with an atmosphere of alcoholism. His father was a heavy drinker and Mr Witchard himself began drinking at an early age and he began drinking with his father from the age of fourteen. He witnessed a lot of violence in the domestic situation. He started on cannabis when he was twelve and then graduated to 'speed' and 'ecstasy' at fifteen. He said he has realised, since he has been in custody, that he does not need it any more and he has ambitions of, when he is released, of getting a job and working and renewing his relationship with his children. He has another child by another lady. In fact, Sarah Markham herself gave evidence, confirmed the relationship broke up in January brought about by his heavy drinking and drugs. She said she has seen him in gaol and she is satisfied that he is sincere in the fact that he wants to be part of his children's life and that she is also confident that he will do anything in his power to change his behaviour. There is a pre-sentence report in respect of this gentleman. The probation officer refers to his upbringing and his education. It says that on 24 October, he was convicted of an internal charge of failing a urine test and received a penalty of 42 days off contact visits. A drug screening test conducted on the 8th revealed cannabis. In response to that, Mr Witchard said that he was going through a period of feeling depressed while he was in gaol and when he was offered the chance to use some cannabis, he did so, but he claims that he has abstained from it every since. In the summary and community based sentencing options, the officer says: 'Although co-operative with the service, the offender impressed as a rather glib young man who acknowledges that his substance abuse prior to entering custody was significant, but nevertheless appears to reject the notion that he will require assistance in the future to avoid relapse. This may be because he considers that he presently is drug-free, but he will need to develop a much stronger resolve to address drug and alcohol issues if he is to avoid further conflict with the law.' She goes on to say that he would, when released, be suitable for a medium to low level of intervention by the service. The individualised case plan would include strategies to address the following identified areas of crimino-genic need; substance abuse, violence issues and relationship issues. Of course, in Mr Witchard's case, there is the standard non-parole period to be considered, but as I said at the beginning, this case, it seems to me, does not fall within the parameters of cases to which that should apply. In addition to that, he has pleaded guilty at an early opportunity, so I do not think it is appropriate to consider the standard non-parole period for this offence in all the circumstances." 16 His Honour then said that because the whole incident occupied a short time and were "all one series of assaults" accumulation of the sentences was unnecessary. His Honour noted that the respondent did not have a significant record, the offences were not planned and the respondent had good prospects of rehabilitation.

Were there errors? 17 Although the respondent does not concede that the sentence was manifestly inadequate his counsel accepted that the proceedings were significantly flawed by the following patent errors made by the sentencing judge:

(i) A failure to properly consider or apply principles appropriate to sentencing for multiple offences, as expressed by the High Court in Pearce v The Queen (1998) 194 CLR 610.

(ii) Failure to follow the statutory framework or principles enunciated in relation to standard non-parole periods, as promulgated by this Court in R v Way (2004) 60 NSWLR 168.

(iii) Failure to identify and specify any allowance that might appropriately reflect the utility in the guilty plea.

(iv) In addition to the above errors which the respondent accepted were incontestable the respondent also accepted that there may be errors in relation to his Honour's assessment of the matter, specifically in relation to his failure to consider the guideline judgment in R v Henry (1999) 46 NSWLR 346 as having any relevance and possibly in the finding by his Honour of special circumstances. 18 The respondent accepts that the sentencing process was so infected by error that "it is arguable that the respondent was not properly sentenced at law." 19 In these circumstances the respondent urged this Court to remit the matter to the District Court for resentencing. In my view this is unnecessary and would only result in further delay and heightened anxiety for the respondent. I am satisfied this Court has available to it all of the evidence necessary to resentence.

Principles in relation to Crown appeals 20 This Court has, on many occasions, taken care to emphasise the principles governing appeals by the Crown. They were clearly defined by Wood CJ at CL in R v Wall [2002] NSWCCA 42 where his Honour said: "… it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion as to the appropriate sentence, for that of a sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error or latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; Wong & Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere; R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons" per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321, at para 61 and 62, and Wong & Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong & Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder & Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen para 62" (at [70]). 21 Wood CJ at CL referred to R v Baker [2000] NSWCCA 85 where Spigelman CJ said: "The authorities make it clear that Crown appeals should be rare. It may be that the present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified and the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred" (at [19]). 22 In Dinsdale Gaudron and Gummow JJ said: "In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been "upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." Was the sentence "manifestly wrong"? (at [22])

The submissions of the respondent on sentence 23 The respondent submitted that if this Court moved to resentence careful regard should be paid to the fact that the respondent was aged 18 years and 3 months at the time of the offence. The presentence report of Mr Ross Aitkin records factors of considerable disadvantage in the respondent's upbringing which it is submitted warranted consideration of the respondent having regard to the principles in R v Fernando [2002] NSWCCA 28. The respondent emphasised that he commenced drinking at the age of 13 or 14 and had become a "bender drinker who mixed alcohol and drugs." It was submitted that a history of drug and alcohol use with a background of childhood neglect and early exposure to substance abuse deserved consideration, being a circumstance of considerable disadvantage to a young person. It was submitted that although the respondent's drunken and aggressive state at the time of the offence did not excuse his conduct, nevertheless it was clear that the respondent's capacity to make rational judgments was compromised and accordingly deserved some consideration when sentencing. The respondent's background was further complicated by the fact that he had been diagnosed with an ADHD condition and had difficulty in sustaining long term relationships. 24 Counsel for the respondent stressed that this Court should accept the sentencing judge's finding that the offences were properly characterised as an opportunistic outbreak of drunken violence rather than typical robbery offences. The respondent accepted that even if the guideline in Henry was not applicable it could not be argued that the s 98 offence, in particular, was other than inherently serious. The respondent also accepted that although total accumulation was not appropriate, a degree of concurrence was and that accordingly, it was necessary in resentencing to consider the appropriate sentence for each offence and determine the extent to which they should be made concurrent. 25 It was submitted that given the age and circumstances of the respondent, the nature and close relationship between the offences, the total sentence imposed was either within the available range, albeit at the lenient end of such a range, or sufficiently close to that point as to argue against intervention. 26 The respondent tendered evidence which indicates that he is making progress towards his rehabilitation. He has participated in a number of educational programs and is regularly employed within the prison system. The reports of his progress are encouraging.

The Crown submissions 27 The Crown submitted that apart from the errors acknowledged by the respondent his Honour also fell into error by placing too much weight on the respondent's subjective features. It was submitted that the respondent's reliance on Fernando in this appeal is misplaced. The respondent was not from an isolated Aboriginal community but has been raised in an urban environment with access to schooling and conventional social contact. Although his offending occurred when he was seriously affected by alcohol and drugs it was submitted that the fact that he is of Aboriginal origin was of little relevance.

Conclusion 28 In my opinion not only were the errors identified by the Crown and accepted by the respondent present in the sentencing process there were other problems. His Honour failed to have regard to the fact that the respondent was on conditional liberty at the time of the offences. This was a seriously aggravating feature: see R v Vranic (NSWCCA, 7 May 1991, unreported); R v Jerrard (1991) 56 A Crim R 297. 29 I am satisfied that the sentencing judge should have carefully considered the Henry guideline. His reason for not doing so was said to be the objective circumstances of the offence. His Honour found that there was no planning but the offence was the result of a spontaneous act of hostility. However, the factual circumstances postulated by the Chief Justice in Henry at 380 included a "limited degree of planning". The complete list reads: 1. Young offender with no or little criminal history. 2. Weapon, like a knife, capable of killing or inflicting serious injury. 3. Limited degree of planning. 4. Limited, if any, actual violence but a real threat thereof. 5. Victim in a vulnerable position such as a shopkeeper or taxi driver. 6. Small amount taken. 7. Plea of guilty, the significance of which is limited by a strong Crown case. 30 For a case with these features a range of between 4 and 5 years imprisonment for the full term was said to be appropriate. 31 In my opinion the present offences were worse than those contemplated in Henry. The respondent committed the offences in company and used actual violence towards Mr McDonald and Mr Delaney. He had a criminal history for assault and was on conditional liberty at the time of the commission of the offence. He used a weapon, namely a bottle, with which he struck Mr Delaney over the head several times. Although the respondent pleaded guilty the Crown case was strong, the respondent having been arrested shortly after the incident, following the activation of the panic button at the railway station. To my mind an appropriate discount for the plea was 15 percent. The sentencing judge described the offences as spontaneous acts of hostility with the consequence that they were committed with a limited degree of planning as was contemplated in the Henry guidelines. 32 The sentencing judge determined that the standard non-parole was an irrelevant consideration because of the respondent's plea of guilty. This finding is inconsistent with the approach which the decision of this Court in R v Way (2004) 60 NSWLR 168 requires in relation to offences with a standard non-parole period. Notwithstanding the plea of guilty the standard non-parole period serves as a benchmark or guide post and his Honour should have considered whether the circumstances present in this case place the relevant offence in the middle range of objective seriousness and if not, how they relate to the middle range. 33 Although a successful Crown appeal against sentence should be rare, when significant errors have occurred in the sentencing process resulting in a sentence which is manifestly inadequate this Court should intervene. Consistency of sentencing is of fundamental importance to community confidence in the criminal justice system and provided that the resentencing process is tempered by considerations of the additional burdens provided by increasing a sentence which has already been imposed, a sentence which is entirely inappropriate for the offences which have been committed should generally not be allowed to go uncorrected. 34 In the present case I am satisfied that the sentences which were imposed and, it must follow, the overall sentences were entirely outside the appropriate range and this Court must intervene. (see Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321 at paras 61 and 62). However, this Court should be mindful of the fact that the respondent is relatively young and increasing his sentence will impose significant burdens upon him. He was entitled to expect that he may be released on parole on 30 November this year and a further term of imprisonment will be a significant blow to him. He has made progress towards rehabilitation since being incarcerated and if possible that progress should be encouraged. 35 However, in my opinion both the robbery in company and the assault with intent to rob were serious offences. The assault with intent to rob with wounding was effected by physical blows and the use of a glass bottle which had a propensity to occasion very serious injury to the victim. Both victims were waiting at a railway station in the early hours of the morning. They were entitled to a safe passage. Instead they were set upon by two youths and brutally assaulted. Although the assaults occurred as part of the one sequence of offending, there were two victims and an identifiable distinct sentence is required for each offence. 36 The respondent will need a period of supervision upon his release if he is ever to take responsibility for his actions and become a mature member of the community. Paying appropriate regard to the respondent's youth, difficulties in his upbringing and the fact that he was intoxicated at the time, but mindful of the fact that he was on conditional liberty and had a previous conviction for an offence of violence and his plea of guilty, in my opinion, the appropriate sentence in relation to the robbery in company was a term of imprisonment of 5 years with a non-parole period of 3½ years. 37 In relation to the offence of assault with intent to rob with wounding I am satisfied that, but for the respondent's plea of guilty, this was a mid range offence to which the standard non-parole period would have been appropriate. However, in all the circumstances, including the guilty plea the appropriate sentence would have been one of 7 years with a non-parole period of 5 years. 38 In my opinion the sentences should have been partially concurrent. Although the offences were committed at approximately the same time there were two separate victims both of whom were seriously assaulted and put in fear. The overall term should have been 9 years with a non-parole period of 6 years. 39 Because this is a Crown appeal the sentences must be ameliorated. I propose sentences in respect of each offence which are substantially less than would otherwise be appropriate. Once sentenced the respondent expected that he would be released to parole on 30 November this year. As I have already said the imposition of further terms of imprisonment will be a heavy blow. Terms greater than I propose would be likely to crush the respondent and make his continuing rehabilitation difficult. I propose a fixed term in relation to count 1 and will provide for the sentence for count 2 to commence during the sentence for count 1. An extended period of parole is appropriate to assist the respondent in establishing himself as a mature and responsible member of the community. 40 In relation to the matter in the s 166 certificate, although the sentences were light, it is not necessary for this Court to intervene.

1. Crown appeal allowed. 2. Sentences in relation to counts 1 and 2 quashed. 3. In relation to count 1 the respondent is sentenced to a fixed term of 18 months to date from 31 May 2006. 4. In relation to count 2 the respondent is sentenced to a non-parole period of 2 years commencing on 31 May 2007 and expiring on 30 May 2009 with a further term of 2 years expiring on 30 May 2011. 5. Otherwise the appeal is dismissed. 42 HIDDEN J: I agree with McClellan CJ at CL. 43 ROTHMAN J: I agree with McClellan CJ at CL. **********

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