Ground 1. His Honour erred in failing to express the sentences in accordance with section 44 of the Crimes (Sentencing Procedure) Act 1999 in that when sentencing for counts 1 and 3 on the indictment his Honour failed to set a balance of term. His Honour also failed to give reasons for setting a fixed term in relation to count 4 as required by section 45(2).
21 That his Honour's impositions on counts 1 and 3 were expressed as non-parole periods but effectively amounted to fixed terms has been acknowledged above. In respect of neither of these impositions nor in respect of the expressed fixed term on count 4 did his Honour record any reasons for not setting a non-parole period and balance term. Such failures do not invalidate the sentences: Crimes (Sentencing Procedure) Act 1999 s 44(3) and s 45(4).
22 Whilst in the event of inconsistency it is the endorsement on the back of the indictment which is the record of the court prevailing over transcribed remarks, I am persuaded that the applicant's argument that the extent of concurrence and cumulation which his Honour intended has been infected by his error in expressing the sentence on count 3 and its expiry date, is made out. I comment that, even on the photocopies of the indictment in the papers, it is plain that the expiry date has been overwritten to substitute "07" for "08".
23 Subject to the sentence on count 4 being wholly concurrent with the first 12 months of the sentence on count 3 (irrespective of whether it is viewed as 2 years or 3 years 6 months), there is a pattern of partial cumulation and partial concurrency perceptible in the spans of the sentences except that the second year of service on count 3 has no concurrency with any other sentence and, in terms of his Honour's oral expression of a sentence of 3 years 6 months, concurrency is in the final 18 months, that period being concurrent within the first 18 months of the sentence on count 1 and the final 6 months being also concurrent with the first 6 months of the sentence on count 2.
24 As the operative sentence on count 3 is 2 years imprisonment (as earlier in his remarks, his Honour said he intended) there is no final 18 months of a 3 year 6 month sentence on count 3 and the applicant receives no benefit of partial concurrency during such period.
25 I am conscious that the consequence of his Honour's erroneous statement of sentence on count 3 can be viewed in different ways but I conclude that the error has led to an extension of the minimum term of custody intended by his Honour. Again, the extent of the extension may be differently viewed, for example as 12 months during which there was no other sentence concurrent or, 18 months being the addition to the actual term of 2 years.
26 The error attracts the power of this Court to intervene and, stressing that I do not seek to minimize the serious criminality of the applicant's offences, I consider that a lesser effective sentence overall is warranted. I would adjust commencement and expiry dates to remove any perception that the applicant is required to serve minimum custody of 18 months longer than appropriate structure would achieve.
27 Ground 2: His Honour failed to have sufficient regard to the delay which occurred between the entering of the plea of guilty and the passing of sentence. This delay was not due to the fault of the applicant.
28 As the ground implies, his Honour did take delay into account. He said:
"Following authority, I am able to take in a (sic - into) consideration in the offender's favour that he has been awaiting sentence for these matters, through no fault of his own, since his day of arraignment on 17 October 2005. Whilst there could be no doubt in the offender's mind that he would be sent to prison for these offences, the delay over two years would have produced needless uncertainty in his mind, as to the actual length of his sentence."
29 As the Crown has pointed out, the finding is generous to the applicant in that at least some part of the delay could be referenced to the abandoned application to reverse his pleas of guilty.
30 The applicant argued that, although his Honour recognized the delay, there was "no indication that any mitigation of sentence was applied in regard to that fact". His Honour's task was to assess appropriate sentences and in so doing to take into account relevant matters. Delay was relevant in the sense stated and his remarks included specifying that he took it into account. He was not obliged to quantify individual items of relevance nor to calculate terms by processes of addition and subtraction reflecting the various elements which he had taken into account.
31 It is complained that his Honour did not consider the effective delay as a basis for finding special circumstances when setting the division of total term into non-parole period and balance term. In fact, his Honour did depart from the formulation in the statute in the applicant's favour, the minimum custody period against total term being approximately 69.5 percent as opposed to 75 percent. The issue would be whether his Honour erred in that division not what variety of factors may have been available to justify the decision to depart from the statutory formula.
32 I would reject ground 2.
33 Ground 3: His Honour gave insufficient weight to the fact that the applicant was suffering from severe depression at the time of the commission of these offences.
34 His Honour made explicit reference to the applicant's mental health issue which antedated the offence and to the diagnosis by Dr Nielssen of severe depressive illness. He quoted extensively from the principal report of the doctor. Clearly his Honour did not overlook this matter.
35 Submission is made that the applicant is less culpable than a person not affected by this illness. The evidence did not oblige his Honour to find that the applicant's judgment was impaired by the illness. Obviously the applicant was in a state of high emotion. To the extent that his depression may have contributed to his poor judgment, its significance is diminished by his voluntary reduction of his capacities by drinking a large quantity of whisky.
36 There was evidence of advance planning by the applicant who secreted himself in the wardrobe after equipping himself with a pistol, a rope and a bottle of whisky. His Honour specifically found that specific and general deterrence were particularly important in this case. No submission had been made to his Honour that the applicant was, by reason of depression or for any other reason, not a suitable vehicle for the manifestation of general deterrence.
37 The approach undertaken by his Honour was amply endorsed by authority particularly when offences have been committed in a domestic context: R v Hamid [2006] 164 A Crim R 179 and emphatically this is the case when such offences occur in breach of extant restraining orders such as an ADVO: Hiron v R [2007] NSWCCA 336.
38 Ground 4: His Honour gave insufficient weight to the remorse and contrition shown by the applicant.
39 His Honour stated that he accepted that the applicant was remorseful for what he had done. That statement followed recitation of an extract of evidence about regret and expressions of sorrow by the applicant in the proceedings presided over by the late Judge Donovan. Having recited that evidence and made that statement Sorby DCJ moved on to record an intended "discount" of sentence for the utilitarian value of the plea of guilty. Whilst the transcript places both the finding of remorse and the statement of intention concerning discount for utilitarian value in the same paragraph, it is plain that the former statement was referrable to the passage of evidence which his Honour had just cited.
40 The applicant's submissions complain that the applicant was given credit for the utilitarian value but his Honour did not indicate credit being given for remorse and contrition. Sentencing courts have been encouraged, but not obliged, to quantify the so-called utilitarian discount and obviously that is what his Honour was doing when he recorded his assessment of 20 percent in that regard. Insofar as the applicant was found to be contrite that was one of the factors about which his Honour had made a finding and this indicated its inclusion in the accumulation of matters from which assessment otherwise than in respect of the utilitarian discount derived.
41 Ground 5: His Honour gave insufficient weight to the apparent improvement in the psychiatric condition of the applicant since the increase of his medication whilst in prison.
42 It is plain that his Honour gave appropriate consideration to the applicant's treatment and progress. He referred to Dr Nielssen's opinion that the applicant was in need of long term rehabilitation and this formed a basis for variation of the ratio of non-parole period to total term in the applicant's favour. Having made this finding he added a quotation from a further report from Dr Nielssen referring to the post imprisonment contact between the applicant and his wife and the applicant's acceptance that he should submit to her wishes in regard to any future contact.
43 Grounds 3, 4 and 5 all asserted error in giving insufficient weight to identified factors to which his Honour clearly and expressly had paid attention. No basis is shown for concluding that his Honour did not take into account the matters which he mentioned and there is no basis for conclusion that his discretion has miscarried in any of these regards so as to attract intervention by this Court.
44 Ground 6: The sentences imposed, structured as they are, result in a manifestly excessive sentence.
45 The effective sentence can be categorized as severe, but the conduct of the applicant constituted criminality of a very high order. Reference was made to the standard non-parole period of 3 years specified in relation to count 1. Of course in the light of the pleas of guilty that prescription was indicative but it is instructive to observe that in assessing what was appropriate for the individual counts, his Honour obviously considered the conduct manifest in count 2 involving detention and the causing of actual harm as of greater gravity than the offence in count 3 which, certainly if the attempt had succeeded, carried a standard non-parole period of 7 years. As earlier recounted, the attempt failed because of the victim's vigorous physical resistance despite the applicant's efforts to subdue her by binding her with the rope.
46 This Court was invited to consider that the offences occurred in the context of (broken down) domestic relationship and the applicant's depression. Depression has been dealt with in relation to ground 3. That a violent and pre planned attack occurred in what might be classified as a domestic setting is not a matter of mitigation. This Court has repeatedly stressed that it is a circumstance of significant seriousness: R v Edigarov [2001] 125 A Crim R 551; R v Dunn [2004] 144 A Crim R 180; R v Burton [2008] NSWCCA 128.
47 The applicant detained and abused his wife verbally, physically and finally sexually. He did so in defiance of restraints placed upon him by conditions of the ADVO and by bail. The production and use of a pistol must have magnified the fear which his threats instilled in his wife. The level of fear would surely elevate as he drank a copious amount of whisky. It is claimed that the attempt by the applicant to commit suicide was real. His Honour made no finding to that effect and the facts simply show that after considerable consumption of whisky, the applicant was found sitting in a car with the pistol and shortly thereafter persuaded by police to surrender. Those facts did not compel a finding that the applicant's behaviour extended beyond a threat of self harm which he did not carry out. That he had previously made some attempt does not in the circumstances attract the application of any particular mitigation.
48 I would not uphold ground 6 except to the extent above discussed in relation to ground 1.
49 The shortcomings which have been identified in dealing with ground 1 are in essence both technical and procedural. Failure to comply with the procedures does not of itself give rise to a lesser sentence: Itaoui v R [2005] 158 A Crim R 233; R v Brown [2004] NSWCCA 249.
50 Nevertheless, in this instance I have concluded that the overall justice of the situation should be achieved by a variation of 18 months in the term of custody before the applicant is eligible for parole. This can be done in a practical way by advancing the commencing dates of the sentences on counts 1 and 2 by that period. Although the individual sentences are unaltered in terms of length, it should avoid recurrence of ambiguity if all sentences are quashed and re-imposed. There is no need to do so in respect of the offence referred to in the District Court under the s 166 certificate, the sentence for which is expired.
51 Also expired are the sentences on counts 3 and 4 but they are reimposed for clarity and to maintain specification of the continuity of custody. Fixed terms on counts 1, 3 and 4 are ordered as they will expire during or before the commencement of the non-parole period specified in respect of count 2. The finding of special circumstances by Sorby DCJ should be adopted and applied.
52 I propose the following orders: