Regina v CAGE

Court of Criminal Appeal (NSW)|2006-09-11|Before: Johnson J, Latham J

JUDGMENT OF: Hunt AJA at 1; Johnson J at 2; Latham J at 3

DECISION: 1. Appeal allowed; 2. The sentences imposed by Nield DCJ on 17 May 2006 are quashed; 3. On Count 1 on the indictment, taking into account the offence on the Form One, a non parole period of one year is imposed to date from 15 August 2005, expiring 14 August 2006, with a balance of term of one year, expiring 14 August 2007; 4. On Count 2 on the indictment, taking into account the offence on the Form One, a non parole period of 18 months is imposed to date from 15 February 2006, expiring 14 August 2007, with a balance of term of 12 months, expiring 14 August 2008; 5. On Count 3 on the indictment, a fixed term of 7 months imprisonment is imposed to date from 15 June 2006, expiring 14 January 2007. The respondent is eligible for release at the expiration of the non parole period in respect of Count 2.

CATCHWORDS: Sentence - Crown Appeal - Failure to assess objective gravity of offences - Undue emphasis on theoretical availability of summary disposition

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

R v Rushby [1977] 1 NSWLR 594 R v Gordon (1994) 71 A Crim R 459 Markarian v The Queen [2005] HCA 25 R v Ranse NSWCCA (unreported) 8 August 1994 CASES CITED: R v Gent [2005] NSWCCA 370 R v Crombie [1999] NSWCCA 297 R v El Masri [2005] NSWCCA 167 Wise v R [2006] NSWCCA 264 R v Wall [2002] NSWCCA 42

PARTIES: Regina - Applicant Dean Cage - Respondent

COUNSEL: P Barrett - Crown B Rigg - Respondent

SOLICITORS: S Kavanagh - Crown S O'Connor - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/1599

HUNT AJA JOHNSON J LATHAM J

22 SEPTEMBER 2006 REGINA v DEAN CAGE Judgment 1 HUNT AJA : I agree with the orders proposed by Latham J and with the reasons she has given. 2 JOHNSON J : I agree with Latham J. 3 LATHAM J : On 6 July 2006, the Director of Public Prosecutions lodged an appeal against sentences imposed by his Honour Judge Nield at Gosford District Court on 17 May 2006, on the ground that the sentence is manifestly inadequate. 4 The respondent pleaded guilty to three offences on indictment, namely one of Demand Money with Menaces carrying a maximum penalty of 10 years imprisonment, one of Demand Money with Menaces in Company carrying a maximum penalty of 14 years imprisonment and one of Common Assault carrying a maximum penalty of two years imprisonment. An offence of common assault on a Form One was taken into account in relation to the sentence imposed on the first count and an offence of malicious damage on a separate Form One was taken into account in relation to the sentence imposed on the second count. 5 The respondent received a non parole period of nine months, with a balance of term of three months in relation to Count 1, a non parole period of six months with a balance of term of nine months in relation to Count 2 and a non parole period of five months with a balance of term of two months in relation to Count 3. The sentence in respect of Count 2 was cumulative upon the sentence in respect of Count 1 to the extent of nine months, whilst the sentence in respect of Count 3 was cumulative upon the sentence imposed in respect of Count 2 to the extent of one month, resulting in an aggregate sentence of 2 years with an aggregate non parole period of 15 months. 6 It appears that the respondent was committed for trial in respect of two counts of Aggravated Assault with Intent to Rob (the circumstance of aggravation being the use of corporal violence under s 95 of the Crimes Act 1900), being offences that were strictly triable on indictment, that is, without the election of the prosecuting authority or the offender. The charges upon which the respondent was ultimately sentenced were initially preferred as "backup charges" and were capable of summary disposition. As a result of plea negotiations between the respondent and the Crown's representatives prior to 5 December 2005, an indictment in the form set out above was presented on 5 December 2005 and attracted the pleas of guilty.

The Offences 7 In the evening of Saturday 16 July 2005, the respondent attended a party at Killarney Vale. The party was closed down by the police as a result of a brawl. The respondent was seen to be yelling and gesturing to police at that time. The crowd of about 100 people were dispersed and walked off into the surrounding streets. 8 At about 11 p.m. the respondent was walking in the vicinity of the Bi-Lo supermarket in Killarney Vale. At the same time, Matthew Nelson, who had also attended the party, was walking along Farrar Road, Killarney Vale with a group of friends. The respondent approached the group and engaged in conversation. 9 The respondent then grabbed Mr Nelson around the neck with his left hand and said "I'm packing, I've got a knife, I'm gonna stab you in the throat unless you give me your wallet." At this time the respondent had his right hand under his jacket and down his pants and was shaking his hand. Mr Nelson thought that the respondent was in possession of a knife and apprehended that he was going to be stabbed. 10 Mr Nelson managed to disengage from the respondent. The respondent again grabbed Mr Nelson and said "I've got a knife, I'm gonna stab you in the neck." Again Mr Nelson broke away. These events were the subject of Count 1. 11 The respondent then attended the front of the Bi-Lo supermarket a short distance away on Wyong Road at Killarney Vale. Bradley Kennedy and Andrew Jaques were at the store having driven to that location in a vehicle belonging to a friend. They had parked the vehicle in the store car park. The respondent approached Mr Kennedy and Mr Jaques in the company of about nine males. The respondent said to Mr Kennedy "give me your fucking wallet". This was the subject of Count 2 on the indictment. 12 Mr Kennedy told the respondent he did not have a wallet, whereupon the respondent punched Mr Kennedy to the left side of his face and then grabbed him in a headlock. This constituted the Common Assault, the subject of Count 3 on the indictment. Mr Kennedy managed to escape and ran from the location but was chased by the respondent and a group of males. At some point, the respondent and his associates left off the chase and went back to the car in the store car park. The respondent and others began to damage the vehicle by kicking it and by pushing shopping trolleys into it. This was the subject of the Malicious Damage charge on the Form One. 13 The respondent left that location. A short time later the respondent was seen in McArthur Street, Killarney Vale, by Mr Nelson, his mother and his brother (Mr Clark). Mr. Clark and the respondent became involved in a scuffle. Mrs Nelson approached the two men and began to abuse the respondent. The respondent spat in Mrs Nelson's face and threatened to stab her with a knife which he claimed to have in his pants. This was the Common Assault on the Form One, referable to Count 1 on the indictment. 14 The police arrived and arrested the respondent. He was searched but no knife was found. The cost of repairs to the motor vehicle was approximately $3500. Included in that damage was a smashed driver's window, detached side mirrors and large dents in the rear driver's side door and driver's door.

The Objective Gravity of the Offences 15 His Honour related the circumstances surrounding the commission of the offences at paragraphs 10 to 14 of the Remarks on Sentence. However, at no point did his Honour assess the objective gravity of the offences. 16 His Honour commenced the remarks on sentence with a summary of the respondent's subjective case. At paragraph 7, his Honour summarised the respondent's criminal history and at paragraph 8, it was noted that the offences were committed in breach of a two and half-year bond imposed on 8 April 2004 in relation to an offence of Assault Occasioning Actual Bodily Harm. After relating the facts surrounding the commission of the offences, his Honour dealt with the timing of the respondent's pleas of guilty, the remorse inherent in the pleas, and the respondent's prospects of rehabilitation, before passing to the presence of aggravating and mitigating factors pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999. Personal and general deterrence were briefly considered. His Honour then referred to the "concurrent jurisdiction of a Local Court" and the presence of the Form One offences. Immediately before passing sentence, his Honour said that he had taken "into account the objective features of the offences, the subjective features of the offender and the aggravating and mitigating and other factors referred to …". 17 A bare recitation of the facts constituting the offences and a reference to the "objective features of the offences" does not satisfy the requirements of sentencing. The correct approach to imposing a sentence for an offence has been the subject of repeated pronouncements of this Court since the decision in R v Rushby [1977] 1 NSWLR 594, as the following excerpt from the Court's judgment in R v Gordon (1994) 71 A Crim R 459 at 468 demonstrates :- The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve - the protection of society, personal and public deterrence, retribution and reform - even though those purposes overlap and sometimes are in conflict: Veen (No 2) (1988) 164 CLR 465 at 476; 33 A Crim R 230 at 237-238. It is important always to have regard first of all to the gravity of the crime viewed objectively for, without such an assessment, the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place : Dodd (1991) 57 A Crim R 349 at 354. Except in well-defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular offender (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. (Italics not in original) 18 In the instant case, there was no assessment undertaken of the objective gravity of the offences, insofar as no attempt was made to determine where on the scale of criminality these examples of the offences lay, referable to the maximum penalty prescribed by the legislature in each case. Accordingly, the respondent's criminal history, subjective circumstances and prospects of rehabilitation could not be meaningfully measured against the respondent's objective criminality. I do not mean to suggest by these remarks that it is necessary to undertake a mathematical or prescriptive approach to sentencing, or that one should engage in a two-tier approach : see Markarian v The Queen [2005] HCA 25. However, his Honour's remarks lacked the transparency that would allow the respondent, this Court and the general community to understand how it was that his Honour arrived at the final result. 19 These were serious offences, aggravated by their commission slightly more than one year into a bond imposed in respect of an offence of violence. In each case, the victims were assaulted whilst going about their lawful business in a public street late at night. The respondent's threatened use of a knife, the infliction of actual violence and, in one case, the intimidation of the victim by the combined force of nine men, all served to mark these offences as a significantly serious course of criminal conduct. Offences of this nature undermine a community's sense of safety and public order, independently of their effects upon individual victims ; R v Ranse NSWCCA (unreported) 8 August 1994. The objective gravity of Counts 1 and 2 lay, in my view, towards the mid range for offences of that type.

The Respondent's Subjective Case 20 The respondent was 21 years and nine months of age when he committed the subject offences. A report under the hand of a psychologist, Barbara Aldrich, referred to the respondent's disrupted childhood since the departure of his natural father when the respondent was about two years of age. Over the course of the following years, the respondent's mother exposed the respondent, as a child and later as a young adult, to a succession of father figures, some of whom were violent and abusive. However, the respondent's mother's partner since 1998 was described by the respondent as a "fine man who is hard-working, loving and supportive". 21 The respondent commenced using alcohol, cannabis and amphetamines at the age of 13 years. He had never sought rehabilitation for his drug addiction and reported that he was under the influence of alcohol and drugs at the time of the subject offences. 22 The respondent's criminal history commenced at the end of 2000 with a 15 month suspended control order in relation to an offence of Break Enter and Steal. In February the following year, the respondent was charged with an offence of Dangerous Driving Occasioning Death and received a control order of two years in April 2001. That offence arose out of the death of a 15-year-old female, with whom the respondent had been having a relationship for approximately 18 months, as a result of the respondent driving a stolen motor vehicle at an excessive speed whilst under the influence of alcohol. The respondent was prescribed an antidepressant shortly after these events but declined to take it. 23 The respondent's juvenile criminal history continued with convictions for Escape Police Custody, Assault and Malicious Damage. The respondent was apparently released from custody in August 2003, having completed Year 10 of his secondary schooling. In October 2003 the respondent was charged with the offence of Assault Occasioning Actual Bodily Harm, for which he initially received a sentence of imprisonment of four months in March 2004. However, on appeal to the Newcastle District Court that sentence was quashed and the respondent was placed on a bond to be of good behaviour for two and a half years to date from 8 April 2004. It was a condition of that bond that the respondent accept the supervision of the Probation and Parole Service and participate in service programs. 24 Ms Aldrich's report states that the respondent "has very little recall of the events of that night because he was so affected by … substances", including a potent form of methylamphetamine, cannabis, alcohol, ecstasy and steroids. Ms Aldrich stated that "these offences are out of character for him and he can only imagine that the drugs and alcohol created the mindset in which he was capable of doing this." It cannot be suggested that offences of violence were out of character for the respondent, given his prior convictions, nor does the respondent's intoxication provide any excuse or justification for the commission of the offences. These aspects of the report were correctly rejected by his Honour. 25 Ms Aldrich's diagnosis of post-traumatic stress disorder and chronic long-term subclinical depression is not surprising in the light of the respondent's history, his rejection of treatment for that condition and his substance abuse. 26 His Honour found that the respondent's prospects of rehabilitation were doubtful and that the pleas of guilty demonstrated "some remorse on his part for his committing of the subject offences". His Honour noted that there was no expression of remorse to Ms Aldrich and no other evidence of remorse.

27 In short, whilst the respondent's upbringing was far from ideal, his subjective circumstances were not so compelling as to justify significant mitigation of the penalty that was otherwise appropriate to the objective gravity of the offences. The respondent's history demonstrated that he was resistant to treatment and long-term change. The Theoretical Availability of Summary Disposition 28 In R v Gent [2005] NSWCCA 370, Johnson J. reviewed the principles relevant to the sentencing of an offender in the District Court where summary disposition of the charges was available. Following references to R v Crombie [1999] NSWCCA 297 at paragraphs 15 to 16 and R v El Masri [2005] NSWCCA 167 at paragraph 29, Johnson J. concluded (at par 84) that "the principles in Crombie and El Masri have particular application with respect to …. offences in relation to which the accused person is committed for trial but where the person is acquitted of, or the Crown does not proceed with, the more serious charge." In those circumstances, "the offender may be in a position to contend, with some force, that he or she stands for sentence in the District Court with respect to an offence which otherwise would have been disposed of summarily in the Local Court." 29 The respondent's representative in the court below did not make such a submission at all, let alone with some force. However, his Honour did observe that "although I understand why the Director of Public Prosecutions elected to have the offences dealt with in this court rather than in the Local Court, it seems to me that the offender is entitled to a small discount in sentences to recognise the concurrent jurisdiction of the Local Court." (at par 22) The respondent's representative in this Court placed considerable reliance upon the availability of summary disposition in defence of the sentencing judge's remarks and the sentences ultimately imposed. 30 It is appropriate to be reminded of the statement of principle in El Masri :- It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford (1994) 72 A Crim R 160 at 195; R v Griggs (1999) 109 A Crim R 484 at 485-6; Crombie , at paragraph 16; Doan , at 123ff (paragraph 35ff); R v LPY (2002) 135 A Crim R 237 at 240. But it is not a universal rule ( Sandford , at 195) nor a factor which operates universally to reduce sentence ( Doan , at 124)... The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma [2003] NSWCCA 382 at paragraph 13. (Italics not in original) 31 This aspect of Johnson J's judgment in El Masri was referred to by Rothman J in Wise v R [2006] NSWCCA 264 at pars 30 to 31. The circumstances of the matter with which Rothman J was there dealing are equally apposite to the circumstances of the present matter. The observations of Rothman J (with which Spigelman CJ and Howie J agreed) bear repeating, with relevant modifications, namely that "while it was permissible for [the sentencing judge to take] into account the circumstance that the matter could have been dealt with by the Local Court, the criminal record of the [respondent] and the fact that the [bond that had been breached by the respondent] was imposed by the District Court rendered it wholly inappropriate for the Local Court to have dealt with the matter. In those circumstances the theoretical possibility of the matter being dealt with by the Local Court was not a significant issue." 32 It is relevant to bear in mind that the respondent was originally charged with two counts of Aggravated Assault with Intent to Rob, each carrying a maximum penalty of 20 years imprisonment, and that the respondent received the benefit of plea negotiations that reduced his exposure to a full-time custodial sentence in the order of at least four years for each of Counts 1 and 2. It is not to the point that the offences to which the respondent ultimately pleaded guilty were theoretically capable of summary disposition. They were the result of very generous concessions made by the Director of Public Prosecutions for the purposes of securing the respondent's pleas of guilty, once the matter had arrived in the District Court. Even a "small discount" to the sentences that were otherwise appropriate appears to me to be unduly favourable to the respondent.

Further Errors 33 Before passing to a consideration of the gravamen of the Crown's complaint, two further aspects of his Honour's sentencing exercise deserve attention.

34 Somewhat curiously, his Honour found the presence of a mitigating factor, namely that the respondent had shown remorse for the offence by making reparation for injury, loss or damage (s 21A(3)(i) Crimes (Sentencing Procedure) Act) of which there was absolutely no evidence. His Honour may have been referring to the fact that an order for compensation in favour of the owner of the damaged motor vehicle had been foreshadowed in discussions between the Bench and the Crown's representative. It was also frankly acknowledged by his Honour that it was unlikely that the respondent had the means to pay such an order. In any event, that mitigating factor is directed to reparation already made by the offender as at the time of sentence. 35 His Honour expressed an intention at par 15 of the remarks on sentence to discount the sentences to be imposed by 15% on account of the respondent's pleas of guilty. No issue is taken with the quantification of that discount. However, when his Honour came to pass sentence, his Honour in fact discounted the sentence imposed in respect of Count 1 by 20%, the sentence imposed in respect of Count 2 by almost 17% and the sentence imposed in respect of Count 3 by 22%. Manifest Inadequacy 36 I have reached the conclusion that his Honour failed to assess the objective criminality of the individual offences, for the reasons outlined above. In addition, his Honour appears to have placed undue weight upon the theoretical availability of summary disposition, incorrectly found a mitigating factor that did not exist, exceeded the size of the discount he had nominated as appropriate to the timing of the pleas of guilty and allowed the respondent's subjective circumstances to inappropriately outweigh that objective criminality. The combination of these factors resulted in a manifestly lenient outcome.

37 I would have regarded a head sentence in the order of 3 years for each of Counts 1 and 2 as entirely appropriate to the objective criminality of those offences, unaffected by the requirement to impose some slight additional penalty for the Form One offences. Offences of this nature are prevalent. The sentences must reflect considerable emphasis upon the principle of general deterrence. It follows that I regard a sentence of 12 months on Count 1 and a sentence of 15 months on Count 2 as manifestly inadequate. I can discern no latent error in the sentence imposed in respect of Count 3. 38 I also regard the aggregate head sentence and aggregate non parole period as manifestly inadequate for the purposes of reflecting the totality of the respondent's criminality. Whilst his Honour imposed a measure of accumulation, it was not sufficient to produce an overall sentence proportionate to a sustained course of offending. At first instance, an appropriate aggregate sentence would have been in the order of 5 years. It is not disputed that a finding of special circumstances was in order. 39 The principles applicable to Crown appeals are well settled and need not be repeated here : see R v Wall [2002] NSWCCA 42. I recognise the restraint upon the intervention by this Court inherent in those principles, but after making due allowance for that restraint, it is necessary in my view to set aside the sentences imposed at first instance and proceed to re-sentence the respondent. The sentences to be imposed will be less than that which should have been imposed at first instance and at the lower end of the available range : R v Wall at par 70.

40 The Court received an affidavit affirmed by the respondent on 7 September 2006 wherein the respondent refers to his movement between gaols since coming into custody on 16 July 2005. That movement has made it difficult for the respondent to work and complete courses. However, the respondent was able to complete a relapse prevention course whilst at Parramatta and is presently undertaking a health and fitness course. The respondent also refers to his intention not to use drugs when released from gaol, to go into rehabilitation, and his hope of taking up employment with his step grandfather upon his release. This is the respondent's first significant sentence in adult custody and I would find special circumstances for that reason. In addition, it is clear that the respondent needs supervision directed at preventing a further relapse into drug addiction and re-offending. I would impose an aggregate sentence of 3 years and an aggregate non parole period of 2 years. 41 Accordingly, I propose the following orders:- 1. Appeal allowed.

The sentences imposed by Nield DCJ on 17 May 2006 are quashed. 3. On Count 1 on the indictment, taking into account the offence on the Form One, a non parole period of one year is imposed to date from 15 August 2005, expiring 14 August 2006, with a balance of term of one year, expiring 14 August 2007.

On Count 2 on the indictment, taking into account the offence on the Form One, a non parole period of 18 months is imposed to date from 15 February 2006, expiring 14 August 2007, with a balance of term of 12 months, expiring 14 August 2008. 5. On Count 3 on the indictment, a fixed term of 7 months imprisonment is imposed to date from 15 June 2006, expiring 14 January 2007. The respondent is eligible for release at the expiration of the non parole period in respect of Count 2. **********

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Judgment (22 paragraphs)

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Cases Cited (8)