REGINA v CRAMP

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/1006 FILE NUMBER(S) : LOWER COURT Knight DCJ JUDICIAL OFFICER :

• 10 - IN THE COURT OF CRIMINAL APPEAL 60122/04

SPIGELMAN CJ HIDDEN J BUDDIN J

Monday 26 July 2004 REGINA v Gordon Reginald CRAMP Judgment 1 SPIGELMAN CJ: The Applicant seeks leave to appeal against the sentence imposed upon him by his Honour Judge Knight in the Penrith District Court on 3 October 2003. The Applicant pleaded guilty to a charge of maliciously wounding Phillip Buckley with intent to do grievous bodily harm on 14 June 2002 contrary to s33 of the Crimes Act 1900. The maximum penalty for the offence is 25 years imprisonment. 2 His Honour imposed a sentence of imprisonment consisting of a non-parole period of five years and seven months and a total term of eight years, both to date from 21 June 2002. The sentence was backdated to the date that the Applicant went into custody. 3 There are five grounds of appeal as follows:

2 His Honour in making a finding of special circumstances failed to properly reflect that finding in the non-parole period imposed;

3 His Honour failed to comply with s44 of the Crimes (Sentencing Procedure) Act 1999 in that he failed to first set the full term of the sentence and, secondly, to set a non-parole period;

4 His Honour erred in taking into consideration in the sentencing exercise an allegation that applications for apprehended violence orders had been taken out against the Applicant but had not been proceeded with;

5 His Honour erred in taking into account the motivation pursuant to s21A(2) of the Crimes (Sentencing Procedure) Act 1999, a factor that was an element of the offence for which the Applicant was sentenced. 4 Save in one respect identified in the fourth ground of appeal, the findings of the trial judge are not in issue. 5 The victim, Philip Buckley, was known to the Applicant in circumstances which I will outline. On 14 June 2002 the Applicant was working as a labourer on a building site next to the place at which the victim was working. At about 10.00am that morning the Applicant was driving a car and saw the victim walking past. He caused the vehicle to skid to a halt, did a U-turn and came alongside the victim. He reached into the glove box, took out a knife and got out of the car. The victim noticed that the Applicant was armed with a knife and ran down the footpath. The Applicant chased him. An eyewitness heard the Applicant say "I'm going to stab you". 6 The Applicant chased the victim into other premises where the victim tried to jump over the fence. As he was climbing the fence, the Applicant stabbed him in the back to the right side of his spine and said: "I'm going to kill you, you dog". The Applicant then reinserted the knife into the victim before pulling it from his back. 7 The victim fell to the ground. The Applicant left carrying the knife, got back into his vehicle and drove away. 8 The victim was taken to Nepean Hospital where a thoracotomy was performed on him. The victim was found to have a lacerated right lung and a perforated right diaphragm. He was haemorrhaging. He had a fractured mid-thoracic right rib. His recovery was complicated by infarction and necrosis of the right lower lobe, right empyema, bilateral collapse of the lungs and bilateral plural effusion. Mr Buckley remained in the Intensive Care Unit of the hospital until he was discharged on 16 July 2002. 9 His Honour accepted a medical report and a Victim Impact Statement which outlined the continuing effects of the attack on the victim. The victim suffers from severe limitations on his breathing due to lung damage. At the time of the trial he continued to have pain from the stab wounds. He suffered significant scarring to his throat and torso which is unsightly and embarrasses him before other people. He has trouble sleeping and cannot wear certain types of clothing. He also has psychological problems, including a fear of being in public on his own and a fear of walking in public. 10 His Honour accepted the medical evidence that the victim's condition was "both serious and permanent and … Mr Buckley will need counselling and psychological support for years to come". 11 His Honour concluded: "… the injuries to him were severe and … the injuries, although they have been properly treated, are continuing to cause significant problems for him and in my assessment will do so at least to some extent, for the rest of his life." 12 His Honour noted the significance of the offence and the maximum penalty of 25 years. 13 His Honour then said: "I turn to consider the factors in relation to you and in relation to the defence set forth in s21A of the Crimes (Sentencing Procedure) Act 1999." 14 After this reference his Honour made the following observations with respect to prior convictions, which arise on one of the grounds of appeal. I set them out in full: "You come to the Court with a criminal record dating back to when you were fifteen years of age. There are certain aspects of that record which need to be remarked upon. The first one is this - the record does not disclose any previous offences of violence to the person. It has been put to me, and I accept, that there were various applications for apprehended violence orders made against you between July 2000 and June 2002 but it would appear that none of those applications went ahead; and whilst I consider that it is proper for them to be considered in accordance with R v Weininger [2003] HCA 14 - the fact is that you have no criminal offences prior to this offence, involving violence to the person and that is a factor which does need, in my view, to be taken into account. The second aspect of your criminal record which is in my view, important, is that you have served a period of full-time imprisonment which was imposed on you on 26 November 1997. Being a term of four months' imprisonment for an offence of driving whilst disqualified. You have also served terms of imprisonment by way of periodic detention and you have had the benefit of community service orders. The offences that have been brought before the Court have involved driving offences, dishonesty offences and drug offences." 15 His Honour went on to consider a wide range of subjective features of the Applicant. His Honour then turned explicitly to the provisions of the Act and said: "I turn to consider the specific matters in relation to you having regard to the provisions of s21A of the Crimes (Sentencing Procedure) Act ." 16 With respect to the list of mitigating factors his Honour identified as relevant s21A(3)(e) which states: "The offender does not have any record (or any significant record) of previous convictions."

In this regard his Honour's finding was: "(e) you do have a criminal record but no previous convictions for offences of violence, and I have already made note of that." 17 As I have noted his Honour made a number of findings about the subjective features of the Applicant. It is unnecessary to set them out again as they are uncontested. They should be treated as incorporated herein. The additional evidence in this Court does not in any significant manner impinge on his Honour's findings. 18 His Honour accepted the psychologist's evidence that there was a "low likelihood of recidivism" and concluded that there was "every likelihood" that the Applicant would not reoffend. His Honour also found that the Applicant had "good prospects of rehabilitation" and referred to the remorse that had been expressed by the Applicant and also the course of anger management that he had taken whilst in custody. 19 In the evidence filed in this appeal by the Crown, should the Court come to resentence the Applicant, there is a reference to a punishment during the course of the Applicant's incarceration for possession of a drug implement. However, that does not in my opinion affect his Honour's findings of fact that there was a low likelihood of recidivism and every likelihood the Applicant would not reoffend. Nor does it affect his Honour's finding the Applicant has good prospects of rehabilitation, although there is some cause for concern from the additional evidence filed on behalf of the Crown. I will proceed on the basis of the same strong findings in favour of the Applicant made by the sentencing judge. 20 One of his Honour's findings with respect to the aggravating factors in s21A concerned 21A(2)(b): "The offence involved the actual or threatened use of violence". His Honour found: "(b) - the offence involved actual violence. Moreover the actual violence occurred after there had been a threat of that violence and after Mr Buckley the victim attempted to escape from such threat." 21 His Honour reiterated, with respect to s21A(2)(g), that the "injury, emotional harm and damage caused by the offence was … substantial ... indeed … very substantial to Mr Buckley". 22 His Honour found that the offence was not part of a planned or organised criminal activity. With reference to s21A(3)(b) his Honour described the offence as an impulsive one. 23 The victim was a relative of the Applicant's estranged de facto. He had offered her emotional support during the break down of the relationship. His Honour found that: "… the offence was an impulsive reaction to your seeing a person whom you disliked for having interfered in your de facto relationship." 24 His Honour specifically rejected the evidence given by the Applicant that shortly prior to the incident Mr Buckley had threatened the Applicant and he also did not accept the Applicant's evidence that it was Mr Buckley who had originally introduced him to the amphetamines to which he had become addicted. 25 His Honour referred to the plea of guilty. He noted that on arraignment the Applicant originally pleaded not guilty but had entered a plea before the trial commenced. His Honour allowed a discount for the utilitarian value of the plea of 12 percent and, for the remorse aspects of the plea, increased the total discount to 20 percent. 26 With respect to the sentence his Honour said the following: "I am required by section 44 of the Crime (Sentencing Procedure) Act to sentence you by way of imposing a non-parole period first and then to impose a total term." 27 His Honour added: "… you are convicted and sentenced to a term of imprisonment which consists of a non-parole period of five years and seven months - and a total term of eight years, both to date from 21 June 2002. I recommend that you be released on parole on 20 January 2008. The balance of the total term of imprisonment exceeds one third of the non-parole period because there are special circumstances. Those special circumstances are - your strong prospects of rehabilitation having regard to your plea of guilty and your expressions of remorse and the need for extended supervision to both monitor your drug status and to attempt your general rehabilitation." 28 It is not necessary to deal with Ground of Appeal 1.

Ground of Appeal 2 29 Ms H Cox, who appeared for the Applicant, submitted that the sentence ultimately imposed of a total term of eight years with a non-parole period of five years and seven months, failed to adequately reflect his Honour's finding of special circumstances. 30 On the basis of the application of s44 in its form applicable to offences committed before 1 February 2003 - the subject of Ground 3 - a head sentence of eight years would, without adjustment for special circumstances, result in a non-parole period of six years. His Honour reduced that by only five months. 31 In my view the size of such an adjustment raises so many matters of a discretionary character that this Court should be very slow to intervene. The specific grounds upon which his Honour found that special circumstances existed, as quoted above, were the strong prospects of rehabilitation and the need for extended supervision to monitor the Applicant's drug status and to attempt general rehabilitation. The first factor is a matter that was taken into account by his Honour in determining the head sentence. There is a real prospect of double counting. His Honour increased the period of supervision on parole by about 20 percent. So far as I can see there is no proper basis for challenging that increase as inadequate. 32 Ms Cox drew the Court's attention to the recent judgment of this Court is R v Sutton [2004] NSWCCA 225 where Howie J referred to the reduction of the non-parole period by about three months as follows: "It rather makes a mockery of a finding of special circumstances in response to the need his Honour found for 'extended supervision and counselling'."

The Court extended the period of counselling by a further period of six months in that case. 33 In this case I do not find that what his Honour did was of the same character as identified by Howie J in Sutton. Specifically, I note that his Honour indicated that the finding of special circumstances included aspects which raise the question of double counting, whereas in Sutton there was a reference only to extended supervision and counselling. 34 What is required by way of extended supervision and counselling very much depends on the facts of each individual case and I do not find the facts of this case to be equivalent to those identified in Sutton. Perhaps more significantly, it must also always be taken into account that the non-parole period is a minimum period which the convicted person must, in fact, serve. In formulating the non-parole period questions of general deterrence and similar considerations arising from the gravity of the offence may determine that the minimum period should not fall below a stipulated amount, even despite the need for extended supervision on parole. 35 Recently in R v Fidow [2004] NSWCCA 172 esp at [17]-[24], I had occasion to make observations on the implementation of this Court's judgment with respect to special circumstances in R v Simpson (2001) 53 NSWLR 704. It appears that findings of special circumstances have become so common that the Parliament's intention that the statutory ratio should apply unless special circumstances exist is not being carried into effect. 36 I reiterated in Fidow at [19] the observations originally made in Simpson at [73]: "As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 37 Nothing appears in this regard to arise from the degree of variation of the statutory proportion which Knight DCJ decided to make. The finding of special circumstances made by his Honour did not require any greater divergence from the statutory proportion. The change that his Honour determined was well within the exercise of his Honour's discretion as was, in my opinion, the non-parole period which his Honour eventually determined. In this case this matter does not give rise to the kind of error that would justify this Court interfering with the exercise of the discretion on this ground.

Ground of Appeal 3 38 As quoted above, his Honour applied s44 by imposing a non-parole period first and then a total term. His Honour was applying s44 in the form in which it was applicable to offences committed on or after 1 February 2003. However, this offence was committed before that date. The reason his Honour did this is because he asked counsel appearing before him which section applied. Both the representative of the Crown and the Applicant's representative replied that the new section applied. This was wrong, as the Crown now concedes. 39 This error has happened on earlier occasions (see R v Hansen [2002] NSWCCA 321 and R v Mako [2004] NSWCCA 90). It is a technical error of little or no practical significance. In each of Hansen and Mako the Court intervened for the purpose of imposing a sentence in accordance with the correct Act, but not in order to vary the sentencing judge's effective determination of head sentence and non-parole period. 40 The Crown submits that this Court should intervene in this case only to that extent. It relies on s6(3) of the Criminal Appeal Act and also on s43 of the Crimes (Sentencing Procedure) Act 1999. 41 Section 6(3) of the Criminal Appeal Act requires the Court to form an opinion that some other sentence than that imposed should have been passed and, unless it forms that opinion, the appeal should be dismissed. Subject to the Applicant's success on any other ground of appeal, this would be an appropriate provision to apply in the circumstances. 42 Section 43 of the Crimes (Sentencing Procedure) Act 1999 is not, in my opinion, applicable. I am unaware of any occasion on which the Court of Criminal Appeal has invoked it in order to vary a sentence of a lower court. Pursuant to s43(1) the section applies to criminal proceedings "in which a court has … imposed a penalty that is contrary to law …". Section 43(2) states that "the court may reopen the proceedings …". The use of the definite article in "the court" in s43(2) is a reference back to "a court" which has "imposed a penalty that is contrary to law" in s43(1). Indeed s43(4) states that "nothing in this section affects any right of appeal". The section was not directed to empowering an appellate court to act. It empowers the original sentencing court to correct error. 43 It is necessary to correct the sentence imposed so it conforms with the structure required by s44 in the form in which it is applicable. 44 The Applicant submitted that by reason of this error the Court was entitled to set aside the sentence and proceed to determine the sentence which it believed should be imposed. The error that has been identified did not affect the exercise of discretion by the trial judge. The Court is able to, and should, resentence the Applicant. However, unless some other aspect of the sentence warrants the Court proceeding to sentence afresh, I would not do so. The error identified is a technical one and does not justify this Court proceeding as if his Honour's exercise of the sentencing discretion miscarried.

Ground of Appeal 4 45 I have set out above his Honour's reference to the fact that applications for apprehended violence orders had been taken out but had not been proceeded with. His Honour said that it was proper for them to be considered and referred to R v Weininger (2003) 212 CLR 629. The Applicant submits that there was no evidence of any applications for apprehended violence orders. 46 It was submitted that his Honour must have modified the leniency with which he ought to have treated the Applicant because of the finding that there were no prior offences involving violence to a person. Accordingly, his Honour's reference to having "considered" the allegations must have had an adverse impact upon the Applicant. 47 Dr Power SC, who appeared for the Crown, relied upon r 4 of the Criminal Appeal Rules. He submitted that not only was no objection taken in this regard during the course of submissions before the sentencing judge, counsel appearing for the Applicant had expressly acknowledged the facts upon which this reference was based. 48 In written submissions to Knight DCJ, the Crown had referred to the fact that there had been applications for apprehended violence orders which had not been pursued. He drew attention to a submission made for the Applicant that he was a person with no history of violent conduct. The Crown accepted that there were no convictions for violent conduct and that the offender should not be sentenced for past uncharged acts. During the course of oral submissions at trial the Crown made reference to a presentence report, which referred to the difficulties in the relationship between the Applicant and his de facto. In that context the Crown referred to the applications for apprehended violence orders were made but never pursued. 49 In the course of submissions on the part of the Applicant, counsel appearing for him before the sentencing judge said the following with respect to his own written submissions: "I had put it that this was a serious offence of violence by a person with no history of violent conduct. I have changed that to no criminal antecedents or offences of violence. But it is acknowledged that there is this history of what I understand to be AVO matters that did not ultimately go to hearing and so there was no finding made on those matters but it is acknowledged that there is some history of domestic dispute." 50 This confirmed, if confirmation were needed, what the Crown had earlier told his Honour, prior to making the observation about the apprehended violence orders: "This is being said with the consent of my friend". 51 There may well have been good forensic reason for the Applicant's counsel to proceed by way of concession, rather than to have the Crown seek to adduce evidence about the Applicant's conduct towards his de facto. Whatever the tactical reasons may have been, the concession on the part of counsel for the Applicant was sufficient to establish the evidentiary basis for his Honour's observations in the context of sentencing proceedings. 52 It was, in my opinion, relevant for the exercise of the sentencing discretion to take into account the fact that the Applicant may have had a history of violent conduct, albeit not such as led to criminal conviction. That history is relevant to the overall assessment of the subjective features of the Applicant and is also relevant for his prospects of rehabilitation. The weight which his Honour gave to this consideration was a matter for him. In my opinion, by reason of the concession made by counsel at the trial that the facts were as stated by the Crown, this ground of appeal should be rejected.

Ground of Appeal 5 53 I have quoted above the extract from his Honour's remarks on sentence in which he referred to s21A(2)(b) of the Crime (Sentencing Procedure) Act 1999 and observed that the offence involved actual violence. His Honour went on to refer, albeit with the introductory word "moreover", to the existence of a threat of violence and the fact that the victim had attempted to escape from the threat. 54 The Applicant has drawn the Court's attention to the decision of this Court in R v Wickham [2004] NSWCCA 193 where Howie J (with whom Bell and Hislop JJ agreed) said: "[22] When a sentencing court is about to consider matters of aggravation or mitigation under s21A it is important that it recognise the limits upon the use to be made of those factors. The first is that found in relation to facts of aggravation in s21A(2) which, after listing a number of aggravating features, provides: 'The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.' The effect and policy behind such a limitation is self evident: there should be no double counting of aggravating features of an offence." 55 The Applicant contends that his Honour has committed the error identified by Howie J by failing to take into account the concluding words of s21A as quoted by Howie J. It is submitted that his Honour did have additional regard to the aggravating factor; namely, that the offence involved "actual violence" when that factor was an element of the offence. 56 The relevant element of the offence in the present case is the actual application of violence. The Crown submitted that his Honour did not take actual violence into account. Rather, his Honour took into account the threat of violence, which is not an element of the offence with which the Applicant was actually charged. 57 I accept that a course of threatened violence leading, as in this case, to an attempted escape can be an aggravating feature of an offence, where what is charged is the ultimate violent act itself. The Crown submitted that a proper reading of his Honour's judgment leads to the conclusion that he did not take into account the actual violence "in and of itself", that is to say, he did not give it "additional regard". Such additional weight as he did give this matter related to the threats, rather than the actual act. 58 I appreciate that it is inappropriate to parse and analyse the remarks of a sentencing judge too carefully. However, the use of the word "moreover", to introduce the second sentence of the relevant passage, does suggest that his Honour was referring to the course of threats as an extra factor and that the first words, after his Honour's reference to the statutory provision, i.e. "the offence involved actual violence" give weight to an element of the offence itself as an "aggravating factor" and, in that way, his Honour has given it "additional regard", contrary to the final words of s21A(2). Accordingly, in my opinion Ground 5 is made out.

Re-exercise of the Sentencing Discretion 59 Objectively this was an extremely serious offence. The maximum penalty for the offence is 25 years. The injury inflicted by stabbing the victim in the back continues to afflict the victim and, as his Honour correctly found, some of these effects are permanent. I have set out the nature of those injuries above. 60 There was nothing in the nature of an extenuating circumstance to attenuate the objective gravity of the offence. It was committed after a threat and a chase. The nature and circumstances of the attack were such that the victim's life was put at risk. Indeed, the Applicant declared at the time that it was his intention to kill him. 61 Nothing in the prior relationship between the Applicant and the victim attenuates the gravity of the offence. The victim gave some emotional support to the Applicant's estranged de facto. He was, of course, entitled to support his relative in any way he wished. Nothing justified the Applicant turning to violence, particularly violence of this order, in order to express the resentment he apparently felt. 62 The use of a knife has long been accepted as an aggravating feature of an offence. (See most recently R v Piccin No 2 [2002] NSWCCA 323 at [22].) 63 Knight DCJ outlined the subjective features of the Applicant. None are particularly remarkable. They do not attenuate the objective seriousness of the offence. 64 In my opinion, none of the aggravating factors found in s21A(2) are of significance for purposes of the present sentencing exercise. It was his Honour's reference to violence pursuant to s21A(2)(b) that entitles this Court to intervene. 65 I note that his Honour also referred in his judgment to s21A(2)(g): that the injury caused by the offence was substantial. Although no objection was taken on this basis during the course of this appeal, it would appear to me that this aspect of his Honour's reasoning suffers from the same defect as that identified above with respect to s21A(2)(b). The offence under s33 requires the infliction of grievous bodily harm. Where that is an element of the offence, the injury is necessarily "substantial". Accordingly, I do not take into account, unlike his Honour, the degree of injury as an aggravating factor. 66 A number of the mitigating factors identified in s21A(3) are pertinent and are the subject of findings of fact by his Honour as set out above. This includes: (g) that he is unlikely to reoffend; (h) that he has good prospects for rehabilitation; (i) that he has shown remorse; and (k) that he pleaded guilty. 67 His Honour quantified the guilty plea at 20 percent, attributing 12 percent to its utilitarian value and 8 percent to remorse. This Court's earlier decisions in R v Thomson (2000) 49 NSWLR 383 and R v Sharma 54 (2002) NSWLR 300 recommend, but do not require, the quantification of the plea with respect to its utilitarian value alone. In this case, as his Honour found, that aspect of the plea was not entitled to a substantial discount because it emerged at a later time, albeit prior to the trial. In all the circumstances his Honour's quantification of the two elements at 20 percent was generous. However, his assessment of the utilitarian value at about 12 percent or thereabouts was correct, in my opinion, as an order of magnitude. 68 In my opinion, having regard to the findings that the Applicant is unlikely to reoffend, that his prospects of rehabilitation are good, and that he has shown genuine remorse, and balancing this against the objective seriousness of the offence, I would commence with a head sentence of eight years. The utilitarian value of the plea would reduce this, in my opinion, to seven years. 69 As always, there are numerous matters that are capable of constituting a "special circumstance" for the purpose of s44. In this case, all but one have been taken into account in reducing the head sentence and, accordingly, should not be given additional weight by means of altering the statutory ratio. 70 The statutory ratio would lead to a non-parole period of five years and three months. One factor which has not been taken into account when determining the head sentence is the need for the Applicant to have a sufficient period of supervision to ensure that the progress as he has made with respect to his drug addiction continues and that his rehabilitation after release from prison is adequately supported. It appears to me that one year and nine months may not be sufficient for that purpose. However, I would only make a minor adjustment by adding three months to this period, so that he is subject to supervision for a period of two years. 71 I referred above to the observations of Howie J in Sutton. I accept that this is only a small adjustment. However, in my opinion, the objective gravity of the offence in this case, and the need for general deterrence with respect to crimes of this character, is such that a period of actual imprisonment of less than five years would be inadequate. 72 I propose the following orders:

3 Sentence of Knight DCJ passed on 3 October 2003 set aside.

4 The Appellant is sentenced to a term of imprisonment of seven years with a non-parole period of five years. 73 HIDDEN J: I agree. 74 BUDDIN J: I also agree. 75 SPIGELMAN CJ: The order is as I have indicated. **********

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