REGINA v GREENHALGH

COUNSEL : Applicant: P M Strickland Crown: G E Smith SOLICITORS : Applicant: D J Humphreys Crown: S E O'Connor CATCHWORDS : Sentencing Appeal - whether sentencing judge failed to approach the sentencing task in manner required by s 44 of the Crimes (Sentencing Procedure) Act 1999 -whether non-parole period should be reduced. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s44 CASES CITED: R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Carrion (2000) 49 NSWLR 149 DECISION : See par 12

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CCA 60213/2001 MASON P LEVINE J HOWIE J

Tuesday 2 October 2001 REGINA v Gary Grant GREENHALGH

1 MASON P: The applicant was charged with the murder of Mitchell Wilder. He pleaded guilty to manslaughter at what was found to be the first practicable opportunity, and that plea was accepted by the Crown. Adams J sentenced him to eight years imprisonment with a non-parole period of four years and six months. The sentence commenced on 1 April 2000. 2 His Honour described the facts of the offence in the following terms: [quoted from paras 2-4 and para 7] The offender, who has been an alcoholic for many years, together with some friends, including the deceased, was involved in a drinking bout over a period of something like two days. During the night of the day in question, 11 April 2000, an argument broke out between the offender and the deceased at about 9 o'clock. It appears that the offender walked over to where the deceased was sitting on a bed and punched him hard with a fist, knocking him back on to the bed. One or more blows were again inflicted at that point. The deceased left the room and walked outside with the offender following him calling on him to fight. It seems most unlikely that the deceased attempted to fight the offender who, however, punched him again. The deceased fell to the ground and the offender tried to kick him although, no doubt having regard to his drunken state, he did not succeed and his foot did not reach the deceased's body. The offender walked away from the deceased who was still then alive and returned to his unit which is part of the complex in which this event occurred. No-one appreciated the fact that the deceased had suffered a subdural haemorrhage. I accept the fact that the offender did not for one moment think that he had inflicted lethal blows. Unfortunately, some six hours or so later, the deceased, who remained lying where he was outside his unit, died from a subdural haemorrhage…. The deceased died as a result of blows of significant violence inflicted on him by the offender when they were both affected adversely by alcohol. The autopsy reveals that the deceased suffered a number of injuries to his head and face. Although not all of those were inflicted by the offender, I am satisfied beyond a reasonable doubt that the offender was the aggressor, relying mainly on the evidence of the eyewitness, the lack of any defensive injuries to the deceased, and the lack of any injury to the offender. 3 The applicant had a very limited formal education and his reading age is consistent with that of an 11 year old child. At some stage he was placed in an institution as a state ward because he was considered uncontrollable. He has a record of convictions for assault and theft and robberies. He is now aged 37. He has spent a considerable part of his adult life in prison. Otherwise he has been unemployed. 4 There is a history of alcohol abuse and physical fighting. The concluding paragraphs of Adams J's remarks on sentence were as follows: The offender has expressed no contrition for Mr Wilder's death except in so far it may be fair to infer a level of contrition from his plea. I am bound to say, however, that in the circumstances, the plea was an acceptance of the inevitable, as there could have been no doubt that he was at least guilty of manslaughter. I have some misgivings about whether special circumstances exist in this case but I think, in the public interest, I should act upon the basis that the offender's alcohol problem was a significant factor in the offence and that a lengthy time of supervision may assist him to develop personal resources allowing him, if not to overcome, to at least moderate, its effects on his life and the lives of those around him. He presents as a man without social support except for those who join him in his drinking bouts. A time longer than would otherwise be the case structured supervision may well be not only in his interest but also in the public interest. The commencing point for sentencing this offender in all the circumstances seems to me to be a sentence of nine years with a non parole period of six years. In light of the decision in R v Smith , R v Houlton [2000] NSWCCA 309 in relation to appropriate discounts for pleas of guilty, I cannot see a proper basis for denying this offender the discount available to persons who plead at first opportunity. Accordingly, I allow a twenty-five per cent reduction in the sentence. So far as the non parole period is concerned, this would reduce the term to four years and six months. In respect of the full term, however, I think that a period of eight years is appropriate having regard to the special circumstances even though this is slightly more than a twenty-five per cent discount would produce if calculated arithmetically. Gary Grant Greenhalgh, you are sentenced to a term of eight years commencing 13 April 2000 and ending on 12 April 2008 with a non-parole period expiring on 12 October 2004. 5 The applicant does not suggest that the commencing point for the sentence imposed was excessive. However, the challenge focuses upon what might be termed an error of process, and in particular the failure to approach the sentencing task in the manner required by s44 of the Crimes (Sentencing Procedure) Act 1999 which provides: 44. Court to set term of sentence and non-parole period

(1) When sentencing an offender to imprisonment for an offence, a court is required: (a) firstly, to set the term of the sentence, and (b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence.

(5) Schedule 1 has effect in relation to the determination of a term and a non-parole period for an existing life sentence referred to in that Schedule.

6 In R v Carrion (2000) 49 NSWLR 149 Spigelman CJ pointed out at 152 that: In my opinion, cl 37(a) [of Schedule 2] does not constitute a statutory provision which leads to a conclusion that s44 of the 1999 Act is not applicable in the present case.

The Crimes (Sentencing Procedure) Act is in large measure a consolidating Act, but it is not only a consolidating Act. A specific difference is found in the comparison between s44 of the 1999 Act and s5 of the 1989 Act. The previous legislation provided for the setting of a minimum term and an additional term. The new legislation provides, first, for the setting of a total term and then, for a non-parole period. This Court had rejected a construction of the Sentencing Act 1989 that in some way it was appropriate to proceed on the basis that the total sentence was a primary consideration: see R v GDR (1994) 35 NSWLR 376 at 376-377, 378; R v Hampton (1998) 44 NSWLR 729 at 731-732, R v Bloomfield (1998) 44 NSWLR 734 at 740.

7 The applicant's challenge to the learned sentencing judge's reasons proceeds thus: 1. The starting point was a sentence of nine years. 2. Applying R v Thomson ; R v Houlton (2000) 49 NSWLR 383 a 25 percent reduction for a plea of guilty was appropriate. 3. "Special circumstances" were found to exist. 4. The 25 percent discount should have been applied to the total sentence in accordance with s 44(1). This would have produced an adjusted sentence of six and three quarter years. 8 This reasoning is not challenged by the Crown and I accept it. It is common ground that Thomson and Houlton establishes the proposition that where a discount is given for a plea of guilty, then that discount should be applied to the total sentence. 9 It is also not disputed that s44 requires the court to approach the sentencing task firstly by setting the terms of the sentence, and then by setting the non parole period for the sentence. 10 The applicant submits that when the court therefore comes to resentence the applicant, it should reduce the non parole period that was set by Adams J. I would not be disposed to do this. 11 I would accept his Honour's finding that there were special circumstances, albeit that it was expressed somewhat tentatively, and I am supported in that by the evidence placed before this court contingently upon the resentencing exercise. Nevertheless, in turning to the issue of what is the appropriate non-parole sentence, I am of the view that the objective circumstances of this serious offence and the issues of general and specific deterrence mean that it would not be right to reduce the non-parole period beyond that that was fixed by the sentencing judge. 12 Accordingly, I would allow the appeal and quash the sentence imposed by his Honour. I propose that the sentence imposed by Adams J be varied to a term of six years and nine months commencing on 13 April 2000 and ending on 12 January 2007. I would confirm the non parole period fixed by his Honour. 13 LEVINE J: I agree. 14 HOWIE J: I also agree. 15 MASON P: That will be the order of the court. ******************

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