Regina v HATHAWAY

(d) the offender has a record of previous convictions, 28 Subsection (4) provides a qualification to subsection (1) and states: "The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so." 29 Section 21A has been considered by this Court on many occasions. In R v Berg [2004] NSWCCA 300 Spigelman CJ noted that the introductory words of s 21A indicate that the section is concerned with the matters which the Court is to take into account "in determining the appropriate sentence." This may include consideration of the offender's prior convictions. However, this may not be because the offender's record makes the offence more serious. 30 In R v Wickham [2004] NSWCCA 193 which was concerned, inter alia, with s 21A(2)(d) Howie J said that "on its face the provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious." However, because in his Honour's opinion the common law rule "is that a prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and protection of the community," section 21A(4) would confine the impact of the subsection. This approach is consistent with R v Shankley [2003] NSWCCA 253; R v Johnson [2004] NSWCCA 76; R v Berg [2004] NSWCCA 300; R v Blair [2005] NSWCCA 78; R v McQueeney [2005] NSWCCA 168; R v Bellamy [2005] NSWCCA 329. 31 In Veen v The Queen (No 2) (1988) 164 CLR 465 the High Court considered the correct approach when sentencing an offender with previous convictions. Veen was, of course, decided before s 21A was enacted. In the well known passage in the joint judgment of Mason CJ and Brennan, Dawson and Toohey JJ at p 477 their Honours provide a statement of the principles relevant to the sentencing of an offender with an antecedent criminal history. 32 Their Honours identify the following elements:

Antecedent criminal history of an offender is a relevant consideration in determining the sentence to be imposed.

Although the antecedent criminal history is relevant the penalty imposed must remain proportionate to the gravity of the instant offence.

Antecedent criminal history is relevant to whether the offence should be characterised as aberrant behaviour by the offender or whether it is part of a continuing attitude of disobedience of the law which may, having regard to the need for retribution, deterrence and protection of society, indicate a more severe penalty is warranted.

Antecedent criminal conduct may reveal the moral culpability of the offender.

Antecedent conduct is not only relevant to a claim for leniency (however this statement may not be consistent with Gummow J's comment in Ryan v The Queen (2001) 206 CLR 267 at [67]). 33 It has been suggested, and the Crown submits in the present appeal, that elements three and four should be understood as acknowledging a role for the offender's record when determining the objective circumstances of the offence (see Hunt D and Donnelly H, "The Objective Circumstances of the Case and Prior Record" (1995) 7 Judicial Officers Bulletin 57 where reference is made to R v Smith unreported, NSWCCA, 16 December 1993). In Smith Allen J (with whom Hunt CJ at CL and Newman J agreed) stated that an offender's record is material "to the assessment of the objective gravity of what he did" at 8-9; R v Thorp, unreported, NSWCCA, 16 December 1993 at 11; Camilleri's Stock Feeds Pty Ltd v EPA unreported, NSWCCA, 17 December 1993, at 32; consideration of the matter was also given in R v Mulholland (1990) 1 NTLR 1 and there is a statement to similar effect in the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 at [48]. 34 Although the matter has been raised for consideration I doubt whether a resolution of the debate will be of great significance in the practical task of sentencing individual offenders. Furthermore, I doubt whether the majority in Veen concerned themselves with the issue. As the Chief Justice emphasised in Berg, s 21A provides a collection of the matters which a court must take into account "when determining the appropriate sentence." To the extent, at least, of retribution, personal deterrence and protection of the community an offender's previous offences are relevant and may legitimately indicate that a more severe sentence should be imposed. 35 In the present case I am satisfied his Honour's remarks should be understood, as inter alia, concerned with the matters he was required to consider having regard to s 21A of the Act. It is for this reason that his Honour commences by describing the type of offence as particularly serious "it carries the maximum penalty allowed under the law." His Honour then describes the particular offence as a "serious example" which, I accept is a reference to the objective criminality of the offence. However, his Honour then states that, in his opinion, the circumstances of the offence place it "above the median range for such offences." To my mind, although not speaking with absolute clarity, his Honour should be understood in this sentence as referring to the range of potential sentences available having regard to all of the circumstances relevant to the offence committed by the applicant. His Honour is expressing his opinion as to where the offence lies in that range. 36 In the following paragraphs his Honour provides the reasons for coming to the conclusion that the offence is "above the median range." To my mind, the matters to which his Honour refers both inform and explain the introductory paragraph. They include matters which s 21A requires to be considered when determining the appropriate sentence. 37 The first of those reasons is the criminal record of the applicant. His Honour's discussion of that record, which he correctly describes as "serious", must be understood as reflecting his Honour's concern to ensure that the sentence marked out the fact that the applicant was both a repeat offender and that his offences were escalating in seriousness. This is not a conclusion with respect to the objective criminality of the instant offence but a recognition that the sentence imposed for that offence must be sufficient to meet the needs for retribution, personal deterrence and protection of the community. 38 In these circumstances, whatever be the correct view of the operation of s 21A(2)(d), no error has occurred. The only question which arises is whether the sentence which his Honour ultimately imposed was other than appropriate for the particular offence. As I have later explained I am in no doubt that it was. 39 This ground of appeal fails.

Ground Two - The learned sentencing judge erred in failing to have regard to the delay between the commission of the offence and the applicant's arrest 40 The offence was committed on 1 August 2002. However, the applicant was not arrested until 8 June 2004, almost 2 years later. In these circumstances the applicant says that the delay in ultimate sentencing was a matter which his Honour should have taken into account and called for a reduction in the sentence. The applicant says that his Honour failed to acknowledge the delay when he said: "It is true that it has taken two years for this matter to come to light. I note of course that the offender did not himself go to the police to volunteer his crime. He gets no credit for the delay in the prosecution of the case, but equally none was sought." 41 The circumstances in which delay may be relevant when sentencing are well understood (see R v Todd [1982] 2 NSWLR 517 at 519; Mill v The Queen (1988) 166 CLR 59 at 64-66; R v Niass [2004] NSWCCA 149 at [16]. 42 There are three relevant matters: · the suspense or uncertainty in which a person may have been left; · whether the offender has demonstrated progress towards rehabilitation during the intervening period; and · a sentence for a stale crime calls for a measure of understanding and flexibility of approach. 43 In the present case there is no explanation for the delay in charging the applicant. However, it is only the suspense or uncertainty which follows the intervention by the authorities, including his arrest, which is relevant. Following his arrest the applicant was sentenced within three months. Accordingly, his Honour was correct to deny a credit for delay: see R v Shorten [2005] NSWCCA 106. Where an offender remains silent hoping that the offences will not be discovered a reduced sentence is for this reason inappropriate: see R v Webster [2005] NSWCCA 110. 44 With respect to the second matter his Honour had regard to the fact that the applicant had not committed any substantive offences during the previous two years and had built up a good relationship with the Douglas family. Accordingly, his Honour did have regard to the progress which the applicant had made towards rehabilitation during the previous two years. 45 As far as the third matter is concerned, in my opinion, the crime for which the applicant was sentenced was far from stale. Although there was a delay in bringing the charge, that delay did not of itself justify any lesser sentence. 46 This ground of appeal fails.

Ground Three - The learned sentencing judge erred in his application of the discount for the applicant's plea of guilty 47 The applicant pleaded guilty in the Local Court. The sentencing judge said of this aspect of the matter: "The offender pleaded guilty at the first reasonable opportunity. He is deserving of the maximum benefit by reason of the utilitarian value of his plea. He has also shown contrition. In my view he should be given a discount of twenty-five percent from the sentence that might otherwise have been imposed. Having regard to the seriousness of the offence committed in this case, had this matter gone to trial the offender would have been sentenced to a total term of imprisonment of at least nine years." 48 The applicant's submission is that the reference to the maximum benefit of the utilitarian value of the plea must be a reference to the twenty-five percent discount referred to in R v Thomson and Houlton (2000) 49 NSWLR 383 as being a possible maximum discount. Accordingly, as the discount his Honour allowed was confined to twenty-five percent it is submitted that no allowance has been given for contrition. 49 The guideline judgments of this Court have provided significant benefits in bringing consistency to the sentencing process. However, it is important to appreciate that whatever guidance they give to sentencing judges a judge must nevertheless reach a conclusion as to the appropriate sentence in the particular case: see R v Scott [2003] NSWCCA 286. In the present matter, although acknowledging that the applicant had shown contrition, the sentencing judge was on the material before him, entitled to the view that it carried little weight in the overall sentencing process. It is true that the applicant apologised in court to the victim but his record displays a continuing attitude of disobedience to the law. 50 The difficulties in identifying the appropriate discount for a plea of guilty where there is remorse and contrition were discussed by this Court in R v Gallagher (1981) 23 NSWLR 220 at 228 and more recently in R v Markarian (2005) 79 ALJR 1048 at 1057 in the High Court. 51 I can find no error in his Honour concluding that, even with the maximum benefit which his Honour considered appropriate for the plea, a total discount of twenty-five percent should be allowed for the plea and contrition.

Ground Four - The sentence is, in all circumstances, manifestly excessive 52 The applicant acknowledges that the offence was serious. Furthermore, he accepts that it was aggravated by virtue of the fact that he was on bail at the time. However, the applicant's submmission emphasises that although the attack was severe it was not sustained to the point where the victim suffered any lasting injury. It is also emphasised that at the time the applicant was only twenty and appears to have been affected by drugs. The evidence is that the applicant has made a change for the better in relation to his drug use. 53 The applicant also emphasises that he pleaded guilty and in these circumstances submits that together with his contrition a discount of thirty-five percent should have been allowed instead of the twenty-five percent provided by his Honour. It is submitted that in the circumstances which include delay the sentence imposed was manifestly excessive. 54 In my opinion, this submission must be rejected. The offence was objectively serious being committed on school property and involving a vicious attack upon a defenceless person at night. The applicant, upon being discovered, could have chosen to leave but instead used his tyre lever as a weapon for the purpose of inflicting injury upon the school teacher who has suffered significant and continuing injury including psychological difficulties. This is not surprising having regard to his employment as a school principal which requires him to often work alone in the evening and carry out the duties of supervisor and caretaker for the school. 55 The offence was aggravated by the fact that the applicant reoffended during a period of conditional liberty being on bail for a number of offences with which he had been charged three months earlier including larceny, possessing ammunition without a licence, possessing prohibited plants, possession of equipment for administering prohibited drugs and assault occasioning actual bodily harm. 56 The applicant has a criminal record which required the sentencing judge to pay particular regard to the need for retribution and personal deterrence. 57 Notwithstanding the age of the applicant and his efforts to form stable personal relationships I am satisfied that the sentence which his Honour imposed was within the appropriate range.

Section 6(3) of the Criminal Appeal Act 1912 58 If I had come to the conclusion that his Honour had erred in the sentencing process it would have been necessary to consider the application of s 6(3) of the Criminal Appeal Act 1912. . As will be plain from my conclusions in relation to the fourth ground of appeal, if error had been identified, I am not persuaded that a lesser sentence was warranted in law or should have been imposed. 59 In my opinion, although leave to appeal should be granted, the appeal should be dismissed.

60 HALL J: I also agree with the order proposed by Justice McClellan.

61 SPIGELMAN CJ: The order of the Court is as indicated by his Honour. **********

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