(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.
(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62."
120 The principles to which Wood CJ at CL referred in paragraph (a) require some elaboration. The meaning of patent error is plain. However the nature of latent error which may attract judicial intervention is somewhat more elusive. In House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 Dixon, Evatt and McTiernan JJ said the appellate court may exercise its own discretion in substitution for the sentencing judge, although the nature of the error was not discoverable, "if upon the facts it is unreasonable or plainly unjust" so that the appellate court could infer that there had been "a failure properly to exercise the discretion which the law reposes in the court of first instance."
121 In Cranssen v R (1936) 55 CLR 509 at 520, delivered two days after the decision in House v The King, Dixon, Evatt and McTiernan JJ reiterated that in reviewing the adequacy of a sentence, "it is not necessary that some definite or specific error should be assigned" and that "[t]he nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound."
122 Most recently in Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 605 [58], Gaudron, Gummow and Hayne JJ referred to the two situations in which an appellate court may conclude that a trial judge's exercise of discretion has miscarried, as being "cases of specific error of principle" and "the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy…[when] the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons." Kirby J said (at [109]), "Where specific error of sentencing principle is not demonstrated and the complaint is one of manifest inadequacy of the sentence, it is only where it is shown that the 'sentence is definitely outside the appropriate range that [a court] is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence'. "
Determining the sentence
123 This Crown's challenge to the adequacy of the sentence falls to be determined against the backdrop of Jordan CJ's famous aphorism about sentencing that "the only golden rule is that there is no golden rule": R v Geddes (1936) 36 SR (NSW) 554 at 555. Having said that, however, his Honour observed that a judge should impose such punishment as:
" ... having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances and to be likely to be a sufficient deterrent both to the prisoner and to others."
This maxim, unsurprisingly, continues to apply: see Lupton v R [2003] NSWCCA 200 per O'Keefe J (Sheller JA and James J agreeing); R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198 per Grove J at [102]; R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 at [97] per Sully J (with whom Hidden J agreed); R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274; R v Rushby [1977] 1 NSWLR 594 at 598.
124 The legislative context in which the sentence was imposed appears from s 3A of the Crimes (Sentencing Procedure) Act 1999 which provides:
"The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
125 In Re Attorney General's Application under S 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515 at [57]; (2002) 137 A Crim R 196 Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) suggested that the introduction of s 3A in 2002 might alter the application of pre-existing sentencing principles, but expressed no view about the matter as it had not been argued.
126 In R v M A [2004] NSWCCA 92 at [23] Dunford J (with whom Studdert and James JJ agreed) said that s 3A is in substance a codification and elaboration of the purposes of criminal punishment described in Veen v R (No 2) (1988) 164 CLR 465 at 476, an observation referred to without demur in Re Application By Attorney General (No 3 of 2002) [2004] NSWCCA 303 at [46] by Howie J (with whom Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreed).
127 In Veen v R (No 2), above, at 476, Mason CJ, Brennan, Dawson and Toohey JJ said:
"The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."
128 Section 3A was inserted in the Crimes (Sentencing Procedure) Act 1999 by Schedule 1, cl 1 of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill. The Bill was intended to provide "further guidance and structure to judicial discretion in sentencing": Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002, at p 5813. The fact that s 3A was intended to reflect the principles I have quoted from Veen v R (No 2) is made plain in the Second Reading Speech to the Bill during which the Attorney General, the Honourable Bob Debus MP, quoted the above passage from Veen v R (No 2) as explaining that the new Bill would operate in an area which requires "the exercise of a complex judicial discretion": Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002, at p 5815.
129 As Dunford J said in R v M A, above, at [23], the High Court in Veen v R (No 2) recognised the "troublesome but unavoidable difficulty in giving weight to each of those purposes which overlap".
130 Troublesome though the task may be, it is essential that the sentence reflect the factors set out in s 3A. The fact that s 3A confers a discretion upon the sentencing judge as to the factors to be taken into account does not detract from that proposition. It reflects legislative recognition of the principles in Veen v R (No 2) and, in particular, the necessity to reconcile and rationalise the s 3A purposes in considering the sentence appropriate to the particular offence. The sentencing judge must reach an "instinctive synthesis" which takes account of and balances the "conflicting and contradictory" factors which bear upon the sentencing exercise: Wong v R, above, at 611 [75].
131 The nature of the exercise undertaken when imposing a sentence of imprisonment under the Crimes (Sentencing Procedure) Act was outlined by Howie J (with whom Hodgson JA and Levine J agreed) in R v Zamagias [2002] NSWCCA 17 at [23]:
"23 It is clear that, when sentencing an offender to a term of imprisonment under that Act, a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes (1936) 36 SR (NSW) 554; R v Rushby [1977] 1 NSWLR 594."
132 Although the sentence imposed is described as an "instinctive synthesis", the sentencing judge is obliged to state fully the reasons for determining the sentence. The significance of reasons is well known however deserves restatement in the sentencing context. One of the purposes of the statement of reasons is to ensure that an appellate court can review the reasoning process: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 276 - 281; R v McDonald (1998) 28 MVR 432 per Spigelman CJ at 437.
133 Significantly, in the criminal context, reasons have an additional purpose. They serve to ensure that the criminal law is "administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards which are fair and just": Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 622 [39] per McHugh J, Hayne J and Callinan J quoting Sir John Barry. In addition, as Brennan J said in Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 50:
"… the victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances."
Objective criminality
134 In order to determine the appropriate sentence, the sentencing judge was required to identify the objective criminality of the offence as well as take subjective factors into account. In the former respect, it is relevant to note this Court's statement in R v Dodd (1991) 57 A Crim R 349 at 354:
"As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime… it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2 ) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case : Rushby [1977] 1 NSWLR 594." (emphasis supplied)
135 In my opinion the Crown's submission that the sentencing judge failed to give adequate weight to the criminality or objective seriousness of the offence is correct. Although, in dealing with objective criminality, he said he had reviewed the evidence which he found to be established beyond reasonable doubt, he did not identify what aspects of that evidence he regarded as relevant to determining the objective criminality of the offence.
136 Indeed, his Honour's references to the issue of criminality as being "vexed", to the "very unusual form of injury" and to the case being "unusual, if not unique" without elaboration indicate, to my mind, that he had some difficulty characterising the objective criminality of the offence.
137 The sentencing judge explained his conclusion that the starting point for the focus of the sentence should be the upper limit of the mid range by saying he had had "regard to the manner in which the offence was committed, taking into account s 21A of the Crimes (Sentencing Procedure) Act, reviewing the statistics of the Judicial Commission … and keeping in mind the wide variety of facts and circumstances that apply to cases of this type".
138 His Honour's remarks concerning objective criminality gave little insight into his appreciation of the gravity of the offence. Nowhere did he express the reasoning process he adopted in undertaking the exercise referred to in Dodd of assessing the objective gravity of the offence.
139 Although he acknowledged the seriousness of the offence in the sense that he referred to "the injury to the mother and the death of foetus", his Honour did not expressly have regard to the premeditated nature of the offence, the cold-blooded manner in which it was contrived, let alone the violence that accompanied it or the permanency of the injury inflicted. While he had earlier referred to taking into account the aggravating factors that the offence involved gratuitous cruelty (s 21A(2)(f) and the vulnerability of the victim (s 21A(2)(l)), he did not address those matters by reference to the circumstances of the actual offence. His Honour's failure to refer to the factors which determined the objective seriousness of the offence would in many cases lead to the inference that they were not given weight: see R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [52] per Spigelman CJ.
140 It is impossible to discern from the remarks on sentence what, if any, weight the sentencing judge placed on the Crown's submissions concerning the objective criminality of the offence. It is equally impossible to discern how he treated Mr Steirn SC's submission that the respondent was also a "victim". In the light of his Honour's findings concerning the circumstances in which the offence was committed, I would have expected that submission to have been rejected out of hand. Instead his Honour merely said it "significantly overstates the way in which this sentencing process is to be considered", a cryptic and impenetrable remark.
141 Further, while his Honour recited a list of s 21A(2) and (3) matters he said he took into account he did not explain how and to what extent they operated by way of aggravation or mitigation. Indeed some of the matters which his Honour listed, such as s 21A(3)(i), which is the factor mitigating a sentence where the offender has shown remorse, were inconsistent with his earlier finding that the respondent's expressions of contrition and remorse should receive little weight.
142 His Honour's failure to deal expressly with the objective features of the offence stands in stark contrast to the detail he accorded to the respondent's subjective circumstances. It is apparent from that disparity in treatment that the sentencing judge fell into the error identified in R v Rushby [1977] 1 NSWLR 594 and allowed the respondent's subjective considerations to cause inadequate weight to be given to the objective circumstances of the case.
143 In my opinion the sentencing judge's remarks concerning objective criminality fell far short of the obligation to state reasons expressed in Soulemezis, McDonald, Pearce and Jago.
144 His Honour's failure to state his reasons in respect of the objective criminality of the offence is, itself, an error of law which would warrant setting aside his exercise of the sentencing discretion: R v McDonald (1998) 28 MVR 432 at 437.
145 His Honour was in error, in my opinion, in saying that the starting point for the focus of the sentence should be at the upper limit of the mid range.
146 The offence of malicious wounding with intent to do grievous bodily harm carries the highest maximum penalty prescribed by the legislature short of life imprisonment. In sentencing the respondent, the sentencing judge was required to bear in mind that that maximum penalty reflected the seriousness with which the public, through the legislature, considered the type of criminal conduct to which s 33 is concerned: R v Zamagias, above, at [11]. Although his Honour referred to the significance of the maximum penalty, in my opinion he fell into error in not characterising the offence as being in the high range, as the Crown submitted.
147 The objective seriousness of this offence was grave. The offence was premeditated, having being planned on the sentencing judge's findings from April 2002 when Ms Flick informed the respondent that she did not intend to have an abortion. Having been unable to dissuade Ms Flick from having an abortion, the respondent sought to achieve his end by other means.
148 First, he tried to enlist others by payment to do the deed for him. Having been unsuccessful in this respect, the respondent turned to achieve that result by a violent attack.
149 He executed the offence in a cold-blooded and callous manner.
150 First he lulled Ms Flick into a sense of false security by, as the sentencing judge found, making comments to her which convinced her he was caring and induced her to the view that he was supportive. He was in frequent communication with her by SMS and arranged to visit her the night before her move for the apparently benign purpose of bidding her farewell.
151 However the idea that he wished to farewell Ms Flick was a pretext. His intention was to kill the foetus. In other words he intended to cause precisely the serious bodily harm he inflicted. That fact alone indicates the gravity of the offence.
152 The assault itself, so far as Ms Flick was concerned, came out of the blue. It was unprovoked and involved sustained and substantial violence inflicted by a man who was clearly of significant physical proportions. He knocked Ms Flick to the ground, then brought his booted foot down upon her abdomen six or seven times. The force of the assault can be gauged not only from Ms Flick's evidence, but also from Dr McCaffrey's opinion that her uterus underwent "significant trauma" to produce the result of causing the haemorrhage to the placenta and the consequent draining of the foetus's blood thus leading to its demise.
153 Further, the offence cause Ms Flick permanent loss, a consequence which was inevitable once the respondent successfully executed his plan of killing the foetus.
154 In addition to the grievous bodily harm directly consequent upon the assault, the sentencing judge had evidence before him that the assault had caused grave emotional harm to Ms Flick.
155 It was apparent from answers Ms Flick gave in cross-examination that she was still reliving the assault 18 months later. She said:
"Q. And this assault that you tell us about, you say he stomped on you six or seven times. You certainly remember that don't you?
A. I can still feel it of a night."
156 In her victim impact statement Ms Flick said:
"When the doctor told me that they could not find Jonathan's [the name she had given the child] heartbeat, I felt my world was falling apart … After [the funeral] I just withdrew. I didn't want to talk to anyone. I did not feel comfortable around people. I felt that I couldn't trust people or judge me [sic, as in original] for not stopping what happened, not preventing it. I thought that I should have protected Jonathan, that I should have known that Phil was going to do this, and that I should have stopped him. I thought I shouldn't have seen him at all. I find that I cry while watching television, over any little thing. I never did this before. For the first six months after the offence I cried myself to sleep every night …"
157 In my opinion, having regard to the objective circumstances of the offence, the sentence imposed was manifestly inadequate. His Honour's errors are both patent, as appears from the matters to which I have referred, as well as latent, as appears from the fact that "[t]he nature of the sentence itself, when considered in relation to the offence and the circumstances of the case … afford convincing evidence that … the exercise of the discretion has been unsound": Cranssen v R (1936) 55 CLR 509 at 520.
158 I would allow the Crown appeal. Before I consider the sentence which should be imposed, I consider two other matters which were debated during argument.