REGINA V. MAIN & TURNER [2003] NSWCCA 268

1 HIDDEN, J: We are in a position to give judgment now and I will invite Justice Greg James to give the first judgment. 2 GREG JAMES, J: These are appeals by the Director of Public Prosecutions under s.5D of the Criminal Appeal Act 1912 in respect of sentences imposed by his Honour Judge Black, QC. in the District Court of New South Wales. 3 Each of the respondents was charged with the offence of malicious wounding in company committed on the 31 August 2002, that being an offence punishable by a maximum penalty of 10 years imprisonment. In addition, in each case, each respondent asked the sentencing Judge to take into account, and he did, one matter on a Form 1, that comprising the offence of malicious damage to a motor vehicle, an offence which, if charged on indictment, attracts a maximum penalty of five years imprisonment. 4 At the time of the respondents coming forward for sentence the respondent, Mathew Anthony Turner, was aged 18 years, having been born on the 10 October 1984 and the respondent Matthew Morgan Main was aged 19 years, having been born on the 20 June 1984. 5 The respondent, Matthew Anthony Turner, had been arrested on the 2 September 2002, refused bail and spent four months in custody in a Juvenile Detention Centre referrable to this matter during the period 3 January 2003 until sentence on the 2 May 2003. 6 The respondent, Matthew Morgan Main, had been initially refused bail but apparently had received bail within days thereafter and otherwise had been on bail pending sentence. 7 The trial judge passed, in respect of each respondent, sentences of 18 months imprisonment to commence on the 2 May 2003 and to expire on the 1 November 2004. In each case he directed the release of the respondent on the entering into of a good behaviour bond for the term of the sentence. To each bond there were attached conditions: in the case of Matthew Anthony Turner, that he appear before a court as required, be of good behaviour, advise any change of address, reside at a nominated address and report to the Wollongong Probation and Parole Service and thereafter during the term of the bond, undergo such courses, not limited to anger management and alcohol, as that Service may recommend and obey the reasonable requirements of that Service; in the case of the respondent Matthew Morgan Main, to appear before a court as required, be of good behaviour, advise of any change of address, reside at the Oasis Centre or at such place as the Oasis Juvenile Support Network may direct and attend such courses, training or counselling as recommended by the Oasis Youth Support Network during the entire term of the sentence. Thus it was that in each case a sentence of 18 months was imposed, suspended on the respondent entering into the bond to which I have referred. 8 In the case of Mathew Turner I have made reference to the four months custody in which he was detained prior to sentence. Mathew Turner had some prior record for offences of malicious damage to property, larceny, maliciously destroying property, using offensive language and, most notably, on the 30 August 1999 aggravated robbery, shoplifting, common assault and stealing for which he had received a period of probation of some 14 months. 9 The learned trial judge had regard to that record in particular when considering whether the offender should have the benefit of a backdate or some other consideration on sentence which might warrant different treatment before him to that afforded to the other respondent, Matthew Morgan Main, whose record was considerably less but which included one offence of break, enter and steal and one offence of receiving stolen property, for which parental responsibility undertakings were accepted, and other offences of possess implements to enter and drive conveyance and possess prohibited drug in respect of which the first attracted a bond and the second was dismissed with a caution. 10 In his remarks on sentence the trial judge turned to the facts of the offence after considering the status of each of the offenders before him. He noted that Matthew Main had to be regarded as an adult and that although Mathew Turner was technically a juvenile and the particular offence was committed two months before he turned 18, he concluded that he should deal with them in the same way under the same sentence regime and thus would deal with Mathew Turner as according to law rather than as a juvenile. He regarded the four months pre-sentence custody of Turner as offset by the difference in the records of the two offenders. 11 He referred to the facts of the case as tendered to him in a statement of facts and accompanying papers submitted by the Crown. His Honour did not detail those matters but did conclude that what had occurred was a "nasty and unpleasant attack upon an older man carried out by these two young men". His Honour adverted specifically to the actual use of weapons, in one case a wheel brace, and one or more screwdrivers. He referred to the victim having been stabbed by the use of at least one of the screwdrivers. He referred to the offence as involving gratuitous cruelty, that it was persisted in despite the pleas of the victim to desist. He referred to the harm, loss or damage caused by the offence as being substantial and involving emergency hospital admission. 12 In addition to the injuries inflicted using the wheel brace and the screwdriver, his Honour referred to what in the remarks on sentence has been transcribed as "puncture" which may relate to the use of the screwdriver or which may relate to the additional activity of punching. His Honour also referred to kicking. 13 His Honour noted that both the offenders were on conditional liberty for one reason or another at the time of the commission of the offence and took that into account. He had regard to all those matters in concluding that it was a nasty offence of violence which required, in the community's interest, that there be a penalty such as might discourage the commission of such offences. No doubt his Honour was referring to both considerations of personal and general deterrence. 14 His Honour rejected that there was any acceptable explanation which might provide an excuse for either of the offenders to have assaulted the victim in the way in which they did, although there was, he accepted, some connection tending to give some context arising from the relationship between Mr Turner and the victim's daughter, which has now resulted in that couple having a child. 15 His Honour turned to the inability of Mr. Turner, as he put it "neutrally", to restrain his feelings of anger and frustration when alcohol becomes a factor, as giving some basis for understanding of how this came about. In the case of Mr. Main, his Honour similarly turned to Mr. Main's background which included reference to a problem with drugs, but his Honour concluded these did not excuse the vicious behaviour to which the statement of facts referred. In his view the offences were serious and thus to be marked by sentences of imprisonment. 16 His Honour then turned to the subjective features of each of the offenders. He referred to the detailed reports which had been provided to him in the case of Mr. Turner by Dr. White and by Mr. Holme, who is a juvenile justice counsellor with the violent offender programme. There were other reports provided in respect of Mr. Turner's period in custody at the Baxter Detention Centre and the Keelong Centre. 17 His Honour referred also to material provided by way of assessment and by way of reference from Captain Paul Moulds of the Salvation Army Oasis Support Network and John Haines, Team Leader, Client Services, in respect of Mr. Main. It is not necessary to detail the full contents of those reports except to say that in the case of Mr. Turner his Honour concluded that Mr. Turner was evidenced by the report to be making significant and successful efforts to deal with problems, many of which had not necessarily been of his own making, that he appeared to be making successful efforts to deal with his psychological state and background matters, he had been responding to support and help and was capable of continuing to do so although he had had a record of previous violent activity. 18 His Honour concluded that his period of four months in custody and the assistance he had been afforded whilst in custody had in his case such a result as favourably inclined his Honour to the prospect of rehabilitation and the avoidance of violent or dangerous conduct in the future. 19 He determined, from the evidence provided by the Juvenile Justice worker, that assistance was available to the applicant in custody but that the same assistance might be afforded to the applicant whilst not detained full-time in a custodial institution. He accepted on the evidence before him that the respondent, Turner, was an appropriate person to be put into those courses and that by reason of the plea and the material before him and the evidence which he had heard, he was satisfied that Turner's prospects of rehabilitation were high. 20 His Honour concluded from the Salvation Army material it was clear that there were similar prospects in respect of Mr. Main, that he had considerable incentives, as Mr. Turner did, to improve himself and stop re-offending. In Mr. Main's case he was particularly impressed by the serious concern evinced by the evidence from the Oasis Youth Support Network of the result of a custodial sentence on Mr. Main. 21 It was those matters that minded his Honour to make the order suspending the sentence of imprisonment he had otherwise determined was appropriate. His Honour in that regard said:- "I hope that that will have the result of giving these two young men the opportunity of stepping away from their unfortunate activity heretofore, with the knowledge that it is entirely in their hands. If they re-offend then it is very difficult to see how a court would not impose the sentence I had in mind." 22 Appropriately, his Honour did not, having determined to suspend the sentence, embark on a consideration of whether or not an order should be made for the service of the sentence in a Juvenile Detention Centre or whether a non-parole period should be applied or consider special circumstances. 23 His Honour imposed the conditions on the bonds to which I have referred in order to ensure the purpose of suspending the sentence to which he had adverted would be carried out and, indeed, as far as Matthew Main is concerned, that would require him to remain during the term of the bond effectively under the supervision of the Oasis Youth Support Network. 24 The Crown's appeal is brought on the ground that the sentences as suspended were inadequate and manifestly so. In support of that assertion the Crown asserted that there were, although not errors warranting appellate interference in themselves, matters in what the trial judge had said and, more importantly, matters to which he had not expressly adverted that indicated an insufficient consideration of relevant matters and a basis upon which it could be said that the sentences were, on their face, inadequate. It was contended that the trial judge's remarks were too brief, that the trial judge failed to make express reference to matters which, even if they might have helped the offenders, did indicate an insufficient, inadequate or, indeed, it was put at one stage, not "terribly careful" approach. 25 It was accepted that there were powerful subjective considerations. It was accepted that these considerations have specific and particular significance when a court comes to consider whether a sentence of imprisonment might be suspended but it was also submitted that the trial judge had failed sufficiently to consider the gravity of the matter and that he had allowed subjective considerations to overwhelm the objective considerations involved, this notwithstanding it was accepted that the psychiatric reports and the Salvation Army reports were admitted by consent, were unchallenged, no cross-examination was sought of the authors and it was conceded were material that could be relied on, except in the one respect which the trial judge specifically noted. 26 It was argued that it was not reasonably open to the trial judge to find the seriousness of the offence as his Honour must have, or he would not and could not properly, in law, have come to the conclusion that an 18 month sentence should be imposed, even though it was accepted in argument that a two years sentence might not have attracted an appeal. It was also put that the suspension orders were not open to the trial judge, albeit it was accepted that the appropriate course would be, at least, were the Court minded to endeavour on appeal to impose a sentence, for the sentences to be ordered to be served by way of periodic detention. 27 In his written submissions the Crown adverted to the facts of the commission of the offence briefly and in particular adverted in detail to the individual psychiatric problems faced by each of the respondents, to mount a submission that notwithstanding regard might be had to their individual problems, it was necessary to consider whether those problems were such as might constitute a danger to the community, such that, mitigating against a shorter sentence that might be imposed because of such problems, were considerations in favour of a longer sentence on the basis of the need for protection for the community. 28 However, his Honour appears, to me at least, to have had these very matters in mind. True it is he did not discount the sentence by any mathematical calculation in respect of the pleas of guilty. True it is that he did not express any mathematical addition to the sentence occasioned by consideration of the matters on the Form 1 - I do not know that there is any principle which required him to - but I, for myself, contrary to the view the Crown submitted should be taken, do not regard those as signposts towards an approach that was not "terribly careful" or any indication of error. 29 For myself I consider that a manifest inadequacy is one which, when one considers the sentence passed on its face and has regard to the findings of and circumstances before the trial judge, is inexplicable without being flawed by error, even if that error is not specifically identifiable. It has been said that it should be so clearly wrong that the matter does not require argument. In this case I can see good reason why an experienced trial judge would take the course that he did in the community's interest, notwithstanding the appalling behaviour of each of the respondents in an extended episode of intoxicated violence on the day in question. I do not see that these sentences or the suspension of them, having regad to the wide discretion vested in any experienced trial judge, were manifestly wrong such as to warrant appellate intervention, if the court exercises the jurisdiction under s.5D in accordance with the well-known principles set out in the case law which I need not here repeat. 30 Filed on behalf of the respondent, Turner, were three affidavits which it is sufficient to say explain that the rehabilitation process to which his Honour was referring seems to be well under way. That material could be taken into account and would be taken into account, in my view, if it were necessary for the Court to have regard to his Honour's determination as wrong and to turn to the consideration of whether it should stay its hand in the exercise of its discretion under s.5D. 31 On Main's part there is no suggestion that the process is not proceeding satisfactorily but in my view, although I would (were I of the view that the trial judge had erred) be minded to exercise that discretion having regard to the rehabilitation, to dismiss the appeal, the court should conclude that his Honour did not fall into any such appellable error as might warrant the exercise of this jurisdiction which, after all, is a jurisdiction which the case law indicates should be exercised rarely particularly where rehabilitation might be proceeding. The views of an experienced trial judge in such cases command a great deal of respect. 32 I am of the view that for these reasons the appeal should be dismissed. 33 HIDDEN, J: As Justice Greg James has pointed out, the Crown Prosecutor in this Court expressed the view that the sentence of 18 months imprisonment imposed upon each of the respondents was markedly lenient but acknowledged that the appeal would not have proceeded but for the fact that the sentence in each case was suspended. 34 In my view this was an appropriate case for that course to have been taken in respect of each of the respondents. The significance of a suspended sentence and its place in the armoury of punishments provided to courts by the Crimes (Sentencing Procedure) Act was examined by Howie, J. in Regina v. Zamagias [2002] NSWCCA 17 at para.22 ff. His Honour's approach in the present case appears to me to be entirely consistent with the significance and value of the suspended sentence procedure explained by Howie, J. in that case. In particular, I would refer to what Howie, J. had to say at paras 31 and 32 of that judgment, as follows:- "As s.5 of the Act recognises, the imposition of a sentence of imprisonment is a grave step for a court to take whether or not the offender's liberty is immediately removed or curtailed. Section 5(2) requires a court, which imposes a sentence of imprisonment of six months or less, to indicate to the offender, and to record, its reasons for imposing such a sentence including the reasons why no penalty other than imprisonment is appropriate. These restrictions upon the power of a court to impose a sentence of imprisonment apply even if the sentence is suspended. A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended: JCE at [25], R v Foster at [36] where reference is made to statements to that effect in other jurisdictions. That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order even though it may appear on its face to be less punitive. Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case, a suspended sentence may be particularly effective and appropriate." 35 I agree that this appeal should be dismissed for the reasons given by Justice Greg James. 36 SMART, AJ: I also agree, for the reasons given by both the presiding judge and Justice Greg James, that these appeals should be dismissed. 37 HIDDEN, J: The order of the court is that the appeals are dismissed. **********

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