REGINA v Matthew Eric John EAGLETON

LOWER COURT District Court JURISDICTION : LOWER COURT 01/31/0096 FILE NUMBER(S) : LOWER COURT Coolahan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60002/03

O'KEEFE J BELL J

28 February 2003 REGINA v Matthew Eric John EAGLETON Judgment 1 O'KEEFE J: I agree with Bell J. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by his Honour Judge Coolahan ("the Judge") in the Newcastle District Court on 28 June 2001. 3 On 3 May 2001 the applicant pleaded guilty to an indictment containing a single count alleging the malicious wounding of Damien John Rawson at Mayfield on 12 November 2000. The applicant entered a plea of guilty to that count. The proceedings were stood over to 19 June 2001 for sentence hearing. As I have noted sentence was pronounced on 28 June 2001. The applicant had spent one day in custody in respect of the offence as at the date of sentence. The offence carries a maximum penalty of seven years imprisonment. The Judge sentenced the applicant to a term of eighteen months imprisonment to be served by way of periodic detention. No non-parole period was specified. 4 The applicant lodged a notice of intention to appeal on 3 October 2002. In an affidavit sworn on 14 February 2003 the applicant offered an explanation for part of the delay in bringing this application. He was taken into custody as the result of his failure to attend the periodic detention facility. He offers an explanation for that failure to which it is not necessary to refer for present purposes.

5 On 28 November 2001 the Parole Board revoked the applicant's periodic detention order pursuant to the provisions of s 163 of the Crimes (Administration of Sentences) Act 1999. The effect of this order was that the applicant then stood to serve the unexpired balance of the sentence which amounted to 1 year 5 months and 7 days. The applicant surrendered to the police on 1 January 2002 and commenced to serve that sentence. It will expire on 7 June 2003. 6 Prior to taking any step in this Court to challenge the sentence the applicant sought to have the Parole Board rescind the revocation order that it had made. On 27 March 2002 the Parole Board refused to do so. On 22 July the applicant was advised by a solicitor attached to the Prisoners Legal Service that he should file an application for leave to appeal and an application seeking an extension of time with this Court. It is apparent that some months had been taken by that Service in giving consideration to the applicant's position including investigating whether his case might be remitted to the District Court. There were further delays before the notice of intention to appeal was filed with the Court's registry. The applicant deposes to having been held in numerous gaols since being taken into custody. I accept this provides some explanation for the delays from that date. 7 It is common ground that prior to being taken into custody the applicant did not seek to challenge the sentence.

8 In written submissions the Crown opposed the making of an order extending the time in which to bring this application. At the material time the Criminal Appeal Rules provided that an application for leave to appeal against the severity of sentence should be filed within 28 days of the date of sentence. 9 In R v Beattie [2000] NSWCCA 201 this Court gave consideration to the circumstances in which an appeal against conviction might be entertained out of time. James J observed at [17]: "Logically, the first question for this Court to determine is whether it should grant the applicant an extension of time in which to appeal. On such an application the Court will usually require some satisfactory explanation of why an appeal was not brought within the time allowed especially if, as here, the delay is considerable. However, in deciding whether to grant an extension of time in which to appeal, the Court has usually entered upon some examination of the likelihood of any appeal succeeding." 10 I will return to the question of whether an extension of time in which to bring this application ought be allowed in the circumstances of this case. 11 The grounds of appeal set out in the applicant's written submissions are: 1. His Honour has failed to properly, or at all, apply the provisions of sections 6 and 44 of the Crimes (Sentencing Procedures) Act 1999 ("the Act") in sentencing the applicant; 2. His Honour has failed to give any, or any adequate, reasons for failing to impose a non-parole period in respect of the sentence imposed as required by section 45 of the Act; 3. The sentence imposed is manifestly excessive. 12 Before turning to the grounds of appeal it is appropriate to set out, briefly, the facts upon which the Judge sentenced the applicant. His Honour detailed his factual findings at pages 1 to 12 of his remarks on sentence. The applicant does not take issue with any of those factual findings. I do not propose to extract the whole of them. It is sufficient to note that the Judge found that the applicant had been sharing accommodation in Mayfield with the victim, Damien John Rawson. There had been some arguments about household matters prior to the date of the offence. There was some question about the applicant leaving the premises and moving to a caravan park. The Judge found that it was difficult to discern precisely what had occurred during the course of the offence but that: "It is very clear that Rawson was viciously assaulted intermittently by the offender over a period of some hours and as a result sustained serious injuries. The wounding occurred during the course of that assault." (ROS2). 13 The Judge found that everyone who was involved in the incident or who had witnessed some part of it was affected to some degree, probably grossly, by either alcohol or drugs or both. 14 His Honour appears to have accepted the following facts concerning the circumstances in which the wounding took place. The applicant walked up to the victim who was seated on a couch and struck him to the face with his fist. Mr Rawson who was affected by alcohol at the time did not recall exactly what happened after the initial blow, but he was aware that the applicant had hit him more than once. After the initial assault the applicant left him alone for a time and then returned and renewed his attack. The applicant persisted with his assault over a period of three to four hours. Mr Rawson while not clear on the detail of the assault recalled that he had been kneed to the head, punched and slapped. The applicant dropped a large stereo speaker on his back and jabbed him in the left shoulder and chest area with a knife. It was the stabbing that constituted the offence of which the applicant was convicted.

15 His Honour went on to conclude: "It is impossible to state with any degree of accuracy exactly what happened on this evening, except to say that the offender over a period of some hours violently assaulted the victim for reasons which remain unknown and in circumstances where the victim apparently did not retaliate. During the course of that assault, the offender stabbed the victim with the knife referred to in the victim's statement as constituting this offence." ….. The offence is, therefore, not to be dealt with on the basis of an isolated incident caused by a sudden loss of control or impulse which perhaps arose out of some degree of provocation, but rather as an offence committed during the course and extended period of methodical infliction of harm by the offender on the victim." (ROS 12-13). 16 The Judge reviewed the applicant's subjective circumstances at some length. No complaint is made on the applicant's behalf in this respect. Mr Golding summarised the Judge's finding as to the applicant's subjective circumstances in his written submissions as follows: (a) He had behaved out of character ROS13.5 (b) He was genuinely remorseful ROS 24.8 (c) He had pleaded guilty at the first available opportunity ROS 1.5 (d) He was a young man at the time of sentencing (twenty years old) ROS 14.2 (e) He had a criminal record of only marginal significance ROS 14 (f) He was employed at the time of the offence and by implication had good prospects of rehabilitation ROS 15 (g) He was in an apparently stable relationship and had a child ROS 15 (h) The offence may have been, at least in part, affected, unbeknownst to the applicant, by someone lacing his drinks with amphetamines ROS 25 (i) He had contributed on a voluntary basis to charitable works ROS 21 (j) He had not, before this offence, spent time in custody (k) He had taken specific steps to address his problems with alcohol ROS 20 (i) He was well regarded in the community ROS 22. 17 The applicant's criminal record disclosed an offence as a juvenile involving a conviction for "aggravated robbery" in respect of which the applicant had been placed on probation subject to the supervision of the Department of Juvenile Justice for a period of two years. That sentence was imposed in the Worimi Children's Court on 25 February 1998. 18 On 14 September 1998 the applicant was convicted before the Newcastle Local Court of (i) larceny in an amount less than two thousand dollars (two counts); maliciously destroy or damage property in an amount less then two thousand dollars (two counts); offensive behaviour; offensive language. In relation to the offences of larceny and malicious damage he was in each case sentenced to a term of one month's imprisonment commencing on 14 September 1998. He appealed to the Newcastle District Court against his conviction and sentence in respect of these matters. His convictions were confirmed however the sentences of imprisonment were quashed and in lieu thereof community service orders were made requiring the applicant to perform two hundred hours of community service work. 19 On 18 September 2000 the applicant was convicted before the Newcastle Local Court of common assault and custody of an offensive implement in a public place. In respect of each of these matters he was sentenced to the rising of the Court.

20 I turn now to grounds one and two. They are related and it is convenient to deal with them together. The applicant complains that the Judge erred in that he determined to impose a sentence to be served by way of periodic detention before he fixed the term of the sentence. Associated with this error the Judge is said to have failed to give reasons for not specifying a non-parole period. 21 The scheme of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") is clear. Pursuant to s 5(1) a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. It is not in issue in this case that the Judge was right to conclude that no sentence other than one of imprisonment was appropriate. Next the Judge was required to set the term of the sentence and to set a non-parole period pursuant to the provisions of s 44 of the Sentencing Procedure Act. It was open to the Judge to decline to set a non-parole period for the reasons set out in s 45(1) of the Sentencing Procedure Act. In the latter event s 45(2) of the Sentencing Procedure Act required the Judge to make a record of his reasons for coming to that decision. 22 After having determined to sentence the applicant to a term of imprisonment for three years or less it was then appropriate for the Judge to consider whether pursuant to s 6(1) of the Sentencing Procedure Act the sentence should be served by way of periodic detention; Regina v Foster [2001] NSWCCA 215; R v Meyer [2002] NSWCCA 451. 23 In Foster Badgery-Parker J (in a judgment which the other members of the Court concurred) observed that the failure of a sentencing judge to refer in the course of his or her remarks on sentence to the two stage procedure (fixing the term of the sentence in accordance with s 44 and then considering the alternatives to fulltime custody provided by the Sentencing Procedure Act) does not require a conclusion of error. His Honour went on to note at [33]: "Failure to adopt the two stage procedure may be productive of error, and because it entails that risk, sentencing judges should be at pains, to proceed in the manner which the statute requires … " 24 In R v Parsons & Poore [2002] NSWCCA 296 Smart AJ (in a judgment with which Handley JA and Sully J agreed) outlined the changes introduced to the law with respect to the periodic detention of prisoners by the Sentencing Procedure Act. His Honour noted at [83] - [86]: "Under the currents Acts the Courts have no role to play in revoking an order for periodic detention where an offender does not attend to serve his sentence on at least three occasions. That function is performed by the Parole Board. (The current Acts use the word 'revoking' and not cancelling). The Parole Board is not empowered to set a non-parole period. It is for the judge when sentencing the offender initially and imposing a term of imprisonment to fix a non-parole period. I have had regard to Discussion Paper 33 on Sentencing of the New South Wales Law Reform Commission of April 1996, (Pt 6 Periodic Detention) and to Report 79 of the Commission of December 1996, Chapter 6 and the Second Reading Speech of the Minister when introducing the 1999 Acts (Hansard, 29 October 1999) Legislative Assembly p 2324 - p 2330. It should be noted that the 1999 Acts did not follow the Law Reform Commission Report in significant respects. It was decided to streamline the previous procedures. I have found the history of periodic detention of assistance in understanding the present legislation on that subject. As the judge did not follow the procedures set out in s 44 and s 45 of the Crimes (Sentencing Procedure) Act 1999 and the setting of a non-parole period or the reasons for not so doing are important, the applicant should be given an extension of time and leave to appeal against his sentence. The changes which have been effected by the new Acts to periodic detention have not as yet been fully appreciated." 25 In the light of the reasoning in Parsons & Poore I do not accept the Crown's submission that grounds one and two raise a matter of form rather than substance. The Judge's remarks on sentence make clear that he approached the case on the basis that a sentence to be served by way of periodic detention was appropriate before fixing the term of it. Thereafter the Judge said: "As to the term of the sentence, I am of the view that a fixed term is appropriate, bearing in mind that he will receive the help that I have just referred to during the course of the sentence. I am of the view that that fixed term should be one of eighteen months." (ROS 28-29) 26 The reasons for not specifying a non-parole period appear to be the Judge's belief that the applicant would have the benefit of continuing a community based drug and alcohol rehabilitation program. This reflected the Judge's prior determination that the applicant would serve the sentence by way of periodic detention.

27 In approaching the matter by firstly determining that a sentence to be served by way of periodic detention was appropriate and by then setting the term of that sentence and deciding not to specify a non-parole period because the applicant would be at liberty and able to pursue rehabilitation in the community, I accept Mr Golding's submission that his Honour erred. There remains the question of whether we should intervene. We would only do so if we were of the opinion that some lesser sentence is warranted in law; s 6(3) of the Criminal Appeal Act 1912. 28 I turn now to a consideration of the ground that contends a fixed term sentence of eighteen months imprisonment was manifestly excessive. 29 The applicant mounted a favourable subjective case. There was evidence that he was truly remorseful and that he recognised that he had a significant alcohol problem and of his attempts to overcome it. Accepting all the favourable matters put on his behalf, a term of eighteen months imprisonment was one that demonstrated a marked degree of leniency. The Judge found that the wounding occurred in the context of a sustained attack committed over a period of hours. I was inclined to consider that notwithstanding error having been established this was not a case in which a lesser sentence was warranted in law. 30 Mr Golding submitted the effect of leaving the sentence to stand as one to be served wholly in custody is that the applicant will be returned to the community without any supervision. The Crown, in the course of oral submissions, acknowledged the force of this consideration contending that there was utility in a short period of parole such that the applicant might be required to commence a suitable course of continuing treatment for his alcoholism. In the light of the Crown's stance I am persuaded that it is appropriate to intervene and to allow the appeal to the extent of specifying a non-parole period. 31 I do not find special circumstances such as to reduce the non-parole period below three-quartes of the term of the sentence. Although I am mindful of the applicant's relative youth and need for alcohol rehabilitation I consider that a non-parole period of less than that which I propose would fail to reflect the seriousness of the offence. 32 In determining that it is appropriate for this Court to intervene and re-sentence the applicant by specifying a non-parole period I have taken into account the contents of the affidavit of David Barrow affirmed on 21 February 2003 and that of the applicant affirmed on 14 February 2003. I note that following an injury to his hand that required surgery in September 2001, the applicant was admitted to hospital suffering from pancreatitis brought on as the result of his alcohol abuse. Since being taken into custody the applicant has been performing well as is evidenced by his Inmate Work Performance Record and by his completion of a number of courses. 33 For these reasons the orders that I propose are:

(i) extend time in which to bring the application for leave to appeal;

(iii) allow the appeal and vary the sentence imposed in the District Court by the specification of a non-parole to expire on 7 March 2003;

(iv) direct the applicant's release on parole on 7 March 2003.

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