Regina v Newham [2005] NSWCCA 325 | Case summary

1 GROVE J: This is an application for appeal for leave to appeal against severity of sentence imposed by Coolahan DCJ in Newcastle District Court. 2 The applicant pleaded guilty to a number of offences when presented in the Local Court and he was committed to the District Court for sentence, however, in order to accommodate procedural defect an indictment was there presented. The applicant is treated as having pleaded guilty at the earliest practical opportunity. 3 The offences for which he was sentenced were all committed on 29 October 2003 and the victim was one Geoffrey Divertie. 4 The conduct of the applicant giving rise to the offences was, in a number of respects, somewhat bizarre, and it is convenient to relate the facts in their sequence. 5 The applicant had been staying for several days at the home in East Maitland of a woman of his acquaintance. On the night of 28 October he began "pestering" her to provide him with drugs. Another man (Krause) was staying at the house and, at the time, was in bed asleep. The woman woke him and asked him to take the applicant to ask "Geoff" (Divertie) for some speed. 6 Krause and the applicant went to Divertie's address in another suburb of Newcastle. Krause entered the premises. The applicant had never met Divertie. Shortly after entry, Krause returned to the applicant who was waiting in his car and they both went inside where the applicant was introduced to Divertie. The three of them smoked cannabis and watched a film by means of a video disk. 7 At about 1.30 am on 29 October the applicant grabbed Divertie by the shoulders, threatened him with a knife, and told him that they "were going for a ride". The three men went to an isolated section of East Maitland where the applicant stopped the car at the side of the road and began verbally abusing Divertie, calling him "a paedophile" and "a sick mother fucker". 8 The production of the knife and the removal of the victim from his flat were the basis of a charge of assault which the applicant asked to have taken into account on sentence pursuant to the Form 1 procedure. 9 In the isolated area near East Maitland, the applicant required the victim to get out of the car and he later admitted to police that he then punched the victim in the chest and kidneys, with the result that the victim screamed. He then ordered Mr Divertie to strip. He complied and stood naked. The applicant searched the discarded clothing and took $15 cash from the wallet. 10 This conduct was the basis of count 1 in the indictment which charged robbery of that sum. 11 Whilst Divertie remained naked the applicant knocked him to the ground making demands for money or drugs. With such requests, the victim was obviously unable to comply. The applicant then exposed his penis and made vulgar sexual enquiry of Divertie. 12 This conduct was the basis of the second count in the indictment which charged assault accompanied by an act of indecency in the presence of the victim. 13 Thereafter the applicant repeatedly punched the victim about his torso. There was an interruption but he returned to resume his attack. As a consequence Divertie fell and, among other things, was injured by contact when he fell on barbed wire. Other aspects of the attack led to the third count in the indictment which charged assault occasioning actual bodily harm committed in company, that is to say the company of Krause. 14 Finally, Divertie was driven back to his home and directed to sit on the floor and the applicant and Krause searched the premises. Divertie was again struck and responded by screaming. Eventually the applicant and Krause left, taking with them property of the victim, which included a coffee grinder, the video disk which they had earlier watched, binoculars, a mobile telephone and battery charger. These facts were the basis of a charge of stealing from premises which the applicant asked to be taken into account on sentence pursuant to the Form 1 procedure. The stolen items were taken back to the premises where the applicant and Krause had been staying. No property has been recovered. 15 It should be noted that Krause has not been implicated in the offences of robbery or indecent assault and, whilst he was a participant in the stealing of the property, his participation in the assault on the victim (according to a statement of the victim) was to engage in one or two kicks after the applicant demanded to know whether he (Krause) was going to "back him up". 16 In relation to these matters the applicant has been in continuing custody since 6 November 2003. On the second count of the indictment (indecent assault) his Honour sentenced the applicant to imprisonment for a term of 12 months commencing on 6 November 2003, on the first count (robbery) taking into account the matters on the Form 1, to imprisonment for five years commencing on 6 November 2004 with a non parole period of two years six months commencing on 6 November 2004 and on count 3 (assault occasioning actual bodily harm) to a fixed term of two years commencing on 6 May 2004 and expiring on 5 May 2006. 17 The overall effective sentence therefore can be regarded as a head sentence of six years with a non parole period of three years six months. 18 The applicant is a young man born 20 May 1982. He has prior convictions including two convictions for assault occasioning actual bodily harm. 19 It has to be acknowledged that the applicant had a most unfortunate and disturbed upbringing. He was moved numerous times between carers and locations. His parents had separated when he was very young and although in subsequent years he tried to establish rapport with his father, it is accurate to say that he met substantially with rejection. From time to time he lived in foster care and from the age of 14 he had commenced to live on the streets. 20 From that situation he was taken into a programme ("Kids Off the Streets") run by a priest (Father Riley) and accommodated in the Southern Highlands where it was arranged for him to do a 12 month course as a carpet layer. He successfully completed that course. 21 He formed a relationship with a young woman but was distraught at the breakup of this which happened in early 2003. Despite this, the mother of his former partner, provided a reference and spoke well of him. Both he and his mother gave evidence in the sentencing proceedings. She confirmed the matters which I have mentioned and elaborated upon them. 22 The applicant relies upon a number of specific grounds in addition to a cumulating ground that the sentences are, in all the circumstances, manifestly excessive. 23 It is convenient to deal with the specific grounds separately. All of these are focussed upon observations made by the learned sentencing judge in his remarks on sentence. 24 Having introduced expressly reference to s 21A of the Crimes (Sentencing Procedure) Act 1999 his Honour, stated, "the offences involved a series of criminal acts". The Crown acknowledges that this should be taken as a reference to the aggravating factor mentioned in s 21A(m) of the statute and notes in written submission: "The respondent does not dispute that such an approach is erroneous in the light of the observations of this Court in R v Tadrosse [2005] NSWCCA 145 ….. and ….. R v Tzanis [2005] NSWCCA 274". 25 In the same context his Honour added "the offender has two prior convictions for assault occasioning actual bodily harm". The Crown concedes that this appears to be a reference to the aggravating factor provided by s 21A(2)(d) of the statute. It is noted that his Honour did not refer to the qualification in s 21A(4). The Crown therefore acknowledged: "The respondent does not dispute that such an approach is erroneous in the light of the observations of this Court in R v Blair [2005] NSWCCA 78". 26 Again his Honour expressed his view that the victim would have been left "with some longstanding emotional sequelae". This is acknowledged to be an apparent reference to s 21A(2)(g) of the statute. 27 The Crown Prosecutor acknowledged: "The respondent does not dispute that such a reference would be erroneous in the light of the observations in this Court in R v Youkhana [2004] NSWCCA 412 …… and …. R v Street [2005] NSWCCA 139 … and R v Solomon [2005] NSWCCA 158". 28 It is further recognized that his Honour's observation on this matter must be confined to count 3, having regard to its context. I would add that there was a paucity of evidence to support what would appear to be, prima facie, a medical prognosis. 29 The fourth ground focuses upon his Honour's remark that "count 2 was committed in company" which appears to be a reference to the aggravating factor provided by s 21(2)(e) of the statute. Count 2, as noted, was an offence of assault immediately followed by an act of indecency. The offence charged is contrary to s 61L of the Crimes Act 1900 and carries a prescribed maximum penalty of imprisonment for five years. Legislation provides for a separate offence of greater seriousness which can be shortly referred to as aggravated indecent assault pursuant to s 61M(1) for which there is a prescribed maximum penalty of seven years imprisonment. One of the available circumstances of aggravation to elevate the offence into the more serious category is that the offence is committed in company. As I have stated, the applicant was not charged with the more serious offence and his Honour was required to limit his consideration of surrounding circumstances so as not to punish the applicant as if he had committed the more serious offence: R v Di Simoni 1981 147 CLR 383. 30 I should not pass from these four grounds without acknowledging with appreciation the candid and helpful stance in relation to these grounds adopted by the Crown Prosecutor. 31 It is, however, the final stance of the Crown that these were serious offences, as indeed they were, and its submission is that notwithstanding, the conceded errors, the sentences imposed were within the ambit of the sound exercise of discretion and that no less severe sentence would be warranted in law: s 6(3) Criminal Appeal Act 1912. 32 In my view the demonstration of error gives rise to the consideration by this Court of resentence. In that regard we are assisted by up to date material in the respective affidavits of the applicant and the material annexed to the affidavit of his solicitor. These show a commendable response to incarceration and a diligent attempt to improve his situation by availing himself of educational and other facilities whilst in custody. No challenge is made to his evidence that he is regularly visited by his family and is in good health. It is notable that he has apparently been urine tested without default and no charges have been preferred against him whilst in custody. 33 The consequence is that the applicant appearing for resentence should be regarded as in a more advantageous situation from the point of view of leniency than he was at the time that he appeared for sentence at first instance. 34 Having regard to the multiple conceded errors, the appeal is made good. The facts and circumstances, including those now known, do not point to a conclusion that no less severe sentences were warranted. I consider that the applicant should be resentenced. It is convenient to follow the pattern of sentence and the finding of special circumstances adopted by the learned judge at first instance. 35 I propose the following orders:

Regina v Newham

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