Regina v Reid

Court of Criminal Appeal (NSW)|2005-08-23|Before: Sully J, Hidden J, Hall J

Introduction 1 The applicant, Mr. Reid, pleaded guilty before a Local Court Magistrate to a charge of having maliciously wounded a named victim with intent thereby to do grievous bodily harm to that victim. The applicant was committed accordingly to the District Court for sentence. He stood eventually for sentence on 27 August 2004 before her Honour Judge Payne. Her Honour convicted the appellant, sentenced him to imprisonment for 6 years and 9 months and set a non-parole period of 4 years and 8 months. 2 The offence for which the applicant was thus sentenced contravenes section 33 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. The offence is nominated as item 4 in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW), ("the Sentencing Act"); and the term of 7 years is provided as the "standard non-parole period" for item 4. 3 The applicant contends that her Honour, in reasoning to her sentencing decision, "erred by double counting particular aggravating features of the offence".

The Material Facts 4 These are summarised conveniently, and as follows, in the remarks on sentence, and there was no dispute about the accuracy and the sufficiency otherwise of that summary: "The prisoner and the victim, Anne-Maree Taylor, have known each other since the early 1970's. The prisoner and the victim were in a de facto relationship but have not been in this type of relationship for the past eighteen years. The prisoner and the victim still see each other as friends. About 12.30 pm on Saturday 13 March 2004 the prisoner and another female attended 31 Howard Avenue, Bega where the victim was living. It was her residence. At the location the victim was sitting at her dining table having a cup of tea when the other female sat on the other side of the table and the prisoner stood near the victim. The dining table is next to the kitchen area. The victim asked the female if she wanted a cup of tea and the prisoner became aggressive and demanded to know who had been staying at the victim's place. Two of the victim's children aged ten and three were also in the house at the time. The prisoner started becoming very aggressive and shouting at the victim. He went in to the kitchen and removed a large knife from a rack that was hanging off a cupboard. The prisoner waved the knife at the victim whilst the victim was still sitting at the table. The prisoner then shouted, "Die you cunt", and slashed down the victim's face causing a deep laceration from the left side of the top of the victim's nose down to the bottom of the right side of her chin. The prisoner pushed the knife towards the victim's throat. The victim then grabbed hold of the knife as she thought the prisoner would stab her again, causing a deep laceration to the thumb and part of her hand. The prisoner threw the knife towards the sink in the kitchen and took the children and left with the other female. The prisoner is not the natural father of the two children but has visited the children numerous times and has looked after them." 5 Later in the remarks on sentence her Honour summarises conveniently, and as follows, the medical evidence descriptive of the injuries caused to the victim: "In the report of the Surgical Registrar, Dr. Grant Duncan Stewart, the following is found. The victim sustained a laceration to the left side of the face, extending from the bridge of the nose to the chin and two lacerations to the right thenar eminence. The victim went to the operating theatre where she was given a general anaesthetic. The facial wound was cleaned and found to extend from the bridge of the nose into the right nasal cavity (through the cartilage) into both the upper and lower lip, through both vermilion borders and into the chin. The nasal wound was approximated with 2 x 5/0 vieryl sutures to the cartilage. The entire wound was then enclosed with 18 x 5/0 nylon sutures to the skin. There was also five sutures to the thumb. The victim was admitted overnight and discharged the following morning. There is also a report from a general surgeon and the date of that report is 10 June 2004. The following is noted therein, "The wound has healed very well and has minimal scarring. There is certainly no disfigurement with regard to facial expression. There is no problem with food or liquid spillage when she is eating or drinking. There is a little paraesthesia between the wound and the midline but Anne-Maree says this is improving and as it is only paraesthesia rather than anaesthesia, in my opinion it will continue to improve but will never be completely normal. The paraesthesia or numbness does not cause her any problem with eating or drinking etcetera. There will be a visible scar but this will decrease as the months and years pass. I do not think she needs any further surgery for cosmetic reasons." 6 During the course of the proceedings on sentence the victim read out in open Court the following impact statement: "When Paul was attacking me I was petrified and I thought I was dead. He was screaming at me. He picked up a knife from the kitchen and he was yelling that he was going to kill me. I struggled and I held back the knife and he was slashing my face and trying to push it and I tried to push it away with my feet as I knew I had to survive and this stopped him from stabbing, jabbing a knife into my throat. I was very fearful of me myself and my children. One of Paul's girlfriends was present at the time and that attack, of the attack and tried to talk to Paul telling him that was, that he was doing was wrong, was not wrong. But she took no, but he took no notice and then later denied that she seen anything. This makes me feel even more worthless and upset that I thought we were friends. And through this I was feeling, I was fearing that he was going to leave me for dead and take … (not transcribable) … and Gerard away and take their lives with his own. I feel that I can no longer trust people and any anger and violence makes me petrified and the children also. I live in fear that this will happen again and I'm pleading for Paul to have some therapy and help he's, him so that he doesn't, does not happen again to me or anybody else. I can't ready any more." 7 There ensued a short adjournment; and immediately thereafter the applicant gave sworn evidence. The evidence was brief. It includes in re-examination the following: "Q. Your son is very close to you? A. Yeah, I brought him up. Q. And to be, you spent more time bringing up your son than Miss Taylor did? A. Yes. Q. And he has a lot of anger himself that he can't resolve? A. No, he, he knows details that I wouldn't bring up about, about it and he just knows the full story of what went on and why and everything and I'm, I don't blame, I don't make excuses and -- Q. Your son also knows that you're going to be away for some time and you won't be there for him? A. Yeah. Q. And that's one of the things that's upsetting him and upsetting you, is that right? A. Yeah. And I'd like to say I disagree with Miss Taylor's description of me -- Q. Of you? A. -- being a threat to her children, because I'm the sole person who used to show them affection and look after them and Benny knows all this and that's why he's -- Q. What you're saying is that you still care for Miss Taylor's other children? A. They seen me as their dad that they never had and I, and I love them. Q. And you realise that what you've done may well estrange you forever from those children? A. When I used to get upset by them for the year and three months I was constantly getting upset by her activities and children getting, picking up medication pills and that, but like I said I don't want to blame -- OBJECTION WILLIS: I object.

HAESLER: I don't press this. Q. Mr. Reid, there were things that upset you about Miss Taylor and you realise that your response was wrong? A. Yeah, but I, yeah, I don't blame nothing on anybody ." [emphasis added]

The Sentencing Judge's Approach to Sentence 8 Her Honour, having summarised the basic facts, looked first at the appropriate discount for the plea of guilty. Her Honour allowed a discount of 25% "for utilitarian considerations". Her Honour accepted that the plea was "also some indication of contrition or remorse". 9 Her Honour next turned to considerations which she grouped under a heading: "Objective Seriousness of the Offences (sic) and R V Way (2004) NSW CA (sic) 131". Her Honour quoted paragraphs 117 and 118 of the judgment of the Court of Criminal Appeal in Way; summed up the competing positions of counsel; reviewed the medical evidence quoted herein at [5] and concluded that, for the purposes of Division 1A of Part 4 of the Sentencing Act, the offence "falls somewhat below the middle range of objective seriousness but only slightly below that range". 10 Her Honour next turned to a consideration of the various factors, both aggravating and mitigating, that section 21A of the Sentencing Act requires any sentencing Judge to take into account in the course of determining an appropriate sentence. It will be necessary to say later herein something particular about this topic. 11 Her Honour considered, finally, the matter of special circumstances. Her Honour concluded that "there should be some small alteration of the statutory ratio in this case to allow some element of reduction in the non-parole period for an allowance for special circumstances". 12 Her Honour then drew together as follows the disparate considerations previously mentioned: "Accordingly the sentence I would have imposed prior to utilitarian considerations is one of nine years. That will be reduced by twenty-five percent to six years and nine months. The non-parole period I specify in this case is one of four years and eight months. The balance of the term is between the commencement of the sentence and the termination of six years and nine months." 13 This formulation led to some interchanges between her Honour and counsel then appearing for the applicant (not being counsel who appeared for the applicant before this Court). If her Honour's explanations are extracted and collated into unbroken narrative, they read: "I took the view that the standard non-parole period was seven. Prior to the guilty plea. If that would have been reduced by twenty-five percent it would have been five years and three months. If you look at it this way, if you reduce that to six and a half years which is somewhat less than the standard non-parole period then six and a half years is somewhat less. I did not think it was greatly less. If you reduce that by twenty-five percent comes out at four years and ten months. And then I made that further reduction of four years and eight months. If you look at it that way it is an allowance of two months for special circumstances. But then if you actually put that as against the head sentence which is nine years less twenty-five percent brings it down to six year, nine months. Three quarters of six years, nine months is, in fact, five years. I found there were special circumstance. I took the view it was not a standard non-parole period case. It was somewhat below the standard non-parole period. There were special circumstances but only marginally. I have started with the head sentence and reduced that to six years and nine months and then looked at the non-parole period as against that and then if you actually look at it the four months that I have allowed for special circumstances because as against six, nine it is five for seventy-five percent and then I took it down by four."

The Error Alleged by the Applicant 14 The submission of the applicant is to the following effect:

[1] Section 54B(3), read in conjunction with section 54A(2), of the Sentencing Act requires her Honour to take into account, when considering the objective seriousness of the offence, only the factors enumerated in section 21A of that Act.

[2] Her Honour did that. In other words, any of the section 21A factors which bore upon the objective seriousness of the offence were identified and brought to account in aid of deciding whether that assessment of objective seriousness put the offence at, or above, or below the statutory standard non-parole period.

[3] Her Honour, having decided where she saw the offence as standing on that scale of objective seriousness, returned to section 21A in the way that would be normally done in any case not involving Division 1A of Part 4 of the Sentencing Act . That entailed a balancing of the relevant section 21A aggravating and mitigating and other factors. In striking that balance her Honour included in this second assessment the very features that she had previously considered in connection with the Division 1A assessment. This amounted to the double counting of the relevant aggravating section 21A factors.

Relevant Legal Principles 15 When her Honour came to examine the factors which she was obliged by law to consider in the course of deciding upon an appropriate sentence for the applicant, her Honour was not short of appellate guidance. 16 In terms of general principle a representative example of that guidance can be taken from the following extract from the decision of this Court, (Gleeson CJ, Lee CJ at CL and Hunt J) in Reg 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, and we consider that 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." 17 In terms of giving dutiful effect to the requirements of Division 1A of Part 4 of the Sentencing Act, her Honour had, of course, the guidance of this Court (Spigelman CJ, Wood CJ at CL, Simpson J), in Reg v Way (2004) 60 NSWLR 168. Reference has been made previously herein to her Honour's citation of paragraphs 117 and 118 of this Court judgment. Those paragraphs read: "117 In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: "are there reasons for not imposing the standard non-parole period?". 118 The question will be answered by considering: (1) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1)." 18 The obvious significance of these basal statements of principle is enhanced by reference to some of the equally significant things that are said in succeeding paragraphs of the judgment. In particular: "119. Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended. 120 Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period. 121 If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in ss 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Crimes (Sentencing Procedure) Act 1999. 122. In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount." "127. The approach which we have outlined does not seem to require a departure from the intuitive or instinctive synthesis approach to sentencing which received judicial support in R v Thomson (at 396-397 [57]-[60] and which was favoured in the joint judgment in Wong v The Queen (2001) 207 CLR 584, but which has also attracted some criticism ( R v Markarian [2003] NSWCCA 8 - special leave to appeal to the High Court granted). Nor do we see it as requiring resort to a rigid two-tiered approach which involves determining an objective sentence and then adjusting it to take account of subjective factors of the kind which was criticized in AB v The Queen (1999) 198 CLR 111, per McHugh J and Hayne J. 128. In R v Whyte , Spigelman CJ did not regard the use of guideline judgments as being inconsistent with the ultimate application of an "instinctive synthesis approach" (at [160]-[167]) and we do not see that any material difference arises where the benchmark or reference point is given by legislation." "129 Moreover, if the exercise is confined to a single stage, the risk of double counting which might otherwise be involved can be avoided. That arises from the circumstance that some of the aggravating and mitigating factors referred to in s 21A (for example, the use of violence on the one hand, or the presence of provocation or duress on the other hand) are of direct application to the circumstances in which the offence occurred, and need to be taken into account in assessing where the offence ranks in the range of seriousness. If they were to place it for example in the mid range, then to bring them to account again for the purposes of s 54B(2) would involve double counting." "131 What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act." 19 Her Honour did not have the added assistance of a later decision of this Court, (Wood CJ at CL, Grove and Hoeben JJ): Reg v Reyes [2005] NSWCCA 218. That decision clarifies a question which seems to me to be left at large by the decision in Way itself: that is to say, not what question should be asked in giving effect to Division 1A of Part 4; but when in the progress of the process of reasoning to a final sentencing conclusion the question should be asked. At paragraph [44] Grove J, delivering the principal judgment, says: "Had his Honour adverted to the statute, the first step ought to have been to assess whether the individual offences lay in the middle of the range of seriousness." [ emphasis added] 20 I complete this survey of relevant principle by expressing my own firm conviction that, unless and until the High Court of Australia says otherwise, - something which the joint principal judgment deliberately does not do in the very recent decision: Markarian v The Queen [2005] HCA 25, - sentencing Judges should continue to adopt the approach that was endorsed by this Court, (Hunt, Badgery-Parker, Abadee JJ), in Reg v Beavan; unreported: NSWCCA, 22 September 1991. In that case, Hunt J, delivering in effect the judgment of the Court said: "What I wish to add is this. Sentencing is largely an intuitive process. It does not lend itself to the application of rigid formulas. The influences of the different factors to be taken into account in each case are infinitely various. In many cases, the different factors overlap, and it would be almost impossible for a judge to identify the precise influence which any one factor has had upon the sentence ultimately imposed. Discounts for assistance given to the authorities, where they can be identified, may fall within a special category: Regina v Cartwright (1989) 17 NSWLR 243: Regina v Brett James Gallagher (CCA, 16 May 1991, in the course of being reported). But, that category to one side, I regard it as both unnecessary and often unwise for a sentencing judge to identify a sentence which he or she regards as appropriate to the particular case without reference to one factor and then to identify the discount which is thought to be appropriate with regard to that particular factor; Regina v Williscroft [1975] VR 292 at 299-300; Regina v Holder [1983] 3 NSWLR 245 at 258, 270; Regina v Morton [1986] VR 863 at 868; Regina v Young [1990] VR 951 at 955; Regina v Brett James Gallagher (per Gleeson CJ at 20; Hunt J at 2-3). I say with all due respect to the judge in the present case, who obviously had a particularly difficult trial to conduct and who apparently felt obliged to do everything which he could to explain in detail the sentence which he imposed, for the benefit of the parties. As I said in Regina v Brett James Gallagher (at 2-3), sentencing is not the same as awarding damages for injuries where such steps of reasoning are usually exposed. As sentencing appeals to this Court are not re-hearings, it is unnecessary for a sentencing judge to expose the precise reasoning by which the ultimate sentence is reached. What is important for the parties and (if necessary) this Court to know are the judge's findings in relation to any facts upon which the sentence is based and which were in dispute and the various considerations which were taken into account in determining that sentence where it would be expected that reference should be made to them in that particular case. Where more than a judge's intuition is involved, the actual mathematics adopted by him or her need not be exposed. The very nature of the art of sentencing is such that it is usually simply not possible for judges to describe the often difficult process by which the ultimate sentence is determined."

The Application of the Foregoing Principles in the Present Particular Case 21 In my opinion her Honour did not correctly implement the approach explained in paragraphs 117 and 118 of Way. It seems to me that her Honour, instead of considering both of the categories described in (i) and (ii) of 118 before assessing the basal question propounded in paragraph 117, considered (i); answered in the light of the conclusion reached upon that basis only, the question propounded in paragraph 117; and then returned separately to (ii). 22 That approach demonstrates, in my respectful opinion, error of principle; and leaves open precisely the risk of double counting to which Way draws clear and exact attention in its paragraph 120. 23 Such a conclusion calls for the consideration of the question posed by section 6(3) of the Criminal Appeal Act 1914 (NSW): is some other and more lenient sentence warranted in law? 24 In my opinion, the answer to that question is: no. 25 I regard the objective seriousness of this offence as being very significant. The attack was admittedly unprovoked. It involved the deliberate and vicious use of a knife, always a significant matter of aggravation. The plea itself admitted an intent to do grievous bodily harm to the victim. The injuries inflicted and their consequences to the victim were plainly very serious. The considerations proper to paragraph 118(i) alone of Way would place this offence, in my opinion, at the mid-range of seriousness, at the very least. 26 The considerations proper to paragraph 118(ii) of Way could reasonably result, in my opinion, in a slight amelioration of that initial assessment; that would be to give the applicant full value for the relevant mitigating factors save only the factor of a proper discount for the plea of guilty. 27 In that connection it could not be said reasonably, in my opinion, that there was any error in her Honour's decision to factor into her overall judgment a discount of 25 percent; but not regarding that figure as an invitation for an outburst of creative forensic mathematics. 28 The basal question having been answered in the affirmative; taking thereupon the approach outlined in Way at paragraph 121; and bearing in mind the twin legislative indicators of a maximum penalty of imprisonment for 25 years and a standard non-parole period of imprisonment for 7 years; I am wholly unpersuaded that a sound instinctive synthesis, even allowing for the discount of 25 percent, could not reasonably yield a head sentence of 6 years and 9 months and a slightly ameliorated non-parole period of 4 years and 8 months.

Orders 29 For the whole of the foregoing reasons I propose the following orders:

[1] That leave to appeal against sentence be granted;

[2] That the appeal against sentence be dismissed. 30 HIDDEN J: I agree with Sully J. 31 HALL J: I agree with Sully J. **********

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Criminal Appeal Act 1914(NSW)

R v Way (2004) 60 NSWLR 168 Reg v Dodd (1991) 57 A Crim R 349 CASES CITED: Reg v Reyes [2005] NSWCCA 218 Markarian v The Queen [2005] HCA 25 Reg v Beavan; unreported: NSWCCA 22/9/91

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