Regina v Rudd

Court of Criminal Appeal (NSW)|2010-04-09|Before: Beazley JA, Grove J, Hislop J

Background facts 4 The two offences to which the respondent, who is 64 years old with no prior criminal record, pleaded guilty were the culmination of months of disharmony between the respondent and his neighbours, Craig Flood and Emma Mackay. 5 The original cause of the disharmony was neighbourhood noise perpetrated by recreational motorbikes being ridden on the common, which fronted the homes of both the respondent and Mr Flood in the country town of Tingha, a small village near Inverell, in northern New South Wales. Mr Flood's two daughters shared a motorbike and rode on the common. There were times in 2007 when there would be up to 50 "passes" a day made by the bikes in front of the respondent's home. The noise became intolerable. Mr Flood's daughters were not responsible for all of the noise, nor was it asserted that they were responsible for noise on every occasion. However, the respondent saw fit to raise the matter with Mr Flood, who was not receptive to the respondent's complaints. 6 The respondent took other appropriate steps to deal with the problem, complaining to the local Member of Parliament and the local police. Between July and September 2007, the respondent made several complaints to the police, stating that Mr Flood had permitted his daughters to ride on the common near his house. As a result, Mr Flood was issued with a noise infringement notice. 7 Another incident occurred between the two families concerning the respondent's alleged abuse of Mr Flood's former wife, who was a friend of the respondent's partner, Michelle Moss. Then, in September 2007, the respondent and Mr Flood had a verbal altercation as a result of the respondent's motor vehicle being damaged by silicone paint. The respondent believed that Mr Flood was indirectly responsible for this. There were other provocative incidents between the two men. 8 During this period, the respondent was under a great deal of personal stress. The respondent's family constellation comprised the respondent, Ms Moss, her daughter and four grandchildren. The grandchildren were all under the age of 3. Ms Moss had significant health problems and Ms Moss' daughter had acquired brain damage and was developmentally delayed. The respondent played a major role in assisting with the care of his partner's grandchildren. 9 The offences were committed on 25 October 2007. The respondent had returned from work. He said he drank about five glasses of wine, which was more than he normally drank. The sentencing judge accepted that evidence. At about 8.00 pm, the respondent took his dogs to the paddock adjacent to the common, about 50 to 60 yards from Mr Flood's boundary fence, so that they could play in a rabbit warren. Whilst in the paddock, a dog owned by Mr Flood "suddenly … appeared", attacking one of the respondent's dogs, causing it to run away.

10 Unable to find the dog, the respondent took his other dog home and discussed what had happened (that he had lost one dog) with his partner, Ms Moss. They remained in the house, discussing the matter, for around half an hour. At about 9.00 pm, the respondent went out again, and, on this occasion, he took a machete with him. The machete was a garden tool he had owned for many years, which he used to cut back blackberry bushes. His evidence was that he took the machete to "defend himself" against Mr Flood's dog. The sentencing judge accepted that evidence.

11 While walking along the boundary fence line between his property and Mr Flood's, the respondent encountered Mr Flood and Ms Mackay. They directed provocative remarks to the respondent. Ms Mackay had already rung the police, as she and Mr Flood had seen the respondent walking close to the boundary fence. 12 There were no agreed facts before his Honour and the respondent, Mr Flood and Ms Mackay all gave evidence on the sentence hearing. The trial judge made the following findings as to what occurred: "… Mr Flood asked what [the respondent] was doing. Ms Mackay said, 'He is Jenny's [Mr Flood's former partner] puppet. She's probably got her hand up his arse and he had to walk down there. What are you doing, Jenny's puppet? Get a life. You're a dead set tripper.' … [The respondent] was told the police were on their way. Then [the respondent] got over the fence and walked towards the victims. He walked up to Ms Mackay and hit her lower back with the machete. (That forms count two.) This blow forced her backwards. He lifted it again as though to strike her. She ran away from him. She received a bruise and a cut to her lower back, bruising to her right shin and bruising to the left side of her face. Mr Flood walked towards [the respondent] to help Ms Mackay. [The respondent] raised the machete above his head. Mr Flood put out his left arm in a defensive motion and was struck there by the machete. (That forms count one.) He then ran away from [the respondent]. He got hold of a broomstick and hit [the respondent] hard with it on [the respondent's] face. He broke the broom handle. The blow stunned [the respondent]. He and Mr Flood struggled. Mr Flood managed to get the machete away from [the respondent], at the same time punching him in the face. He managed to get it to Ms Mackay, who threw it some distance away. [The respondent], who Mr Flood held, then bit Mr Flood's right thumb. (Part of count one.) Mr Flood sought help from Ms Mackay. She kicked [the respondent] in the side, in the testicles, in the head and in the stomach. The police arrived. [The respondent] was heard to yell, 'I'll cut your fucking head off.' Senior Constable [Hamish] Brown arrested him. Then [the respondent] said, 'Hamish, I came here to kill him.' He was asked why. He said, 'I hate him, Hamish.' When asked how he was going to kill him, he replied, 'I wanted to cut his head off. When I get out, I will kill him." 13 Mr Flood suffered a deep laceration to the left forearm that cut down to the fascia. The wound required 12 sutures. He also sustained a minor abrasion to the left cheek and a contusion to the right foot. There was also a bite injury to his right hand, which was not serious. 14 The respondent received a penetrating injury to the right eye, a laceration to the inner lip which required suturing, lacerations above the right eye, to the left eye and the left ear and some scratches and bruises to the arms and right shoulder. He required hospital treatment for his injuries.

Trial judge's finding as to the objective gravity of the offence 15 The sentencing judge found that the offence fell halfway between low and mid range of objective seriousness. His Honour found that the injuries sustained by both victims were relatively minor and that the respondent's intoxication on the night caused him to act out of character. His Honour was not satisfied that the respondent had taken the machete with him intending to use it on Mr Flood and regarded the offence as spontaneous. His Honour considered that what the respondent said to police, that he wanted to kill Mr Flood, were not statements of his true intentions. Rather, his Honour found that the respondent was describing his feelings of anger that had led to his loss of control, explaining why he had "snapped". 16 In finding that the seriousness of the offence was approximately halfway between low and mid range, his Honour rejected the Crown submission that the offence was mid range or above, because of the degree of violence, its single-minded nature, and the fact it was only brought to an end by the actions of the victims. 17 His Honour held there were no aggravating circumstances within the provisions of the Crimes (Sentencing Procedure) Act 1999, s 21A(2). In this regard, as his Honour found that the offence occurred outside the victims' home, his Honour rejected the Crown submission that the offence had occurred in the victims' home and, therefore, that was an aggravating circumstance pursuant to s 21A(2)(b). There was no challenge to that finding. His Honour had regard to the victim impact statements in accordance with the principles discussed by Sperling J in R v Slack [2004] NSWCCA 128 at [58]-[62]. 18 His Honour found that the respondent suffered a degree of extra-curial punishment in two respects. First, the respondent had sustained physical injuries in the course of the fight which ensued after he had attacked Ms Mackay. Secondly, at the time of the sentence hearing, the respondent had been advised by his employer, Inverell TAFE, with whom he worked for over 15 years as a storeman, that he may be disciplined upon conviction. His Honour accepted that the likely disciplinary action would be dismissal from his employment. 19 The respondent had also been required to live out of his home in Tingha, as a condition of bail. At the time of the sentence hearing, the respondent had sold his home and had been staying in a nearby town so that he could continue in his employment. In the meantime, his partner had moved to Yamba and the respondent travelled there on weekends. These domestic arrangements placed considerable strain on the respondent. 20 His Honour accepted that the respondent had expressed remorse. The respondent had no previous criminal history, had always been in stable employment and, up to the time of the incident, had significant responsibility for his partner's family. The respondent had stopped drinking by the time of the sentence hearing. His Honour found it unlikely that the respondent would re-offend. His Honour found special circumstances and allowed a 15 per cent discount for the utilitarian value of the plea of guilty. 21 His Honour had regard to the statistics compiled by the Judicial Commission of New South Wales in respect of sentencing for an offence under s 33. His Honour observed, relevantly, that of a sample of 23 cases where there were pleas of guilty, all but 8 received full-time sentences. Of those who had received a full time sentence, 24 per cent received a head sentence of 6 years. His Honour referred to the decision of this Court in R v AEM [2002] NSWCCA 58 at [113], that whilst it was appropriate to have regard to the statistics of sentencing patterns, they were a "blunt tool". 22 His Honour concluded, at [39], that "no penalty other than one of imprisonment is appropriate". His Honour stated that the period of imprisonment he proposed was 3 years. For that reason, it was not possible to suspend any period of imprisonment. His Honour considered, however, that the sentence should be served by way of periodic detention. His Honour considered that a sentence served by way of periodic detention would be a sufficiently severe form of punishment to act as a deterrent to the public and to the respondent. In ordering periodic detention, his Honour took into account the respondent's age, his prior good character, the unlikelihood of his re-offending and the unusual circumstances leading up to the offence. His Honour stated that in the respondent's circumstances, which included the domestic arrangements to which I have referred, the continuous obligation to comply with the terms of a periodic detention order would be "a salutary punishment": see R v Burnett (1996) 85 A Crim R 76 at 82 per Sheller JA.

Grounds (i) and (ii): departure from the standard non-parole period 23 The Crown contended that the sentencing judge erred in failing to justify the degree of departure from the standard non-parole period. This submission recognised that the standard non-parole period did not apply because the respondent had pleaded guilty. Nonetheless, it was submitted that the standard non-parole period remained an important guide for sentencing in respect of this offence. This submission was based upon the judgment of this Court in Regina v Jenkins [2006] NSWCCA 412. That case involved a Crown appeal against sentence for an offence contrary to the Crimes Act, s 33. Hoeben J (Simpson and Barr JJ agreeing) observed, at [25], that the sentencing judge's finding as to the seriousness of the offence, being below the mid range, "involved an exercise of a broad sentencing discretion". For an appellate court to intervene, a House v R [1936] HCA 40; (1936) 55 CLR 499 error had to be identified. 24 His Honour then considered the judicial process required where a standard non-parole period was prescribed by statute, noting, at [27], that the authorities were clear that: "… even when a Court decides that the standard non-parole period should not be applied, it remains relevant as a guidepost in the sentencing process." 25 That statement was based primarily upon the following remarks of the Court (Spigelman CJ, Wood CJ at CL and Simpson J) in R v Way [2004] NSWCCA 131; 60 NSWLR 168: "[121] … 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 Sentencing Procedure Act .

[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.

[123] The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.

[124] The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect." 26 Hoeben J, in Jenkins, remarked, at [28], that the authorities established that even if the standard non-parole period did not apply, it still had an important part to play and could not be left out of consideration when the ultimate sentence was formulated. 27 In this case, the sentencing judge, at [39] of his remarks on sentence, said: "Though I had regard for the guidance of it, I did not impose the standard non-parole period, because of the plea of guilty and because I did not find that it was a mid range case." 28 When these comments were brought to the attention of the Crown, the Crown accepted that they were sufficient to show that his Honour had correctly taken the standard non-parole period into account in the sentencing process. 29 The Crown submitted that even though his Honour had had proper regard to the standard non-parole period, the departure from it was so great as to indicate error. That question, is better dealt with in determining whether the sentence was manifestly inadequate: see ground (iii) below at [40].

Ground (iv): the sentencing judge took into account factors that were 'double-counted' in the decision to order that the sentence be served by way of periodic detention and in the finding of special circumstances pursuant to the Crimes (Sentencing Procedure) Act 1999, s 44 30 I am of the opinion that this ground has been established. A finding of special circumstances and an order that a sentence be served by way of periodic sentence both operate in favour of an accused. In the former case, a finding of special circumstance requires that the court impose a non parole period that is less than one third of the statutory proportion: the Crimes (Sentencing Procedure) Act, s 44(2). The consequence is that the accused person is given a non-parole period which is less than would be the case than if there was no finding of special circumstances. For reasons that are obvious, a sentence served by way of periodic detention is a more lenient sentence than a full custodial sentence: see R v Hallocoglu (1992) 29 NSWLR 67. 31 In finding special circumstances, his Honour took into account the respondent's age and the fact that this will be the respondent's first time in prison. In determining that the sentence should be served by way of periodic sentence, his Honour took into account, inter alia, the respondent's age and his prior good character. There was at least an overlap in taking into account the respondent's age when finding special circumstances and in deciding that the sentence should be served by way of periodic detention. There was also an overlap, in my opinion, in taking into account the respondent's prior good character and the fact that this was his first period of imprisonment. The two are not necessary companion pieces, but a person of prior good character is not likely to have served a period of imprisonment. 32 It follows, in my opinion, that as his Honour had regard to some of the same factors in finding both special circumstances, and in ordering that the respondent serve his sentence by way of periodic detention, his Honour erred: see R v Fidow [2004] NSWCCA 172 at [18].

Ground (v): the sentencing judge erred in finding the respondent's injuries fell into the mitigating category of extra curial punishment 33 The Crown also contends his Honour erred in finding that the respondent had suffered a degree of extra curial punishment in that he himself had received injuries inflicted by Mr Flood and Ms Mackay in the course of the incident, caused when Mr Flood hit the respondent with a broom handle and Ms Mackay delivered several kicks to his body. 34 In Clinton v R [2009] NSWCCA 276 Howie J (Allsop P and Hislop J agreeing) said: "[31] This Court has held that extra-curial punishment is a matter that can be taken into account in determining the appropriate sentence to be imposed upon an offender. It can be in the form of retribution meted out by members of the public or injuries suffered by the offender as a result of the commission of the offence: see Silvano v R [2008] NSWCCA 118; 184 A Crim R 593. The issue was most recently considered by this Court in Whybrow v R [2008] NSWCCA 270 where it was held that "multiple serious injuries" suffered by the applicant were relevant to an assessment of the sentence to be imposed upon him for three offences of dangerous driving causing death or grievous bodily harm arising from the motor vehicle accident in which he suffered the injuries.

[32] However, when the injuries are inflicted by the victim against whom the offence is being committed, the court is entitled to take into account whether the act that caused the injuries was an unreasonable reaction by the victim to the acts of the offender and the degree of the injury inflicted: Sharpe v R [2006] NSWCCA 255 at [61] to [67], see also Alameddine v R [2006] NSWCCA 317. Another relevant factor may be the seriousness of the offending when compared with the punishment inflicted: see the discussion in R v Davidson ex parte A-G (Qld) [2009] QCA 283." 35 In this case, his Honour found that there were two aspects of extra curial punishment: first, the injuries the respondent suffered; and secondly, that it was almost certain that he would lose his job, if and once he was convicted. The respondent's plea of guilty made the likelihood of such disciplinary action virtually inevitable. His Honour accepted the respondent's submission that this was a "most undignified way to finish a fifty year career" of productive employment. The Crown does not challenge the second aspect of his Honour's finding of extra curial punishment. 36 The respondent submitted that in circumstances where there were two matters that his Honour took into account by way of extra curial punishment, it was unlikely that the first matter, that is, the injuries the respondent suffered, had any material effect on the sentence that was ultimately imposed. I do not agree with this submission. His Honour would not, in my opinion, have regarded the injuries as relevant extra curial punishment if he did not intend for it to have an impact on the sentence to be imposed. 37 The respondent submitted, alternatively, that there was no error in his Honour finding that the physical injuries he sustained were a form of extra curial punishment. He submitted that there was an element of gratuitous cruelty in Ms Mackay's attack on him. By the time she commenced attacking him, he had been disarmed and Mr Flood was restraining him on the ground. However, it appears there was still a significant struggle in play at that time. Nonetheless, given the extent of the kicking in which Ms Mackay engaged whilst the respondent was on the ground, there is some force in the respondent's submission. The trial judge did not specify what aspect, if any of this assault constituted "extra curial punishment". However, given the conclusion I have reached, both on this issue and on the result of the appeal, this lack of specificity does not have any bearing on the outcome and it is not necessary to say anything further about it. 38 However, the more serious injury the respondent sustained was a penetrating injury to the right eye. The facts found by his Honour do not indicate when that injury was sustained. If it was caused by Mr Flood hitting him with the broom handle, then it would have been inflicted whilst Mr Flood was attempting to disarm the respondent and could not be considered to be an unreasonable reaction by Mr Flood. If it was caused by the punches that Mr Flood directed to the respondent's face, then that occurred either whilst the respondent was still armed with the machete, or whilst the respondent and Mr Flood were still struggling on the ground. In those circumstances, I consider that Mr Flood's reaction could not be considered unreasonable. 39 I consider, therefore, that his Honour also erred in taking into account the respondent's physical injuries, at least to the extent that it involved the penetrating injury to the respondent's eye and any injuries caused by Mr Flood punching him in the face.

Ground (iii): the sentences are manifestly inadequate because they fail to give proper weight to the objective seriousness of the offences and give excessive weight to the respondent's subjective features 40 During the course of the hearing of the appeal, the Court indicated to the Crown and the respondent that it had formed a preliminary view that error in respect of grounds (iv) and (v) had been made out. For the reasons I have given above, I remain of that view. 41 Having given that indication, the Crown informed the Court that its challenge to the sentence imposed by the trial judge was in respect of his order that the sentence be served by way of periodic detention. The Crown submitted that the sentence was manifestly inadequate and failed to give proper weight to the objective seriousness of the offence, and gave excessive weight to the respondent's subjective features. The Crown did not otherwise challenge the length of the sentence imposed by the trial judge. Nor did the Crown seek any different non-parole period if the Court did not interfere with the order that the sentence be served by way of periodic detention. 42 It cannot be gainsaid that this was a serious offence. The Crown submitted there were a number of features of the offence that could properly have led to a finding that it fell within the mid range, or at least just below the mid range, of objective seriousness. It enumerated the following matters as indicating this was an offence in or just below the mid range: "(i) The degree of violence used and the ferocity of the attack, whilst not high, was still significant: R v Bloomfield (1998) 44 NSWLR 734 at 740.

(ii) The actual use of a weapon, being a machete: R v Zhang [2004] NSWCCA 358 at [29] where the court found a meat cleaver or machete was worse than a knife in compounding the seriousness of an offence.

(iii) The continuation of the conduct after already committing an attack on Ms Mackay, which was a serious example of such an offence in itself.

(iv) The cessation of the attack due only to the intervention of the police.

(v) The ongoing emotional distress occasioned by the attack." 43 The Crown also relied upon the decision of this court in R v Miria [2009] NSWCCA 68. It was submitted that that case had comparable features to this. With respect, I do not agree. That case involved a Crown appeal from a suspended sentence imposed for a s 33 offence which involved a glassing attack perpetrated upon another patron at a hotel, in circumstances of minor irritation (the offender was bumped by the victim). The offender had three prior offences of common assault, two of which had occurred in hotels in similar circumstances. At the time of the offence, the offender was on a bond to be of good behaviour in respect of an offence involving violence. This Court held that a suspended sentence was manifestly inadequate. The offender was re-sentenced to a 2 year full time custodial sentence. The differences between that case and this are obvious on their face and I have not gained any assistance from it. 44 In determining the sentence to be imposed, the trial judge had careful regard to the statistics and the use that he could properly make of them. No error is alleged or discernable in that regard. His Honour's examination of the statistics is helpful in that it demonstrates that a sentence of 3 years, with 2 years non-parole, to be served by way of periodic detention, does not fall outside the range of sentences that have been imposed by the court for this offence. When there is added to that the fact that at 62 years of age, the respondent was a man of previous good character, who was financially and otherwise caring for his extended family, had always been productively employed, and who, unfortunately, after a period of personal stress and some aggravation from Mr Flood, had had a "brain snap" that resulted in him acting violently as he did, a 2 year sentence to be served by way of periodic detention, is not manifestly inadequate. Accordingly, notwithstanding error by the learned sentencing judge, I am of the opinion that no other sentence is warranted in law. 45 I propose that the appeal be dismissed. 46 GROVE J: I have had the advantage of reading in draft form, the judgment of Beazley JA. I agree with the order proposed and with her Honour's reasons. 47 I wish to add some brief comments about a matter that was incidentally mentioned during the hearing. 48 As Beazley JA has observed, the original cause of disharmony between the respondent and the victim was the riding of recreational motorbikes on the common and the consequential noise. The victim Mr Flood's daughters were contributors to this source of neighbourhood disturbance. 49 The complaints by the respondent through his local parliamentary representative produced three relevant letters which were among documents tendered at the sentence proceedings. They were addressed to that representative and obviously in response to his inquiries. Dated 3 July 2007, the local police commander noted that he considered the only power police would have to inhibit riding motorcycles in close vicinity of residences was under the "Noise Control Act". In fact, police were not so limited. 50 Dated 31 August 2007 an officer of the Department of Lands wrote that the commons were created "for the use of local residents for grazing only, unless it is otherwise specified in a Plan of Management". There was no evidence as to whether such proviso was implemented but I note that s 9 (1)(o) of the Commons Management Act 1989 expressly empowers the Commons Trust to prohibit or regulate the use of motor vehicles on the common. S 56(1) of that Act empowers various authorities to remove offending persons from the common and s 56(2) expressly authorizes a member of the police force to assist in removing such a person. 51 A letter dated 29 August 2007 from the secretary of the Commons Trust assumed, without specifying any provision in a Plan of Management to that effect, that motorcycles would use the common but should be directed to remoter parts. The Tingha Common apparently consists of about 5000 acres. 52 The second two abovementioned letters were forwarded to the respondent on 6 September 2007. The offences were committed on 27 October 2007. 53 My observation is that it was a great pity that the information contained in the correspondence was not appropriately consolidated and digested by all concerned which, if acted upon, may well have avoided the occurrence of the circumstances which so agitated the respondent that he committed the offences. 54 HISLOP J: I agree. **********

23/04/2010 - Typographical error - Paragraph(s) 50

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CITATION: Regina v Rudd [2010] NSWCCA 71 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Clinton v R [2009] NSWCCA 276 House v R [1936] HCA 40; (1936) 55 CLR 499 R v AEM [2002] NSWCCA 58 R v Burnett (1996) 85 A Crim R 76 CASES CITED : R v Fidow [2004] NSWCCA 172 R v Hallocoglu (1992) 29 NSWLR 67 Regina v Jenkins [2006] NSWCCA 412 R v Miria [2009] NSWCCA 68 R v Slack [2004] NSWCCA 128 R v Way [2004] NSWCCA 131; 60 NSWLR 168

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