Was the sentence on Count 1 excessive?
36 Counsel for the applicant described the reasoning process of Finnane DCJ as "admirably transparent". His Honour identified his starting point and the matters which justified a discount. In respect of the charge of affray (count 2), he said this: (ROS 13)
"Dealing firstly with Mr Williams I took the view that the offence of affray in which he was involved having regard to the part he played in it, his age, the fact that he was prepared to bring a knife along with him, that he was prepared to assault someone behind the counter before getting further involved, the offence would merit a sentence of imprisonment of two years, however, taking into account all the factors that I have mentioned before, Aboriginality, deprivation, early plea of guilty, I have decided that that sentence should be reduced to 18 months and that there should be a six month non parole period."
37 The reference to Aboriginality was a reference to Mr Williams' upbringing in circumstances of social deprivation, making it appropriate to approach the sentencing task in the manner described in R v Fernando (1992) 76 A Crim R 58 at 62-63.
38 His Honour then dealt with count 1, the charge of maliciously wounding with intent. Again he adopted the same approach. He said this: (ROS 13)
"In relation to the malicious wounding offence that is an extremely serious offence. But for the factors that I have mentioned, I would have imposed a sentence of 10 years imprisonment. Because of the factors that I have mentioned, I have reduced that to seven years and six months and I have decided to impose a non parole period which is less than the normal. If I were to do nothing about the normal ratio of non parole period and head sentence, a sentence of seven years and six months would result in a non parole period of five years seven months and 16 days, however I decided to impose a non parole period of four years."
39 The applicant, in these circumstances, makes a number of complaints.
· First, that his Honour overvalued the objective circumstances and undervalued the subjective circumstances, giving insufficient weight to the plea of guilty and the "Fernando matters".
· Secondly, that the starting point of ten years imprisonment was excessive.
40 Dealing with the first matter, the approach of his Honour was unusual. Ordinarily a sentencing Judge is encouraged to identify the discount for the plea of guilty (R v Thomson (2000) 49 NSWLR 383, per Spigelman CJ at 418/419, paras 157, 158 and 160). The other issues should inform the instinctive synthesis used to determine an appropriate sentence. By dealing with the issues "in globo" there was the risk that important aspects of the applicant's subjective case may be undervalued. For the plea of guilty alone one would ordinarily expect a discount of between 20% and 25%. The "Fernando matters" should also have served to moderate the outcome. Yet the figures suggested a total discount of 25%. The inference, according to the applicant, was that one or other aspect had been undervalued.
41 The general principles which should guide the sentencing Judge in respect of the "Fernando" issues were identified by the Chief Justice in Fernando No 2 [2002] NSWCCA 28 in these words:
"[64] As is well established, it is a primary objective of sentencing for criminal offences that the community must be protected from the commission of crimes, by deterring both the particular offender and other possible offenders - referred to as personal and general deterrence respectively. In a case of the character now before the Court, by an offender with this record, the protection of the community requires a substantial period of imprisonment. It is, however, often the case that such considerations of deterrence are properly tempered by considerations of compassion which arise when the Court is presented with information about the personal circumstances which have led an individual into a life of crime.
[65] Such considerations are present in the case before the Court. The Respondent has a personal history of deprivation that is, regrettably, far too common amongst young people, particularly Aboriginal youth.
[66] The sentencing principles to be applied by a sentencing court apply in every case, irrespective of the membership of the particular offender of an ethnic or other group. Nevertheless, when imposing sentences courts must take into account, pursuant to those very principles of general application, all of the facts relevant to the circumstances of the offence and of the offender, including facts which may exist by reason of the person's membership of a particular group. (See eg Neal v The Queen (1982) 149 CLR 305 at 326.)
[67] Aborigines who commit crimes of violence are not accorded special treatment by the imposition of lighter sentences than would otherwise be appropriate having regard to all of the relevant considerations, including the subjective features of a particular case. An offender is not entitled to any special leniency by reason of his or her Aboriginality. The principle of equality before the law requires sentencing to occur without differentiation by reason of the offender's membership of any particular racial or ethnic group. Nevertheless, particular mitigating factors may feature more frequently in some such groups than they do in others. (See R v Fernando (1992) 76 A Crim R 58 at 62-63 as further explained in R v Hickey (NSWCCA, 27 September 1994; unreported); R v Stone (1995) 84 A Crim R 218 at 221-223; R v Ceissman [2001] NSWCCA 73 esp at [29]-[33]; R v Pitt [2001] NSWCCA 156 at [19]-[21].)"
42 The particular mitigating factors to which the Chief Justice was referring were explained by Wood J in Fernando (supra para 31): (at 62)
"While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio economic circumstances an environment that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the Courts of the endemic presence of alcohol within our Aboriginal communities and the great social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralizing factors had placed heavy stresses on them, re-enforcing the resort of alcohol and compounding its worst effects."
43 His Honour was plainly conscious of the Fernando issue, the subjective circumstances of Mr Williams and the early nature of the plea of guilty. I will put to one side for the moment whether his Honour undervalued these circumstances whilst I examine the second complaint.
44 The second complaint was that the starting point of ten years was excessive. The applicant pointed to a number of features of the crime. First, the malicious wounding occurred in the midst of the affray. It was a separate offence. However, there was the danger that because of the shared circumstances giving rise to each offence, there may be double counting. Reference was made to the judgment of McHugh and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610: (at 623)
"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common."
45 Secondly, the nature of the wound, according to the applicant, was not as serious as many matters under s33. It was a one centimetre cut requiring four stitches under local anaesthetic. It was not life threatening.
46 Thirdly, attention was drawn to the statistics from the Judicial Commission. They comprehended a significant number of cases (111). After pleas of guilty, all but 18 were sentenced to less than seven years. Of those cases, 102 were sentenced to a fixed term or a term with a non parole period. Of these, only 21 had a non parole period greater than the four years fixed in this case.
47 Fourthly, the applicant pointed to certain specific cases as providing insight into the appropriate range. Attention was drawn to R v Hayes [2001] NSWCCA 358, which was an appeal against the severity of a sentence under s33 of the Crimes Act 1900. There was a plea of guilty in that case for which the sentencing Judge allowed a discount of 10%, which was held not to have been in error. There were what the Appeal Court described as "horrendous objective factors and slight subjective matters" (para 34). The sentencing Judge described the attack by the offender in these terms:
"A short time later the prisoner came into her bedroom, closing the door behind him, and said to her, 'It looks like I'm going back to gaol'. Miss Garland said, 'Back where?', to which the prisoner replied, 'Back into gaol.' He then began to strike the victim repeatedly with the piece of wood she had observed him carrying. He hit her about the head and face, saying, 'I'm going to kill you, you dirty mother fucker. I'll go back to gaol for you.' Miss Garland attempted to protect herself by putting up her arms. She was struck hard to both arms, causing fractures to both arms and to her fingers. The prisoner continued to attack, striking the victim a number of times on her head and back. At one point the victim managed to grasp the weapon briefly, but the prisoner grabbed it back from her and continued to strike her hard, saying 'You'd better start praying now.' Miss Garland was bleeding heavily from the injuries she had sustained. She began spitting blood. After being hit hard on the temple region she saw blood spurting over the wall. She was struck a number of times.
The prisoner pulled a mosquito net over the victim, wrapping it around her so that she could not move. He continued to strike her repeatedly. She was in a great deal of pain. She was spitting blood, and she spat out a tooth which had been dislodged. She believed the prisoner intended to kill her. She endeavoured at one stage to pretend that she had lost consciousness. However, each time she showed signs of consciousness the prisoner resumed the attack upon her. Her best estimate is that the attack lasted for about twenty minutes, toward the end of which time she was slipping in and out of consciousness.
Eventually the prisoner desisted from the attack. The victim heard him moving about in the room before he left. He made no attempt to get help for the victim. She was discovered by the children about an hour and a half later. An ambulance conveyed her to hospital where she underwent more than nine hours of surgery."
48 Her Honour sentenced the offender to imprisonment for 11 years and 8 months, with a non parole period of 8 years and 9 months. The appeal, asserting that the sentence was excessive, was dismissed.
49 Finally, the applicant pointed to the sentences imposed upon co-offenders and specifically the sentence, adjusted on appeal, in respect of Mr Shepherd ([2003] NSWCCA 351). Mr Shepherd was the person who started the "brawl". Whilst there were differences between his case and that of Mr Williams, there was a need for some proportionality or relativity between sentences. Mr Shepherd was ultimately sentenced to two years imprisonment with a non parole period of one year.
50 The Crown, in its submissions, suggested that R v Hayes (supra para 41) was plainly a more serious case. One case does not establish a range. The statistics from the Judicial Commission demonstrate that a head sentence of 7-1/2 years was "within the range", as was the non parole period. Here the victims were vulnerable, operating a cafe at night on the outskirts of a remote country town (cf R v Goundar (2001) 127 A Crim R 331, para 36). The circumstances of Mr Shepherd were quite different. In that case the Judge specifically found that Mr Shepherd was not aware that Mr Williams had a knife. He was sentenced upon the basis that the wounding was occasioned by punching the proprietor of the cafe in the course of the affray. Mr Williams, on the other hand, stabbed that person with a knife. There was no absence of proportionality.
51 The offence of malicious wounding with intent is plainly a serious offence. The maximum penalty is 25 years imprisonment. The circumstances in which Mr Shepherd was sentenced were so different to those of Mr Williams that there was no obvious absence of proportionality. The case of Hayes does not establish a range, although it does underline the breadth of conduct comprehended by the section.
52 However, the practice of referring to specific sentences under the same section is neither helpful nor justified by authority (cf R v Morgan (1993) 70 A Crim R 368; R v Salameh (CCA (NSW), 9.6.94, unreported); R v Trevenna [2004] NSWCCA 43, per Barr J at 98 to 101). Other cases, at best, become part of a range of sentencing.
53 Here, having regard to the criminal record of Mr Williams, the violent nature of his crimes, and his apparent indifference to rehabilitation, the issues identified by the majority in Veen [No 2] (1988) 164 CLR 465 were matters of some importance. In that case, the High Court (Mason CJ, Brennan, Dawson and Toohey JJ) said this: (at 477)
"The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted . It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."
(emphasis added)
54 Nonetheless, giving due weight to such matters, the sentence imposed was, in my view, excessive. There was a single stab wound. It was superficial. It was not life threatening. It did not cause lasting physical damage. Mr Williams was separately punished for his part in the affray. The starting point of ten years was, in my view, too high. Error has been demonstrated.