Section 21A(2)(d)
19 His Honour correctly stated the applicant had a lengthy history of convictions. The applicant however, relied upon the comments of Howie J in R v Wickham to demonstrate error.
20 In R v Wickham, Howie J held:
[23] The second limitation is that found in s 21A(4), which provides:
The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
The effect of this provision is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy. It was the intention of Parliament to replicate the common law.
[24] This provision can operate in one of two ways. Firstly, it can impose a limitation on the use to be made of a particular factor not otherwise apparent in the provisions of s 21A(2) or (3). For example, s 21A(2)(d) provides that an aggravating feature is that, "the offender has a record of previous convictions". On its face, that provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious. Yet the common law rule is that a prior record does not have the effect of aggravating an offence, but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community; R v Shankley [2003] NSWCCA 253 at [31]. It has been held that s 21A(2)(d) should be read according to that common law principle; R v Johnson [2004] NSWCCA 76.
21 The context in which his Honour made reference to factor (2)(d) suggests error has occurred. However, the Remarks on Sentence, considered as a whole, do not indicate this had any material impact on the ultimate sentence.
Section 21A(2)(f), (g)
22 The applicant submitted his Honour found as an aggravating factor that the offence involved "gratuitous cruelty" (subsection (2)(f)) and that, on the facts before the court, this finding was "simply wrong". The applicant submitted gratuitous cruelty involved actions significantly more serious that two punches to the face, punches that caused pain but no noticeable or lasting damage or injury.
23 The Macquarie Dictionary defines gratuitous, inter alia, as "being without reason, cause or justification". The same dictionary defines cruelty, inter alia, as "causing, or marked by, great pain or distress." Clearly, the application of (2)(f) depends upon matters of fact and degree.
24 However his Honour did not determine the issue. He merely said, "One might reasonably argue that was the case".
25 The applicant also submitted his Honour found as an aggravating factor that there was substantial injury (subsection (2)(g)) caused by the offence, and in making this finding his Honour was "simply wrong". It was submitted that an assault such as this, although serious because it must have caused the victim considerable anxiety and in its potential for greater physical harm, could never be regarded as causing "substantial injury".
26 The Macquarie Dictionary defines "substantial" as, "of ample or considerable amount, quantity, size". The application of (2)(g) clearly raises questions of fact and degree as to which minds may differ.
27 His Honour did not find the injury was substantial. He merely said, "It depends upon one's interpretation of the word 'substantial'".
28 In Wickham, Howie J held:
[31] It is also, in my view, unsatisfactory for a court to refer to a factor of aggravation or mitigation without making a finding as to whether it existed or not, or without indicating that no finding was being made as to the presence or absence of that particular factor.
29 The sentencing judge's comments as to factors (2)(f) and (2)(g) are open to the criticism made by Howie J in Wickham. However, in my opinion, it would be unproductive to pursue the issue. His Honour was well aware of the nature of the punches and their effect as disclosed by the evidence. Section 21A(1)(c) of the Act directs the court, in determining the appropriate sentence for an offence, to take into account, "Any other objective or subjective factor that affects the relative seriousness of the offence". In my opinion, the nature and extent of the physical violence was an objective factor relevant to the seriousness of the offence, which factor his Honour was entitled to take into account in determining the appropriate sentence, whether it be an aggravating factor within a category specified in s 21A(2) or simply taken into account pursuant to s 21A(1)(c).
Section 21A(2)(l)
30 His Honour expressly found aggravating factor (2)(l) ("The victim was vulnerable") established. He explained what he meant in the context of this case as follows:
As I said, the victim was on a railway station. It is common for the Courts to see a modus operandi involving railway stations and persons on railway stations. The fact that that is a common matter is not something that I have taken into account in either aggravation or mitigation of the offence here but merely note the fact of what is regularly observed in these Courts. The fact that somebody is on a railway station, that they are on the railway station in circumstances where it is difficult for them to escape, with the drop onto the railway tracks on each side, is well known.
31 The applicant did not assert in his written submissions, or initially, orally, that his Honour had erred in finding that the victim was vulnerable. However in the course of argument such an assertion was made, the submission being that such a categorisation was confined to victims of the type referred in the examples given in subsection (2)(l) - see R v Williams [2005] NSWCCA 99 per Buddin J at [41].
32 The matters which caused his Honour to categorise the victim as vulnerable were objective factors which affected the relative seriousness of the offence, and which his Honour was entitled to take into account pursuant to s 21A(1)(c) if those matters were not appropriately categorised as within s 21A(2)(l). Accordingly, it is unnecessary and unproductive to seek to determine the precise meaning and extent of the word "vulnerable" in s 21A(2)(l).