ROSS v R

Judgment 1McClellan CJ at CL: I agree with Price J. 2PRICE J: David Ross seeks leave to appeal against the sentence imposed upon him on 3 March 2011 in the District Court. He had entered a plea of guilty to a charge of recklessly inflicting grievous bodily harm to Kenneth Wheatley on 14 October 2009 contrary to s 35(2) Crimes Act 1900. After allowing a 10 per cent discount for the plea of guilty, the sentencing judge sentenced the applicant to a term of imprisonment of 4 years 6 months consisting of a non-parole period of 3 years 4 months with a balance of term of 1 year 2 months. 3The maximum penalty for an offence contrary to s 35(2) Crimes Act is imprisonment for 10 years. A standard non-parole period of 4 years imprisonment has been prescribed. 4The facts of the offence may be stated briefly. The applicant and Mr Wheatley, lived close by each other and had a disagreement over a kitten and a dog. During the disagreement, the applicant picked up a piece of wood about a metre long and hit Mr Wheatley, who had turned around to walk to his house, with the piece of wood on the left side of the back. As Mr Wheatley turned around, he was struck again with the piece of wood to the elbow. The applicant swung the piece of wood once more, but Mr Wheatley grabbed hold of it, a struggle ensued and the applicant was pushed away. As a result of the blow to the back, Mr Wheatley suffered internal injuries. He spent about a month in hospital and his spleen was removed. The operation to remove the spleen resulted in substantial scarring on the stomach area that caused discomfort. The sentencing judge observed (ROS p 7): "The discomfort from the scarring is probably, I am sure, of minor consequence compared to the other ongoing difficulty of Mr Wheatley having to live for the rest of his life without a spleen and the consequences for him of that. I note the victim impact statement, that there is still some ongoing anxiety and trauma associated." 5The applicant was 45 years old at the time of the commission of the offence. A Probation and Parole Pre-Sentence Report was before the sentencing judge that revealed that the applicant had a lengthy history of contact with the Probation and Parole Service dating back to 1981. He had used cannabis for some 30 years and commenced using heroin at the age of 22. He had been on the methadone program since 1996 and claimed to have not used heroin for the past 8 years. Drug Health Services confirmed that he was a compliant methadone patient. The applicant had been in receipt of sickness benefits since 2006. 6The applicant's prior criminal history as an adult disclosed offences involving dishonesty and prohibited drugs, however, in May 2002 he was sentenced to imprisonment for common assault and two counts of contravening an apprehended domestic violence order. 7A report dated 3 October 2010 from Mr W John Taylor, clinical forensic psychologist, was tendered. Mr Taylor noted that the applicant continued to have a problem with heroin abuse. Although the applicant had been on the methadone program, he had used heroin about once a month. Mr Taylor considered that the results of actuarial analysis indicated that the applicant had "a moderate to high-moderate risk of general recidivism and a moderate risk of violent recidivism." 8The sentencing judge accepted that any previous convictions that involved matters of violence were some time ago and there were "no matters of a serious or worrying personal violence nature ... which would necessarily aggravate the seriousness of this matter" (ROS p 8). Her Honour found that the offence was not pre-meditated and, notwithstanding that a substantial weapon was used, it was not a matter "where one would necessarily think that a single blow would result in the substantial injuries..." (ROS p 9). Her Honour was unable to find that the applicant had expressed remorse. As to prospects of rehabilitation, her Honour observed that the applicant did not appear to be properly motivated to address his substance abuse problem. 9The sentencing judge determined that the objective seriousness of the offence was at the middle range. Her Honour said that there was nothing upon which she could find special circumstances. The appeal 10The sole ground of appeal is that: "Her Honour the Sentencing Judge erred in her approach to Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and a lesser sentence is warranted in law." 11The sentence was imposed prior to the judgment of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. The focus of the applicant's complaint of error are her Honour's remarks on sentence that (ROS p 9): "This particular offence...carries with it a standard non-parole period. Way's case directs me how I must treat that matter and I will shortly assess the objective seriousness of the offence but in doing so the Court must take into account whether there are reasons for not imposing the standard non-parole period and answering that question by considering firstly 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 in mid-range of seriousness for an offence of this kind. The Court must also take into account the circumstances of aggravation and mitigation as set out in the various subsections of s 21A. Whatever the case in that regard, the considerations referred to may similarly provide a reason for departure from the standard non-parole period." 12In making those remarks, the sentencing judge was endeavouring to follow the approach mandated in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, before the judgment in Muldrock, where the High Court said at [25]: "The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the mid range of objective seriousness." 13The Crown accepts that those passages of her Honour's remarks on sentence do not comply with the judgment of the High Court in Muldrock. 14The applicant contends that the consequence of the error was that too much emphasis was placed by the sentencing judge on the standard non-parole period, rather than it being used as a guide or check, along with the maximum penalty. The applicant points out that the non-parole period imposed was 83 per cent of the standard non-parole period and argues that there was no warrant for a sentence that fell within that range. Although accepting that the injuries to Mr Wheatley were serious, the applicant submits that they were occasioned by a single (one handed) blow to the back with a blunt piece of wood that did not immediately disable Mr Wheatley. Furthermore, her Honour recognised that the injuries occasioned were not necessarily to have been expected from a single blow of the type in the present case. The applicant argues that his record was not such as to call for any additional element of specific deterrence. The sentence is said to be too high and a lesser sentence is warranted. 15The Crown submits that although the sentencing judge's approach is now at odds with Muldrock, her conclusions with respect to the objective seriousness of the offence were open to her, as was the sentence imposed and no lesser sentence is warranted. Decision 16Error by a sentencing judge in following the decision in Way before Muldrock will not necessarily lead to the intervention of this court: Butler v R [2012] NSWCCA 23. It is necessary to consider whether "some other sentence...is warranted in law and should have been passed": s 6(3) Criminal Appeal Act 1912. 17Both counsel referred in written submissions to a number of cases dealing with sentences imposed for offences contrary to s 35(2) Crimes Act and submissions were made about matters of distinction. Whilst that material is useful, each case must be considered in light of its own facts. No two cases are the same and there is no single correct sentence: Pearce v R [1998] HCA 57; (1998) 194 CLR 610. 18The applicant drew attention to Judicial Commission sentencing statistics which reveal that of the 76 offenders considered in the higher courts since the introduction of the standard non-parole period for offences contrary to s 35(2), only 15 per cent of offenders received a total term of more than 4 years. Only 50 per cent of all offenders (including those that pleaded not guilty) received a total term of more than 3 years. Furthermore, of the 66 offenders who received a non-consecutive non-parole period, only 3 offenders received a non-parole period in excess of 3 years. 73 per cent of offenders received a sentence of 2 years imprisonment or less. The applicant submitted that there was nothing about the present offence that would place it towards the top of the range established by the sentencing statistics. 19Although useful as a guide to establish sentencing practice, the limited use that might be made of Judicial Commission statistics is well recognised. As Spigelman CJ said in R v Lao [2003] NSWCCA 315 at [33]: "They reflect what was regarded as appropriate in the wide variety of circumstances in the cases reported in those statistics." 20The sentencing judge correctly acknowledged that the assessment of the objective seriousness of an offence under s 35(2) will significantly depend upon the harm suffered by the victim: R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94; R v Thawer [2009] NSWCCA 158. Her Honour recognised that other factors such as the nature of the attack and the surrounding circumstances were also relevant to the objective seriousness of the offence: McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439. The nature of the injuries that Mr Wheatley, who was 54 years old, suffered was indeed serious. He was hospitalised for about a month and suffered the loss of his spleen, permanent operative scarring, continuing pain and psychological difficulties. The offence was not pre-meditated, but regrettably arose from a trivial argument. 21The applicant accepts that the injuries were serious, but submits they were not so serious as to make the offence a middle of the range offence when the act causing the injury was a single one-handed blow to the torso. This submission appears to confuse the seriousness of the injury with the nature of the attack upon the victim. In any event, I do not think that the applicant is assisted by the manner in which he injured Mr Wheatley. When Mr Wheatley had turned around to walk to his house, the applicant picked up the piece of wood and struck Mr Wheatley with it on the left side of the back. The applicant continued the attack, striking Mr Wheatley once more with the piece of wood to the elbow and unsuccessfully attempted to strike him again. The piece of wood was about a metre long. 22Nevertheless, I consider that the seriousness of the injuries and the manner in which they were inflicted do not justify a sentence of imprisonment with an undiscounted starting point of 5 years. The sentencing judge neither referred to the standard non-parole period as being simply a guideline or yardstick, nor that it did not directly apply as the applicant had pleaded guilty. In my respectful opinion, the sentencing judge placed too much significance on the standard non-parole period resulting in a sentence that is not warranted in law and some other sentence should have been passed. The sentence imposed should be quashed and the applicant re-sentenced. 23No additional material relevant to sentencing has been filed on behalf of the applicant. He was allowed a discount of 10 per cent for his plea of guilty. It has not been submitted that that was an inappropriate discount. Furthermore, the applicant does not contend that the sentencing judge should have found special circumstances. 24The maximum penalty for the offence is 10 years imprisonment and the standard non-parole period is 4 years. Bearing in mind these two guideposts, when the objective seriousness of the criminality involved and the subjective features of the applicant are considered and allowing a 10 per cent discount for the plea, the applicant should be sentenced to a term of imprisonment of 3 years 8 months which consists of a non-parole period of 2 years 9 months and a balance of term of 11 months. I do not find special circumstances. 25Accordingly, the orders that I propose are: