Rushby v R

the application for leave to appeal 20 The only ground for the application for leave to appeal was that the sentences (in total) are manifestly excessive. They were said to be so in the light of: "(a) the objective seriousness of the offences, (b) the applicant's plea of guilty at the earliest opportunity, (c) the fact that he had served 8 months of his sentence in strict protection (d) his subjective case, in particular his chronic depression, (e) his prospects of rehabilitation." 21 Reliance was placed upon the circumstance that the two offences arose from essentially the same incident, the assault occurring immediately before and after the wounding and not resulting in any substantial injury. Therefore, it was argued, it was inappropriate to accumulate the two sentences. Alternatively, if the sentences were to be wholly or partially accumulated, it was argued, then an adjustment should have been made to the length of each sentence to take into account totality. Reference was made to Pearce v The Queen [1988] HCA 57; 194 CLR 610; Johnson v The Queen [2004] HCA 15; 78 ALJR 616. 22 Counsel pointed out that, when the 15% discount for the utilitarian value of the plea of guilty at the earliest opportunity is factored in, the starting point of the effective total sentence is very close to the maximum penalty of seven years provided for the offence of malicious wounding. In fact, when 15% is factored in, the starting point for the total sentence is a little more than seven and a half years - in excess of that statutory maximum. However, that is not the correct approach. It is not correct to set the total of the sentences imposed in respect of the offence against the statutory maximum sentence prescribed in respect of one only of those offences. The head sentence imposed in respect of the offence of malicious wounding, after the 15% discount, was five years; that means that the starting point was about five years and nine and a half months. 23 In the context of this submission (as it was put), counsel also argued that the malicious wounding was not in the worst category of cases of its kind and did not call for a penalty so close to the maximum available. That submission loses some, but not all, of its force when the correct approach, as I have identified it above, is taken. 24 Counsel then argued that insufficient attention was paid to the part played by the applicant's depressive condition, complicated by his substance abuse, upon the assessment of the applicant's culpability. 25 This, if so, is hardly surprising; the applicant's case was not put to her Honour on that basis. 26 The circumstances, and the manner, in which mental or emotional disorder may affect the sentencing process has been the subject of a number of decisions of this Court: I referred to them in R v Fahda [1999] NSWCCA 267, unreported, 31 August 1999. In R v Engert (1995) 84 A Crim R 67, Gleeson CJ pointed out that relevant sentencing considerations such as mental illness might permit a lesser emphasis on one sentencing objective (for example, general deterrence), but dictate a greater emphasis in respect of another sentencing objective (for example, the protection of the public). 27 In my opinion the applicant's mental condition was not such that it should have had a significant bearing on the sentencing decision. Obviously, this was a case in which general deterrence was important, and its importance was not reduced by the applicant's mental condition. Nor did it, in my opinion, significantly reduce the applicant's culpability for the offences. 28 Finally, reference was made to statistics provided by the Judicial Commission. These have to be treated with the usual caution, but also with the additional caution that the applicant was being sentenced for two offences committed in conjunction with one another. The statistics quoted are statistics relevant to offences of malicious wounding, and offences of assault occasioning actual bodily harm, but not of the two dealt with in conjunction. 29 Even with that in mind, the statistics are persuasive that these sentences - or the aggregate sentence - were very high for offences of the character here in question. 30 Let it be recognised that the applicant had a lengthy criminal history; as her Honour noted, while there were a number of offences of assault, there was nothing more serious than common assault. That is not to underplay the seriousness of the record. The seriousness of the malicious wounding must also be examined. It is true that this Court is familiar with instances of wounding which are more serious than the wound occasioned to Mr Kennedy. (As to this, there was no medical evidence tendered.) But it is to be remembered that an offence resulting in a more serious wounding than that suffered by Mr Kennedy may also have resulted in a charge more serious than one brought under s35(1)(a). 31 Even having all of that in mind, I have been persuaded that the total sentence was above the top of the available range. 32 While questions of concurrence or accumulation are peculiarly a discretionary matter for the sentencing judge, it is common, where two offences are committed as part of the same incident, for concurrent sentences to be imposed: see R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66. I do not find that her Honour erred in accumulating the sentences; but I am of the view that the effect of the accumulation was to produce a total sentence that was manifestly excessive in the circumstances, and exceeded that which properly represented the totality of the applicant's criminality. If, as she was fully entitled to do, her Honour thought that the offence called for or warranted some or total accumulation, then that, in turn, called for some adjustment of the sentences imposed in respect of the individual offences. 33 I have come to the view that the total accumulation of the sentences resulted in a disproportionate aggregate sentence. The simplest course to achieve the correct result is to adjust the commencement date of the second sentence, and make the two sentences concurrent. I would therefore re-sentence, but only by adjusting the commencement date of the sentence imposed in relation to the malicious wounding charge, so as to make both sentences concurrent, commencing on 17 April 2004. 34 Against the possibility that the Court might re-sentence the applicant, evidence was received in the form of affidavits affirmed by the applicant's solicitor, and sworn by himself. 35 These show that the applicant has been segregated for his own protection since his incarceration. He has been receiving some psychiatric treatment, including medication, and two consultations with a psychiatrist. His protective custody status limits his access to courses or programmes otherwise available to him. He has employment in the prison in which he is presently held. He has had no infringements of prison rules since sentencing. 36 This information generally confirms what was before the sentencing judge, but does not make any dramatic or relevant alteration in the relevant considerations. I adhere to the orders I earlier proposed. 37 The orders I propose are: