• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Cases Cited: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 House v The King (1936) 55 CLR 499 R v Duffy (2014) 297 FLR 359; [2014] ACTCA 53 Whelan v The Queen (2012) 228 A Crim R 1; [2012] NSWCCA 147

Parties: Jordan Sharma (Appellant) The Queen (Respondent)

Representation: Counsel Mr K Archer (Appellant) Mr J White SC (Respondent)

Solicitors Sharman Robertson Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 35 of 2016

Decision under appeal: Court: Supreme Court of the ACT Before: Elkaim J Date of Decision: 22 July 2016 Case Title: R v Sharma Citation: [2016] ACTSC 180 THE COURT:

1. This is a severity appeal.

2. An appeal to the Court of Appeal against a sentence imposed by a single judge lies under s 37E(2)(a) of the Supreme Court Act 1933 (ACT) (‘Supreme Court Act'). On an appeal against sentence, whether by the Crown or an offender, the Court's wide powers include the power to increase or decrease the sentence and to substitute a different sentence, see s 37O(7) of the Supreme Court Act. As the Court of Appeal said in R v Duffy (2014) 297 FLR 359; [2014] ACTCA 53 at [53]:

On such an appeal, the Court of Appeal may intervene only if it is satisfied that there has been an error of the type referred to in House v The King (1936) 55 CLR 499. There must be a specific error of fact or law, or an implicit error that is discernible because the sentence is so plainly wrong (so manifestly excessive or manifestly inadequate or outside the range of available sentences or dramatically inappropriate) as to compel the conclusion that there has been an error in the exercise of the sentencing discretion, although no specific error can be identified.

3. The appellant was, on 22 July 2016, convicted of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) (‘Crimes Act’).

4. The maximum penalty for the offence is 13 years imprisonment.

5. The sentence appealed from was two years and three months, discounted from three years for the plea of guilty with 18 months being suspended after the appellant had served nine months. The offender was in custody from 22 July 2016 to 26 October 2016 when he was granted bail pending this appeal.

6. When making sentencing submissions to the sentencing judge, counsel for the appellant submitted that any sentence imposed be served by way of an intensive corrections order as described by div 5.4.2 of the Crimes (Sentencing) Act 2005 (ACT) (‘Sentencing Act’).

7. The appellant submitted that the sentencing judge had made two key errors. First his Honour gave inadequate reasons for his decision to direct that the sentence be served by way of a partially suspended sentence that included nine months full-time imprisonment. Secondly, the sentence, particularly the requirement to serve nine months by way of full-time imprisonment was manifestly excessive.

Factual Background

8. At about 2.47 am on 1 January 2016, Trent Gregory and Todd Seears were standing outside the Supa 24 convenience store at 2 Mort Street, Braddon. The two men were arguing. The appellant was standing to the side of them. While they were in the course of their argument Mr Gregory stood with his hands in his pockets. The appellant then clenched his fists, adopted a fighting stance and threw a punch with his right fist. The punch connected with the right side of Mr Gregory's jaw. Mr Gregory did not see the punch coming.

9. The punch knocked Mr Gregory unconscious and he fell to the ground, hitting the left side of his head.

10. After Mr Gregory fell to the ground the offender and Mr Seears left the scene.

11. The event was caught on closed-circuit television. Police released the footage to media and asked for help. Numerous reports were later made to Crime Stoppers identifying the offender.

12. At 3.30 am on 1 January 2016, Mr Gregory went to the Canberra Hospital emergency department for treatment. He was found to have suffered a fracture of the angle of the right side of his mandible or lower jawbone.

13. On 2 January 2016, Mr Gregory underwent surgery when four screws and a titanium plate were inserted into his jaw. His jaw was wired closed for two weeks thereafter.

14. Before the sentencing judge was a victim impact statement from Mr Gregory. He said that after the offence he had had a lump on the back of his head and bruises over his body and to his left hip.

15. He said that during the two weeks when his mouth was wired up, he could not open his mouth and he could not eat and he could not clean his teeth. He had had difficulty also drinking fluids.

16. He lost about 10 kilograms from not eating. Two weeks after his surgery he could eat a pureed diet.

17. He had suffered intense pain on the removal of metal hooks which had held his mouth closed.

18. His medical expenses were met by Medicare and his only out-of-pocket expenses consisted of $100 for medication.

19. According to a second victim impact statement, he had to take two to three months off work. He had limited sick leave and he ran out of sick leave. He moved in with his grandmother when he could no longer afford to stay in the group house he had been living in. He became depressed and he now finds that he cannot visit Civic.

20. It must be borne in mind when drawing attention to the contents of victim impact statements that they are not usually the subject of cross-examination. Had he chosen to do so, the appellant's counsel could have cross-examined the victim under s 53(3) of the Sentencing Act subject to notice. In any event it is clear at least from the agreed facts that the injuries were severe.

21. At 2.25 pm on 8 January 2016, eight days after the offence, the appellant went to the City police station where he identified himself, was arrested and cautioned. He told police he was the person who'd thrown the punch. He was then charged.

22. At the time of the offending the appellant had no criminal history.

23. Six months after the offence he wrote a letter of apology to Mr Gregory.

24. A letter to the sentencing judge from the appellant's mother suggested that the offending was out of character for him. Other references before his Honour were consistent with that view.

25. At the time of the offence the appellant was aged 20. He had been enrolled in actuarial studies at the ANU and had done well in his first year. He had part-time employment. He had been a churchgoer and a charity worker.

26. After the attack there was considerable social media commentary denigrating the offender. Although this was put to his Honour as extra-curial punishment, his Honour did not accept it as reflecting on sentence.

The Appellant’s Submissions

27. Before this court the appellant conceded that he must show error to succeed in the way in which it was described in House v The King (1936) 55 CLR 499, and also in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54.

28. The appellant submits that error can be shown in that there was error in the sentencing discretion, or it can be inferred from the result, one of which was unreasonable or unjust because the sentence was manifestly excessive: see Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [61]. The appellant submitted first that the sentencing judge had not appreciated the dramatic change to the sentencing landscape under the new intensive correction orders regime, so had failed to place and consider it in the hierarchy of sentencing outcomes. In particular it was said that he had not recognised the intensive correction orders as a sentence of imprisonment or considered its punitive or deterrent potential.

29. In at paragraph [36] of his judgment, his Honour referred to intensive correction orders and said that he did not think an intensive corrections order was appropriate. I will return in a moment to consider further his Honour’s reasoning.

30. It was submitted that the way in which his Honour expressed his views about the intensive correction orders showed that his Honour had not understood that intensive correction orders are in fact a sentence of imprisonment and that his Honour did not understand the fundamental change in the sentencing landscape entailed by the intensive correction orders regime.

31. It was submitted that his Honour should have considered the extent to which specific conditions could have been imposed with an intensive corrections order and the purposes of the Sentencing Act as shown in s 7.

32. Although the legislation does not in terms require a sentencing judge to say why he or she refuses an intensive corrections order, it was submitted that ss 10(2) and 10(4) of the Sentencing Act suggested his Honour should have said why. Otherwise it is not possible, it was submitted, for an Appeal Court to ascertain whether a decision not to allow an intensive corrections order was wrong or not.

33. The appellant also referred the court to three decisions of this court, for comparable incidents and injuries where all three were given sentences which did not require full time custody. These, it was submitted, showed manifest excess.

Crown Submissions

34. The Crown submitted that no error had been shown by not employing the intensive correction orders regime. The appellant’s counsel had conceded that a term of imprisonment was an appropriate outcome.

35. The Crown submitted that his Honour did not have any obligation to find the intent of the legislature and apply it, submitted the Crown. The plain words were there and they permitted full time imprisonment. His Honour did in fact consider an intensive corrections order but rejected the submission that he should make one.

36. In any event, submitted the Crown, the sentence was not excessive. His Honour reduced the sentence appropriately for the plea and ordered a sentence where the appellant will serve 33 percent of the head sentence.

37. The Crown submitted that his Honour was correct to see the contrition as of limited value because the letter of apology was sent to the victim almost six months after the event.

Consideration

38. His Honour faced a difficult sentencing exercise. The most significant issues in the appellant’s favour being his youth and his prior good character. The conduct was quite out of character and there is nothing to suggest it will recur. He was contrite, but his Honour found that his contrition was qualified because the written apology was late in coming.

39. Part 3.2 of the Sentencing Act deals with sentences of imprisonment. A court may sentence an offender to imprisonment, for all or part of the sentence, if satisfied that no other penalty is appropriate: see Sentencing Act s 10(2). Prima facie, a sentence of imprisonment will be served by full time detention: Sentencing Act s 10(3). However, the sentencing court may order that it be served by an intensive correction order: Sentencing Act s 11. There is a general discretion in relation to making an intensive corrections order, if the sentence is no longer than two years imprisonment. For sentences of between two and four years imprisonment, an intensive corrections order may be ordered “only if the court considers it is appropriate to do so” having regard to victim and community harm, offender risk and offender culpability: see Sentencing Act s 11(3). Another alternative to full time imprisonment is a sentence that is fully or partially suspended: see Sentencing Act s 12. Under Pt 3.2 of the Sentencing Act, the court’s first task is to determine whether the only appropriate penalty is a sentence of imprisonment. Next, the court determines the manner in which the sentence of imprisonment should be served.

40. For sentences of between two and four years imprisonment, a sentencing court does not have a general discretion to order that the sentence be served by way of intensive correction orders. The discretion must be exercised after the court has considered the specified factors, as well as any other factor that may inform whether an intensive correction order is appropriate. This approach reflects the position of intensive correction orders in the sentencing hierarchy. In some cases it may be appropriate to serve a less severe sentence of imprisonment, one that is less than two years or in some circumstances less than four years.

41. It was, accordingly, open to his Honour to order that the sentence be served by an intensive corrections order.

42. An intensive corrections order is intended as a form of punishment and, as the applicant submitted, was intended, when introduced, to see offenders, who might otherwise have served a sentence by periodic detention, receive a community based order.

43. His Honour did consider and then reject the proposition that the sentence should be served by intensive correction orders. He correctly found, first, a term of imprisonment was appropriate and then set the term.

44. He then considered how it should be served, rejecting the appellant's submission for an intensive corrections order. The term imposed was appropriate and, as it involved suspension after nine months full-time imprisonment, it was, in our view, relatively lenient.

45. In the course of his reasons, his Honour discussed the factors relevant to s 11(3) of the Sentencing Act such as the harm to the victim.

46. His Honour did explain why he considered the sentence should not be served by intensive correction order. At paragraphs [33]–[35] of his judgment, he considered society's abhorrence to such attacks, the need to emphasise to young people the inappropriateness of consuming large amounts of alcohol and drugs, and that in cases such as this one, a very high degree of deterrence, meaning general deterrence, is necessary.

47. It is well recognised in other jurisdictions an intensive corrections order contains a degree of leniency: see Whelan v The Queen (2012) 228 A Crim R 1; [2012] NSWCCA 147 at [120] per Schmidt J (with Allsop P and Davies J agreeing). His Honour in this case was explaining why he did not think that leniency was appropriate.

Consideration – Manifestly Excessive Sentence

48. The fact that other cases have not resulted in full-time imprisonment does not necessarily point to error, particularly if some cases were decided before the maximum penalty was increased from 10 years to 13 years imprisonment. The maximum penalty is a critical sentencing parameter.

49. The sentencing database statistics that were provided do not support the submission that the sentence imposed in this case was inconsistent with sentences imposed in comparable cases. It is recognised that the statistics can provide no more than a point of comparison and are of limited use in determining the available sentencing range.

50. We are not persuaded an error is made out and we dismiss the appeal.

51. We confirm the sentence imposed by the sentencing judge, except that the sentence will commence on 19 November 2016 and end on 18 February 2019, with the sentence suspended from 18 August 2017 until the end of the balance of the term, on 18 February 2019.

I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: