SHAW, Jason Robert v R

Court of Criminal Appeal (NSW)|2008-02-06|Before: McClellan CJ, Grove J, Fullerton J, Underwood J, Clellan CJ

The applicant's criminal record 20 The applicant's history of offending against the law in New South Wales, Western Australia and Victoria was before the sentencing judge. It included various breaches of restraining orders and two charges of assault, the most recent of which involved Ms Pahl, and in respect of which he was placed on a bond to be of good behaviour for 12 months. 21 While it would appear that these incidents did not involve actual violence, the applicant's criminal record was ample evidence of his propensity to harassment in domestic situations and his failure to manage his anger in the past. These observations were made by his Honour in the context of considering and contrasting the high regard in which he was held by others as reflected in the various testimonials that were tendered on his behalf. His Honour also made reference to his past offending in a domestic context when coming to the view that a term of imprisonment was the only appropriate sentencing outcome. Later in his reasons for sentence, his Honour made it clear that he proposed to take this same conduct into account when considering whether leniency could be afforded the applicant in circumstances where he had not previously been sentenced to a period of imprisonment, but that he would ignore it when assessing the objective seriousness of the offending for which the applicant was to be sentenced. There is no error in that approach. It is consistent with the use that might legitimately be made of an offender's prior record (see R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566). Accordingly, the submission that his Honour punished the applicant for an apparent propensity to harassment in domestic situations, contrary to Veen v The Queen (No 2) (1988) 164 CLR 465, must be rejected.

28 Ms Pahl did not give evidence in the sentence proceedings. She did, however, swear an affidavit upon which the applicant seeks to rely should this Court uphold the appeal and re-sentence.

Objective seriousness and proportionality 29 On any view of the evidence, it would appear that the offences were committed after the applicant, having been denied a visit to his son on his son's birthday three days earlier, was refused entry to Ms Ryan's home. Although his Honour did not say so expressly, given the concession by the Crown that the offence was neither planned nor premeditated, he could not have proceeded to sentence other than on the basis that the applicant did not go to Ms Ryan's home with the intention of breaking his way in so as to see his son, or of assaulting Ms Pahl if she refused him access to his son. Despite the absence of premeditation, his Honour regarded the offending as "high in the level of seriousness under the section" because of the fact that children were in the house and that actual bodily harm was inflicted. His Honour considered that this would warrant what he described as "the starting point for any sentence in an area of 10 years". 30 The applicant conceded that the offence was objectively serious but submitted that the sentence was disproportionate to the gravity of the offending. The applicant also submitted that his Honour erred in his application of Div 1A of Part IV of the Crimes (Sentencing Procedure) Act (ss 54A - 54D) in that he did not undertake in any meaningful way the task identified in R v Way [2004] NSWCCA 131; 60 NSWLR 168 and R v AJP [2004] NSWCCA 434; 150 A Crim R 575. This error in approach is said to have resulted in a sentence that was excessive. 31 The common law principle of proportionality requires that a sentence should not exceed what is proportionate to the gravity of the crime having regard to the objective circumstances (see Hoare v The Queen (1989) 167 CLR 348 at 354). In McNaughton, the Chief Justice noted that in a line of cases commencing with R v Dodd (1991) 57 A Crim R 349 at 354, referred to and affirmed by a five judge bench in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at [156]-[158], the proportionality principle is also held to apply so that a sentence should not be less than that which the objective gravity of the offence requires. 32 In this case, his Honour was obliged to assess the objective seriousness of the offending not simply in order to arrive at a sentence proportionate to the gravity of the offending but also because the sentence for a breach of s 112(2) of the Crimes Act, which attracts a standard non-parole period of five years, fell to be determined by reference to s 54B of the Crimes (Sentencing Procedure) Act in the way in which this Court has stipulated in R v Way. In the case of a plea of guilty, it is appropriate for a sentencing judge to consider where the particular offence lies on the range of objective seriousness (see R v Porteous [2005] NSWCCA 115 at [22]; R v Tory [2006] NSWCCA 18 at [14]) although the fact that a plea of guilty was entered is irrelevant to the determination of the place occupied by the offence on the range of objective seriousness (see R v Rice [2004] NSWCCA 384; 150 A Crim R 37 at 56). 33 Not only did his Honour fail to make any reference at all to what might constitute offending in the middle of the range of objective seriousness for offences of this kind such as would enable a meaningful comparison to be made between the applicant's offending and that for which the standard non-parole period is prescribed before taking into account subjective matters, I am not satisfied that his Honour's twofold reason for categorising the offending as "high in the level of seriousness under the section" was justified. Being an element of the offence, the infliction of actual bodily harm was not available as a feature of aggravation (see s 21A(2) of the Crimes (Sentencing Procedure) Act). In addition, it is unclear whether the fact that young children were in the house at the time of the offence was regarded by his Honour as a matter of aggravation under s 21A(2) of the Crimes (Sentencing Procedure) Act or otherwise. In another part of the judgment his Honour also regarded the applicant's violence towards his partner as constituting a breach of trust which his Honour regarded as an aggravating factor. Matters of aggravation 34 Neither on sentence nor on the appeal did the Crown submit that the presence of the children per se was an aggravating feature. On the appeal, however, the Crown did seek to rely upon s 21A(2)(g) and (l) as aggravating features. 35 As to s 21A(2)(g), the Crown submitted that the injury, emotional harm and damage caused by the offence was substantial. His Honour made no such finding. Moreover, in the absence of evidence bearing upon the issue of substantial harm independent of the elements of the offence, I do not regard it as matter open to be considered as aggravating the offence. 36 As to s 21A(2)(l), the Crown submitted that since the offence was an offence of domestic violence and Ms Pahl was the female partner she was in a position of vulnerability relative to the applicant. In addition, the Crown submitted that he had breached a position of trust relative to her as provided for in s 21A(2)(k). While as a matter of principle these are frequently matters to which particular emphasis is given in the context of sentencing for domestic violence offences (see R v Glen, and R v Devine, Supreme Court of Tasmania, Underwood J, 5 July 1993 unreported, both cases referred to by Johnson J in Hamid) these matters do not in my view elevate the applicant's offending to a level which is objectively high. Were the applicant to have planned a forced entry, armed himself for that purpose, and then used the tool as a weapon to inflict injury, the offence would properly be categorized in that way (see for example R v Davies [2004] NSWCCA 319 at [34]). While his Honour was justifiably critical of the applicant going to Ms Ryan's home at all when he was well affected by alcohol, and equally as critical of his loss of control when access to his son was refused, I am not satisfied that these features are such as to appoint the offence as within "a high level of seriousness". That said, the fact that the applicant went to a family home where his partner and son were temporarily residing, forced entry by the use of a tool that was not abandoned upon entry even if it was not wielded as a weapon, and then attacked the mother of his son in the presence of the child and other young children, were properly matters to be taken into account when assessing the level of objective seriousness. 37 In my view, the offending, while objectively serious, is more accurately described as in the middle of the range of offending of its kind. I note that this was the position articulated by the Crown on sentence. I have come to that view by reference to the schedule of cases Mr Haesler SC attached to his submissions and by the observations of Johnson J in Lovell v R; Dominey v R [2006] NSWCCA 222 where his Honour said: "[63] The type of conduct which may constitute a s.112(2) offence encompasses a wide range of activities. Examples may be seen in a number of decisions of this Court. There have been cases where s.112(2) offences have involved the breaking and entry by an offender or offenders into premises and the commission of a serious indictable offence of violence against a victim following an incident which has provoked such a response. These s.112(2) offences have involved acts motivated by revenge or retribution or by a desire to teach the victim a lesson or to warn him off. An act of retaliation by an offender against a person who had assaulted the offender's father was characterised as being significantly below the mid-range of objective seriousness in R v Price [2005] NSWCCA 285 at paragraph 23. Where an offender broke and entered premises and then assaulted the victim whom the offender believed had earlier assaulted the offender's daughter, it was accepted that the offence lay at the lower end of the range of objective seriousness: R v Millar [2005] NSWCCA 202 at paragraph 43. Where two offenders broke and entered premises and assaulted persons in the belief that one of the victims had made an improper approach to their 14-year old sister, it was concluded that the conduct was significantly less than the middle of the range of objective seriousness: R v Tory at paragraph 37. [64] There are further examples of s.112(2) offences involving offences of dishonesty. In R v Huynh [2005] NSWCCA 220, this Court upheld a finding that an offence lay towards the middle of the range of gravity of offences of this kind in circumstances where the offender, in company, smashed the door of domestic premises and collected a large amount of personal property, including jewellery, watches and precious stones (paragraphs 26-27). The nature of the circumstances of aggravation defined in s.105A Crimes Act 1900 as applied to the individual case may be relevant to characterisation of the particular offence on the range of objective seriousness: R v Huynh at paragraphs 29-30. In R v Ceissman [2004] NSWCCA 466, a s.112(2) offence committed upon bank premises entered with the use of a sledgehammer and where $171,980.00 was stolen, was characterised as being above the mid-range of objective seriousness (paragraphs 5, 19). In circumstances where a stranger broke and entered residential premises occupied by older persons who were then tied up and with property being stolen from the premises, it was found that the offence lay above the mid-range of objective seriousness for an offence of this type: R v Porteous at paragraph 47. [65] These cases are referred to for illustrative purposes and not for the purpose of defining a range for s.112(2) offences. They do, however, throw light on factors which may bear upon an assessment of objective seriousness in the particular circumstances of s.112(2) offences."

38 Irrespective of whether his Honour's overstatement of the objective seriousness of the offence offends the principle of proportionality, his failure to approach the sentence in accordance with the approach mandated by this Court in R v Way is an error that might of itself have warranted the intervention of this Court subject, of course, to the operation of s 6(3) of the Criminal Appeal Act 1912 (see Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 and R v Johnson [2005] NSWCCA 186). However, because of what I regard as a clear error in his Honour's approach to the discount for the plea of guilty in the ultimate calculation of sentence, an error which does require this Court to re-sentence, it is not necessary to consider whether his Honour's overstatement of the objective seriousness of the offence and his failure to approach the sentence as mandated by Way's case has, of itself, resulted in an excessive sentence as contended for by the applicant. Error in the approach to the plea of guilty 39 In Markarian v R [2005] HCA 25; 215 ALR 213, the High Court regarded a mathematical or tiered approach to sentencing as productive of error. Save only for where the legislature has proscribed the weight or value to be given to matters bearing upon the calculation of sentence, the High Court mandated an approach to sentencing that emphasised the importance of the discretion that is reposed in the sentencing judge in affording proper weight to all relevant considerations and then instinctively synthesizing these sometimes competing considerations so as to arrive at a fair and balanced sentencing outcome. 40 This Court, both prior to the High Court's review of sentencing practices in Markarian and since, has repeatedly criticised an approach to sentence where the addition or subtraction of months or years from another figure as a notional starting point fixes the time an offender must serve in prison. 41 In my view, his Honour's reasoning reveals an error in approach of this kind and an error which has resulted in the applicant being deprived of the discount to which he was entitled for the utilitarian value of his early plea of guilty. I have already referred to his Honour's failure to approach the applicant's sentence in accordance with the principles in R v Way. I need only add that where sentence is to be passed following a plea of guilty, a principled approach requires that it is only after an assessment has been made of objective seriousness and only after consideration has been given to the weight of subjective matters, that allowance is given for the utilitarian value of the plea of guilty so as to arrive at a sentence that is appropriate in all the circumstances. 42 Instead of this approach his Honour determined by reference to what he described as: "… the terrorising of the victims and everyone else in the house, and the concern for the community and the courts, for the message to offenders in domestic violence situations, and even considering the subjective factors for the offender, that a period of actual custody of around four years must be considered." He then said that: "…to arrive at the non parole custody of four years I will start with a term of eight years then allow for the plea of guilty to take the starting point to six years, with a four year non parole period." 43 By this approach, his Honour has failed to give effect to the 25 per cent discount to which the applicant was entitled by erroneously making allowance for it in a mathematical exercise undertaken in reverse and to justify what his Honour described as "the end point". Since for this reason I am of the view that this Court should re-sentence the applicant, it is not necessary that I consider whether his Honour also erred in his approach to s 44(2) of the Crimes (Sentencing Procedure) Act. Sentence

44 In my view and for the reasons set out above, the objective seriousness of the offending falls within the mid-range for offences of this kind. I consider that the applicant's prospects of rehabilitation (which must be assessed as good by reference to the evidence on sentence) are supplemented and improved having regard to the affidavit evidence received at the hearing of the appeal. He has sought ongoing assistance from programs within the prison designed to address his offending. He is described as a polite and hardworking inmate willing to pass on his skills to fellow inmates. It would appear that for these reasons he has attracted a minimum security rating. He clearly acknowledges that his loss of control has resulted in the loss of his family and that, just as he had experienced violence at his father's hand, by his own conduct he has failed to provide a stable environment for his son. I accept that he is genuinely committed to repairing the damage he has done and is genuinely remorseful. 45 The affidavit of Ms Pahl tendered on re-sentence is also relevant to re-sentence. To my thinking, it also permits this Court to approach the issue of rehabilitation in a most favourable light. She makes it plain that her support for the applicant is ongoing, reflected as much by what she says as by the fact that she has travelled some distance to visit the applicant to ensure the relationship with his son is maintained. She acknowledges the legal principles that warrant sentences being imposed for domestic violence offenders but impresses on the Court her assessment of the applicant's violence on the day of the offending as being "totally out of character for him" as a man she says she has loved and lived with for seven years. She describes the applicant as a "good man and a great father and provider". Although I am mindful of the caution that should be exercised before evidence of a victim's forgiveness is given undue weight in a sentencing exercise, and also mindful of the observations of Simpson J in R v Glen to which I have already referred, I am persuaded in the particular facts of this case to give Ms Pahl's evidence significant weight. 46 In my view, the applicant's plea of guilty of itself provides a sound basis for departing from the standard non-parole period however, consistent with a proper and principled approach, I use it as a reference point. The assessment of objective seriousness as within the mid-range and the subjective matters to which reference has been made are also such as to warrant a departure from the standard non-parole period.

47 Although his Honour did not approach the question of special circumstances in accordance with R v Simpson, his conclusion that special circumstances existed was nevertheless appropriate. I propose however to vary the statutory proportion by a greater margin, consistent with what I consider to be the need for supervision on the applicant's release so as to ensure his ongoing commitment to managing anger and to exercising control over his consumption of alcohol. 48 After applying a discount of 25 per cent for the early plea of guilty, I consider a non-parole period of two years and six months represents the minimum term of imprisonment which ought be served by the applicant.

49 Accordingly, I make the following orders: (i) Grant leave to appeal. (ii) Allow the appeal and quash the sentences imposed in the District Court. (iii) In lieu thereof, the applicant is sentenced to a non-parole period of two years and six months commencing on 7 April 2007 and expiring on 6 October 2009 with a balance of term of eighteen months expiring on 6 April 2011. **********

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CITATION: SHAW, Jason Robert v R [2008] NSWCCA 58

Hoare v The Queen (1989) 167 CLR 348 Lovell v R; Dominey v R [2006] NSWCCA 222 Markarian v R [2005] HCA 25; 215 ALR 213 R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Davies [2004] NSWCCA 319 R v Devine, Supreme Court of Tasmania, Underwood J, 5 July 1993 unreported R v Dodd (1991) 57 A Crim R 349 R v Glen, Court of Criminal Appeal, 19 December 1994, unreported CASES CITED : R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Johnson [2005] NSWCCA 186 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Porteous [2005] NSWCCA 115 R v Rice [2004] NSWCCA 384; 150 A Crim R 37 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Tory [2006] NSWCCA 18 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 Veen v The Queen (No 2) (1988) 164 CLR 465

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