Smith v R

Crimes (Sentencing Procedure) Act LEGISLATION CITED: Crimes Act Mental Health (Criminal Procedure) Act

Mulato v R [2006] NSWCCA 282 CASES CITED : R v Way (2004) 60 NSWLR 168 Veen v The Queen (No 2) (1987-1988) 164 CLR 465 and 479 Vu v R [2006] NSWCCA 188

PARTIES: SMITH, William Roger Regina

COUNSEL: H L A Cox - Appellant J A Girdham - Respondent

SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2008/0188

McCLELLAN CJ at CL JAMES J ADAMS J

FRIDAY 27 FEBRUARY 2009 SMITH, William Roger v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: William Roger Smith applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Acting Judge Woods for an offence committed on 20 March 2007 of specially aggravated breaking and entering a dwelling house and committing a serious indictable offence therein, namely malicious wounding of a woman who I will refer to as "the victim".

3 Prior to the sentence hearing Acting Judge Woods had conducted a hearing under s 11 of the Mental Health (Criminal Procedure) Act and had determined that the applicant was fit to be tried for the offence. After his Honour found that the applicant was fit to be tried, the applicant pleaded guilty to the offence. 4 The sentencing judge imposed a sentence of imprisonment consisting of a non-parole period of three years six months and a balance of the term of two years six months, making a total sentence of six years. The sentence was ordered to commence from 26 March 2007, the date on which the applicant had voluntarily attended a police station and been arrested and from which he had remained in custody until he was sentenced. 5 Specially aggravated breaking and entering and committing a serious indictable offence is an offence under s 112(3) of the Crimes Act for which the maximum sentence is imprisonment for 25 years. There is a standard non-parole period of seven years. 6 In his remarks on sentence the sentencing judge made a brief statement of the facts of the offence, which was not the subject of any dispute on the hearing of this application. This statement, substituting initials for the names of persons mentioned, was as follows. "On the evening of 20 March 2007 the victim at home (in a country town) and she and DF (an adult male) were in the house and her children and some others were on the veranda. At about 10.20pm the offender attended outside the premises and spoke to the children of the victim, and he asked them if they had a blade or a knife. He was told they had none. The offender is known to family members but is not related to them. TS one of the children then closed the door of the house and walked away. She saw the offender enter the house so she returned to the house. The offender entered into the lounge room where he stood. He was asked a number of times to leave but did not do so. He was seen to stare at DF in the lounge room. DF apparently is a victim of a previous malicious wounding for which the offender was convicted in 2004. (The victim) advised DF to leave the room which he did. The offender then picked up a knitting needle from a table and walked towards (the victim) and struck her with the needle twice in the upper left arm. She picked up a fan to protect herself and he struck her in the left cheek and on the back of the neck. The blows caused puncture wounds, the offender then left the house carrying the knitting needle." 7 An element of the offence to which the applicant pleaded guilty was that he "broke" into the house. The breaking consisted of the applicant opening the closed door of the house in the presence of witnesses, both on the verandah and inside the house. 8 The victim was taken to a hospital. A report by a doctor at the hospital stated that she had suffered puncture marks on her upper arms and her cheek and the back of her scalp, some of the marks penetrating to a depth of up to 5 millimetres. There was no damage to any internal organs. The puncture marks were treated with antibiotics. 9 As I have already noted, on 26 March 2007 the applicant voluntarily attended at a police station, where he was arrested. 10 At the time he was sentenced the applicant was 33 years old. Further subjective features of the applicant was stated by his Honour in his remarks on sentence as follows:- "He was born (in a country town) the second eldest of five children in an Aboriginal family. He had a critical illness when he was young. He was a slow learner and was in a special class for learning disabled children. He left high school at year seven or eight, he is not functionally literate. He has never had paid employment and has been in receipt of a disability pension. He commenced drinking alcohol at age sixteen years and has become a heavy drinker and occasionally suffers blackouts. It is noted from reports that he is easily led by peers and as well as heavy drinking has also got involved in drug use. As noted when I considered his fitness to plead it is clear that he is developmentally disabled. Reports assess him as having a functioning level of a young person and a cognitive operational level within the bottom three per cent of the population." 11 The applicant has an extensive criminal history, including a number of convictions for breaking and entering and assault occasioning actual bodily harm. I will now refer to some of the more recent entries in his criminal history. 12 In March 2004, after a hearing at which the applicant had been found unfit to be tried, the jury at a special hearing pursuant to the Mental Health (Criminal Procedure) Act found the applicant guilty of an offence of aggravated sexual assault. The judge who had presided at the special hearing, instead of imposing a sentence of imprisonment, made an order pursuant to s 9 of the Crimes (Sentencing Procedure) Act directing the applicant to enter into a good behaviour bond for three years. 13 On 22 November 2004 the applicant was sentenced to a term of imprisonment of 16 months with a non-parole period of 12 months commencing on 7 August 2004 for an offence of malicious wounding. This would appear to be the offence of malicious wounding of DF referred to by Acting Judge Woods in his statement of the facts of the present offence. 14 The applicant was called up for breach of the good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act and a limiting term of three years pursuant to s 23 of the Mental Health (Criminal Procedure) Act was set, commencing on 9 March 2005. An appeal by the applicant to the Court of Criminal Appeal was allowed and the limiting term was reduced to two years dating from 9 March 2005. 15 At the expiration of the limiting term on 8 March 2007 the applicant was released into the community "without (as his Honour stated in his remarks on sentence) any period of parole or such like supervision to assist him in readjusting back to the community and help him keep control of his alcohol and drug habits". The applicant committed the present offence just 12 days after he was released. As his Honour noted, any sentence imposed by his Honour would take effect "almost immediately" after the applicant had completed serving the limited term. 16 In his remarks his Honour said that in sentencing for offences under s 112(3) of the Crimes Act there was a need for general deterrence but the need for a sentence to give effect to general deterrence was less where an offender is developmentally disabled and of low intellectual functioning. On the other hand, in the present case, the applicant's history of crimes of violence raised concerns for the protection of the community. 17 In his remarks his Honour said that in finding that the applicant was fit to be tried he had found that "he did know what he was doing" but added "he sometimes does not realise the full implications or the effect of what he does". 18 His Honour referred to the standard non-parole period for the offence and said that there were a number of factors to be taken into account "when considering where in the tariff set by the legislature…this offence should come". His Honour continued:- "Normally the break and enter of a house where people are living and the inflicting of actual bodily harm without any special aggravating features would come within an area of ten years imprisonment. However here I have an entry into a house where the offender is known to the person in the house, where he enters into a conversation with people on the veranda, where there is no secret entry with a serious weapon to suggest some sort of plan, rather just come into the house with possibly the apparent knowledge that a certain person may be there, and an uncommunicative presence, then the taking up of a knitting needle which happened to be lying on a table and then the stabbing. Whilst the knitting needle may appear in abstract to be innocuous it can inflict harm and in this case did before people realised what was happening. I cannot place this matter into the upper level of seriousness under the section or even in the median more generally found factual situations, such as where there is a deliberate home invasion for gain. In this case it was done quite openly and it is not clear what the real intention was, although of course this is of small comfort to the victim of the wounding." 19 His Honour found that "because of his plea of guilty and his level of developmental disability there are reasons for not imposing the standard non-parole period". 20 Near the conclusion of his remarks his Honour said:- "With the overriding subjective factors of his mental difficulties I would consider a period of actual non-parole custody of three and a half years must be considered and this brings the matter into the lower end of the median range with a head sentence of eight years before giving allowance to the plea of guilty." 21 I will now turn to the grounds of appeal against sentence.

1. His Honour failed to properly assess the objective seriousness of the offence 22 As I have already stated, a standard non-parole period has been set for offences under s 112(3) of the Crimes Act. Accordingly, the sentencing judge was required to assess the level of objective seriousness of the applicant's offence and to determine whether it was an offence in the middle of the range of objective seriousness for offences under s 112(3). The sentencing judge was required to do this, notwithstanding that the applicant had pleaded guilty to the offence: Vu v R [2006] NSWCCA 188. 23 It is unclear whether his Honour satisfied this requirement. I would accept that his Honour did make a clear finding that the offence did not fall "into the upper level of seriousness". However, it unclear whether his Honour's statements that he could not place the applicant's offence in "the median more generally found factual situations" and that the applicant's offence was "in the lower end of the median range" amount to a finding that the offence was in the middle of the range or somewhat below the middle of the range. 24 In my opinion, a judge sentencing for an offence for which there is a standard non-parole period should make an unambiguous finding about whether in his judgment the offence is in the middle of the range or above or below the middle of the range. 25 Even if it is accepted that his Honour did make a finding, either that the offence was in the middle of the range or that it was slightly below the middle of the range, I consider that, notwithstanding the caution which should be exercised by this Court in interfering with a sentencing judge's assessment of the level of objective seriousness of an offence (Mulato v R [2006] NSWCCA 282), the court should find that his Honour erred in his assessment of the level of objective seriousness of the offence. In my opinion, the objective seriousness of the offence was below, and much below, the middle of the range of objective seriousness for offences under s 112(3). 26 Earlier in this judgment I quoted a part of his Honour's remarks on sentence, in which his Honour listed some of the matters mitigating the objective seriousness of the applicant's offence, including that the applicant was known to the persons in the house, there was no secret or forceful entry by the applicant into the house, there was no bringing of any weapon into the house, the weapon used by the applicant was a knitting needle which the applicant opportunistically took up while he was in the house and the physical injuries sustained by the victim, although distressing to her, were very minor, only barely amounting to a wounding. The offence was clearly quite unpremeditated. The applicant's developmental disability and low level of intellectual functioning mitigated the objective seriousness of the offence, because these factors were causally related to the commission of the offence (see R v Way (2004) 60 NSWLR 168 at 186-187) (86)). 27 I would uphold the first ground of appeal.
2. His Honour impermissibly confined his sentencing discretion 28 The head sentence set by his Honour was six years. 29 In parts of his remarks on sentence his Honour explained how he had arrived at a head sentence of six years. 30 His Honour considered that "normally" the breaking and entering of a house and the inflicting of actual bodily harm would attract a sentence of about ten years. It is unclear how his Honour arrived at the figure of about ten years but it would appear to be the result of his Honour adding to the standard non-parole period of seven years a parole period approximately in accordance with the ratio in s 44(2) of the Crimes (Sentencing Procedure) Act. 31 His Honour would appear to have moved from the starting point of ten years because of two factors nominated by his Honour, being the plea of guilty and the applicant's level of developmental disability. I infer that his Honour reduced the putative head sentence from ten years to eight years because of the applicant's level of developmental disability and then further reduced the putative head sentence to six years because of the applicant's plea of guilty which had been entered immediately after he was found fit to be tried. 32 If this is a correct analysis of the process by which his Honour arrived at a head sentence of six years, then his Honour omitted to take into account the factors mitigating the applicant's criminality which he had listed in his remarks on sentence, which were present in the applicant's case but which would not be present in the "normal" case. 33 In any event, I consider that his Honour committed the error described in Way at 193 (131) of commencing with the standard non-parole period and then "oscillating" about it by reference to aggravating or mitigating factors. 34 In Mulato Spigelman CJ said at (13):- "it is an error of principle to select a specific figure - whether that be a maximum sentence or a standard non parole period or a 'subliminally derived figure'… - and to add or subtract matters item by item in some sort of mathematical process. The reason that this approach constitutes legal error is because it impermissibly confines the sentencing discretion". 35 I would uphold the second ground of appeal.

Re-sentencing 38 Having allowed the appeal against sentence, it is necessary for this Court to re-sentence the applicant. 39 As already stated by me, I find that the level of objective seriousness of the applicant's offence was below, and considerably below, the middle of the range of objective seriousness for offences under s 112(3). I have already identified the factors justifying such a finding and thereby constituting reasons for setting a non-parole period that is shorter than the standard non-parole period. That the applicant pleaded guilty is itself a reason for departing from the standard non-parole period. I accept that, notwithstanding that I have determined that there are reasons for departing from the standard non-parole period, the standard non-parole period remains relevant as a reference point, benchmark, sounding board or guide post. 40 In my opinion, taking into account all the objective and subjective circumstances, a head sentence of five years would be appropriate. 41 I would find special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act. As noted earlier, the applicant was released into the community on 6 March 2007, after completing serving the limited term, without any supervision and then committed this offence only days after he was released. There is a clear need, as the sentencing judge himself recognised, for the applicant, when he is released from custody under his present sentence, to be provided with an extended period of supervision.

Orders 42 I consider that the Court should make the following orders:-

1. Leave to appeal against the sentence imposed on the applicant by Acting Judge Woods granted.
2. Appeal against sentence allowed.
3. Sentence imposed by Acting Judge Woods quashed and in lieu thereof the applicant be sentenced to a non-parole period of two and a half years commencing on 25 March 2007 and expiring on 24 September 2009 and a balance of the term of two and a half years.
4. The earliest date on which the applicant will be eligible for release on parole will be 24 September 2009. 43 ADAMS J: I agree with James J. **********

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