Sonter v R

THE FACTS OF THE OFFENDING

1. His Honour found the facts of the offending to be as follows (commencing at ROS 3): The facts surrounding these various offences and matters are, with one qualification to which I shall refer later in these remarks, agreed. Slightly recast by me as to style but not substance they are as follows. As at May 2015 Ms Hand was known to Mr Goran Savka and Ms Melanie Hamilton. Mr Savka and Ms Hamilton lived in residential premises in the Sydney suburb of Blacktown with their three children aged 13, 12 and 7 years. Mr Savka's mother (Ms Brenda Green) lived in adjacent premises. On 7 May 2015 Ms Hand went to the home of Mr Savka and Ms Hamilton. The three of them shared an evening meal - during and after which Ms Hand consumed a large amount of alcohol. At about 2am on 8 May 2015 an argument occurred between Ms Hand and Ms Hamilton. At the time of the argument, Ms Hamilton was in the bathroom. Ms Hand opened the bathroom door and approached Ms Hamilton. Ms Hand grabbed Ms Hamilton by the hair and dragged her from the bathroom. Ms Hand then punched Ms Hamilton in the head and face. Ms Hamilton screamed out for her partner Mr Savka. Mr Savka (who was asleep at the time) was woken by his partner's screams and went to her aid. In doing so, he forcefully removed Ms Hand from Ms Hamilton. Following that removal, Ms Hand continued to scream at Ms Hamilton. Ms Hamilton's screams were sufficiently loud to waken Mr Savka's mother (Ms Green) in the adjoining premises. Ms Hamilton rang triple-0 and requested police assistance. The police arrived a short time later and found Ms Hand in her motor vehicle which was parked at the end of the driveway of the premises. After police spoke to Ms Hand, she followed their direction and left the premises. As a result of this assault, Ms Hamilton was taken to hospital where she was treated for cuts, bleeding, bruising and swelling to her face - all of which had been caused by the assault. In addition Ms Hamilton had severe leg pain caused to her by Ms Hand during the assault. Ms Hamilton was released from hospital at 6.30am on that day. It is these facts which constitute the offence of assault occasioning actual bodily harm for which Ms Hand is to be sentenced. In terms of its objective seriousness for an offence of its kind, counsel for Ms Hand submitted that it was slightly below the middle of the range. The Crown submitted that it was below mid-range, without any qualification. I accept the offender's submission in this regard. At about 6pm on 8 May 2015 Ms Hamilton and Mr Savka were at their home in Blacktown with their three children when they heard banging on the front door. They heard someone shouting "Open the fucking door". They recognised that voice as being Ms Hand's. But Ms Hand was not alone - she was accompanied by Mr Sonter and Mr Gordon and an acquaintance of Ms Hand, Ms Pania Hanna. At about this time, Ms Green was returning to her home when she noticed Ms Hand at the front of her son's property. Ms Green approached the door of her son's property at which time Ms Hand grabbed her and placed her in a headlock and yelled out to Ms Hamilton and Mr Savka "If you don't come out I'll bash your mum". Ms Hand then punched Ms Green to the left side of her face causing redness. As a result of some unhelpful drafting, this is the second matter of assault occasioning actual bodily harm on the form 1 concerning Ms Hand. Ms Hamilton then came out of her premises and rushed towards Ms Hand and a struggle ensued. During the struggle Ms Hand forced Ms Hamilton to the ground. At around this time Mr Savka also came out of the front door of his home. Also at about this time his 13 year old daughter entered the front yard of the premises. She went to the aid of her mother, striking Ms Hand with a pole in an attempt to remove her from her mother. And also at this time the 12 year old son of Ms Hamilton and Mr Savka came to the aid of his sister and mother, using an object to hit Ms Hand. It is this struggle between Ms Hamilton and Ms Hand which (somewhat out of chronological sequence) constitutes the first matter of assault occasioning actual bodily harm on the form 1 concerning Ms Hand. Whilst all this was occurring, Mr Sonter and Mr Gordon approached Mr Savka. They assaulted him. At some stage during this assault Mr Savka was knocked to the ground and rendered unconscious. He sustained a four centimetre laceration to the top of his head which breached both layers of the skin. He also suffered a fractured toe and pain in the jaw and coccyx. The agreed facts do not identify which of Mr Sonter or Mr Gordon specifically caused which injury to Mr Savka. Each of them (and Ms Hand) have pleaded guilty to the offence of reckless wounding in company on the basis of a joint criminal enterprise. It is these facts which give rise to that offence. … It is also these facts which give rise to the offence of affray insofar as Mr Sonter and Mr Gordon are concerned. In terms of its objective seriousness for an offence of its kind I find that it hovers somewhere equidistant between the middle and the bottom of the range.

THE SENTENCING JUDGE ERRED IN NOT PROPERLY CONSIDERING TOTALITY WHEN SETTING THE APPLICANT'S NON-PAROLE PERIOD

The sentence proceedings

1. In the course of the sentence proceedings the following exchange took place between counsel then appearing for the applicant and the sentencing judge (commencing at T26.3): COUNSEL: In terms of the plea of guilty, your Honour, it's entered into the Local Court. I understand my friend doesn't take issue with the submission that a full 25% discount to reflect the utilitarian value of that plea should be awarded to the offender. Mr Sonter is in a position where he was serving a balance of parole as your Honour will see from his record. He was taken into custody on 12 May and technically serving the balance of parole on that previous matter until 5 May of this year. Of course your Honour has a discretion to backdate any sentence that is imposed and I would invite your Honour to exercise that discretion on the basis that these charges are the sole reason for the revocation of that parole. HIS HONOUR: Where do you say the backdating should go to? COUNSEL: Your Honour, I would be inviting your Honour to do whole concurrent sentences with the balance of parole. HIS HONOUR: What's the alternative submission? COUNSEL: The alternative submission is a partial accumulation. HIS HONOUR: To when? COUNSEL: At least within a few months of the expiration of that previous balance of parole. So effectively a year. There's obviously the risk of double punishment in a circumstance- HIS HONOUR: What's the offence for which he was serving the balance of 30 parole? COUNSEL: That appears on page 22 of his record. It's a break and enter offence, at Gosford Local Court. HIS HONOUR: Break and enter, thank you. COUNSEL: In respect of special circumstances, your Honour. I would invite your Honour to find that Mr Sonter would benefit from an extended period on parole given his ongoing issue with drugs. Further, if your Honour is minded to impose any sort of partial accumulation either between the two charges or with the balance of parole period then that would also be a basis of finding special circumstances in order to reduce that statutory ratio. There's just one other point I wish to make on concurrency and accumulation. In respect of the affray and the reckless wounding in my submission that is part of a single episode of criminality and I would invite your Honour to impose wholly concurrent sentences in respect of those two charges given that they arise effectively out of the one set of circumstances.

The reasons of the sentencing judge

1. Having noted (at ROS 8) that the applicant's offending was aggravated by the fact that he was on parole at the time, the sentencing judge said (at ROS 16): I also regard his prospects of rehabilitation as unfortunately not being good. I have certainly not been persuaded, on the balance of probabilities, that they would be enhanced by a longer period on parole. I shall not make a finding of special circumstances.
2. In setting out the indicative sentences (at ROS 19-20) his Honour said: There would not have been total concurrency in relation to those sentences but rather partial accumulation. Mr Sonter was arrested on 11 May 2015. Thereafter he served the balance of his parole to 5 May 2016. By having regard to questions of totality, the start date of this present sentence will be 1 January 2016. As I have already said, in his case I decline to find special circumstances to vary the ratio of the non-parole period to the head sentence. I am not persuaded that his prospects for rehabilitation would be enhanced by a longer period on parole.

Submissions of the applicant

1. Counsel for the applicant submitted that accumulation of sentences may constitute a proper basis for a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"): R v Simpson (1992) 61 A Crim R 58 at 60-61 per Hunt CJ at CL. He submitted that in a case such as the present, where the term of imprisonment imposed was cumulative upon an existing sentence, it was necessary for his Honour to adjust the relevant ratio so as not to impose a non-parole period which was greater than 75% of the total sentence. Counsel submitted that in these circumstances, the sentencing judge had erred in not making such adjustment.

Submissions of the Crown

1. The Crown accepted that accumulation of sentences may be a proper basis for a finding of special circumstances for the purposes of s 44(2) of the Sentencing Act. However, the Crown also pointed out that a finding of special circumstances is a discretionary one and that in order to make out the ground of appeal, it was necessary for the applicant to establish that the sentencing judge had committed a House v The King type error.
2. Whilst accepting that the non-parole period imposed by his Honour in the present case exceeded 75% of the total effective term of imprisonment, the Crown submitted that a failure to provide reasons as to why this was so did not establish error because it was open to infer that the issue was considered by the sentencing judge. The Crown submitted, in particular, that it was evident from the proceedings on sentence, and from his Honour's reasons, that his Honour was conscious of the history of the applicant's incarceration, and the consequences of the commencement date of the sentence which he imposed.
3. The Crown further submitted that in any event, the minor discrepancy between the statutory ratio of 75%, and that imposed by sentencing judge of 77.2%, was insufficient to establish error, and that such discrepancy should be regarded by this Court as being essentially compliant with s 44(2).

Consideration

1. The ground of appeal as framed asserts that the sentencing judge did not properly consider the question of totality. However, it will be evident from the passage of the remarks on sentence set out at [13] above that his Honour expressly referred to that question. The only available conclusion is that his Honour specifically considered it. I am fortified in that conclusion by terms of the exchange which took place between his Honour and counsel then appearing for the applicant extracted at [11] above.
2. However, the submissions advanced on behalf of the applicant went slightly beyond the strict parameters of the ground of appeal and effectively asserted that his Honour had erred in the exercise of his sentencing discretion by imposing a non-parole period which was in excess of 75% of the total effective sentence, and in failing to give reasons for doing so. I am not persuaded that such a complaint is made out.
3. In Calhoun (a pseudonym) v R [2018] NSWCCA 150, the ratio between the non-parole period and the total sentence exceeded 81%. The applicant complained that the sentencing judge had erred in not acknowledging this ratio, and not explaining why it was warranted. Price J (with whom Bathurst CJ and Basten JA agreed) said (commencing at [30]): 30. There are a number of matters that are uncontroversial and may be shortly stated. The accumulation of a sentence upon a pre-existing sentence may constitute special circumstances. A finding of special circumstances is a discretionary finding of fact, and it is necessary for the applicant to establish error on the part of the judge in accordance with the principles in House v The King ("House"). The ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offence. Section 44(2) of the Crimes (Sentencing Procedure) Act does not oblige a judge to give reasons for setting a non-parole period that is more than 75% of the total sentence. However, it is advisable for a judge to explain why a ratio in excess of 75% was selected to avoid an inference that the matter was not considered. As Hoeben CJ at CL observed in Maglovski v R [17] at [28], the need for the judge to explain why a ratio in excess of 75% was selected usually applies to cases "where it could be inferred that an oversight might have occurred". 31. GP was a case where the partial accumulation by a sentencing judge of the sentence that was imposed on a pre-existing sentence increased the total combined non-parole period to 81.5% of the total combined sentence. In upholding the appeal, Hamill J (Macfarlan JA and Button J agreeing) was unable to infer that the sentencing judge turned her mind to the impact of the accumulation on the non-parole period. 32. On the other hand, in Tuivaga, where a similar issue arose on appeal, but was unsuccessful, Hoeben CJ at CL (R A Hulme and Wilson JJ agreeing) found that the sentencing judge was clearly aware that he was accumulating the manslaughter sentence that he imposed almost fully on previous periods of incarceration. It was against this background that the sentencing judge specifically found that the non-parole period was the "minimum period" that the applicant should spend in custody to appropriately reflect the criminality of the manslaughter offences. In those circumstances, it was not necessary for the sentencing judge to refer to the combined impact of the combined periods in custody on the manslaughter period.
4. Having observed (at [35]) that the absence of an explanation as to why a ratio of more than 75% was set does not necessarily establish error, Price J made reference to the judgment of Howie J in SZ v R [2007] NSWCCA 19 where his Honour had observed (at [5]) that a sentence must bear a reasonable relationship with the objective seriousness of the offence. Price J concluded (at [42]) that he was not persuaded that the sentencing judge had overlooked the impact of the accumulation, or had failed to take it into account. He concluded that the sentencing judge had obviously regarded the non-parole period imposed as being the minimum period that the applicant should spend in custody in order to appropriately reflect the criminality of the offending.
5. In GP v R [2017] NSWCCA 200 (referred to by Price J in Calhoun) the sentencing judge had imposed a sentence which was partially accumulated on a pre-existing sentence and which gave rise to the imposition of a non-parole period which was approximately 81.5% of the total sentence. Hamill J (with whom Macfarlan JA and Button J agreed) said (at [9]) that the issue was whether the sentencing judge was conscious of, or had adverted to, the proportion between the non-parole period and the total sentence, or whether the impact of the accumulation was inadvertent. His Honour noted (at [21]) that there was no absolute rule that an accumulated non-parole period must comprise 75% of the total sentence, nor was there any statutory requirement for reasons to be given where a non-parole period was greater than 75% of the total sentence. His Honour observed (at [21]) that there had been cases in which this Court had been able to infer that a sentencing judge had adverted to the impact of the accumulation: Tuivaga v R [2015] NSWCCA 145; Stoeski v R [2014] NSWCCA 161. His Honour concluded (at [22]) that the question was whether the record of proceedings lead to an inference that the matter was considered or adverted to by the sentencing judge.
6. Although in the present case the sentencing judge did not specifically allude to the ratio between the non-parole period and the head sentence, he was obviously mindful of the relevant chronology of events, the fact that the applicant's parole had been revoked, and that the applicant had served the balance of his parole following his arrest for the present offending. Moreover, and as I have already noted, his Honour specifically referred to the need to have regard to totality. It was in those circumstances that he set the commencement date of the sentence as he did. In my view, all of these factors point overwhelmingly in favour of a conclusion that his Honour considered the matter, and that the non-parole period he imposed was that which he considered appropriate to reflect the criminality of the applicant's offending. In my view, there is no room for a conclusion that there was any oversight on the part of the sentencing judge. In these circumstances, it was not necessary for his Honour to specifically advert to the issue when imposing sentence.
7. Moreover, the difference between the statutory ratio and that imposed by his Honour is marginally in excess of 2%. In McKittrick v R [2014] NSWCCA 128, a case in which the increase in the ratio was less than 2%, Simpson J (as her Honour then was) observed (at [37]) that whilst there is no requirement for reasons to be given where the non-parole exceeded 75% of the head sentence, it is usually considered appropriate that this course be taken. However, her Honour also noted (at [38]) that in that case the increase was less than 2% and that the sentences imposed achieved what the sentencing judge had intended to achieve. For the reasons I have previously set out, that is similarly the position in the present case.
8. It follows that the ground of appeal is not made out.

ORDERS 1. Leave to appeal granted. 2. Appeal dismissed.

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