SS v R

The remarks on sentence

1. The sentencing judge set out the facts as I have outlined them above, as well as the applicant's subjective circumstances. In addition, the sentencing judge noted that references supplied to the Court showed that the applicant played an active role in the community, including holding leadership roles in different youth activities. However, the sentencing judge noted that his admission of previous acts of violence in his relationship with the victim before the offence deprived him of a claim that the offences were an isolated aberration.
2. The sentencing judge stated that he was satisfied beyond reasonable doubt that the decision to break into the premises was, to some extent, premeditated, although it involved little planning. He stated that the applicant knew the victim was working there that night. He pointed out that she was working alone with people with serious disabilities who were dependent on her. He stated that the applicant's refusal to leave the premises when asked, his use of gloves and his reference to someone doing something he would regret, justified the drawing of the reasonable inference that the applicant entered the premises intending to do some harm to the victim or to be physically violent towards her. He stated he was satisfied of this beyond reasonable doubt. As I indicated, the sentencing judge did not accept that the applicant applied CPR or did anything to revive the victim.
3. In those circumstances, the sentencing judge concluded that the offence was well above the middle of the range of seriousness, although he rejected the submission that it fell into the worst category.
4. In relation to Count 2, the sentencing judge noted that the offence was committed when the victim was in a vulnerable position because she was unconscious on the floor. He then made the following remarks: "In the Court's view, this was a serious assault because she was not in a position to react to what he was doing. The Offender had no way of knowing, on the evidence before the Court at least, of the content of the fire extinguisher. It is possible that it might have resulted in chemical burns or it is possible that the powder might have in some fashion coagulated in the victim's throat and become life threatening. None of these things in fact transpired, but that does not mean that the Court should exclude from its consideration such risks or possibility. It is relevant, in the Court's view, to take such matters into account in assessing the objective criminality." It was these remarks which form the basis of Ground 1 of the grounds of appeal.
5. His Honour also noted that what occurred adversely impacted on the ability of the victim to breathe.
6. In dealing with the subjective circumstances, the sentencing judge noted that Ms Durkin concluded that, despite the adversity in his life, the applicant did not suffer from any clinical disorder or personality dysfunction. He stated that he was not persuaded there was any relevant mental health issue justifying a finding of reduced moral culpability.
7. The sentencing judge referred to Ms Durkin's comment that the applicant stated that he had difficulty in managing his anger. He noted that the applicant's mother had told the probation officer that the applicant's anger and aggression had dissipated or improved over time. The sentencing judge said that if the applicant had anger management issues at the time of the offences, he was not persuaded that it was connected to the traumatic experiences he endured before his arrival in Australia.
8. The sentencing judge took into account that the applicant had told Ms Durkin that he felt insecure in his relationship and could not deal with rejection. However, the sentencing judge also noted what he described as "a minimisation of his criminality" when speaking to the probation officer and a failure to acknowledge the allegation of indecent assault the subject of the Form 1 offence when speaking to Ms Durkin.
9. The sentencing judge acknowledged that there were a number of positive factors in terms of his prospects of rehabilitation and not reoffending. However, he stated that the absence of remorse was a matter of concern. In the result, he was satisfied that the applicant now understood the laws of this country and that the prospects of his rehabilitation and not reoffending were good.
10. The sentencing judge said that because of his relative youth, he gave greater weight to rehabilitation and less weight to deterrence, although he stated that, for obvious reasons, general deterrence must still be appropriately reflected.
11. In the result, the sentencing judge imposed the sentence to which I have referred above at [3]. In imposing this sentence, the judge allowed a discount of 10% for the utilitarian value of the plea of guilty entered immediately before trial.

The grounds of appeal

1. The applicant relied on two grounds of appeal: "1. The sentencing judge erred in his findings as to the risks associated with the use of the powdered fire extinguisher for the purposes of determining the objective seriousness of count 2. 2. The sentences imposed both individually and as a whole are manifestly excessive."

The submissions

1. It was submitted that the sentencing judge erred in finding, in the remarks to which I have referred above at [29], that there was a hypothetical risk of burns, choking and indeed death. It was submitted that this finding was not available on the evidence. The applicant submitted that the sentencing judge relied on this matter in determining the objective seriousness of the offence the subject of Count 2. He pointed to the submission made at the sentencing hearing that there was a lack of evidence as to what effect the spraying of the fire extinguisher had and that whether it could be fatal or prove to be corrosive was a matter of speculation.
2. The applicant submitted that there was no evidence supporting a finding that there was a risk of chemical burns or asphyxiation due to the possibility of powder coagulating in the victim's throat. He submitted that a finding that the act had a capacity to be fatal was a matter of serious aggravation which would have necessitated satisfaction beyond reasonable doubt.
3. The Crown submitted that a fair reading of the passage of the remarks on sentence in question showed that the sentencing judge did not form the view that the offence was serious because of the hypothetical risk of burning or choking, but rather, because the victim was unconscious and not in a position to react to the offending behaviour and defend herself against the risk associated with the emptying of the chemical contents of a fire extinguisher into her throat and on to her face. Further, the Crown submitted that it was an agreed fact that the powder in the victim's mouth and throat made it difficult for the victim to breathe and that the co-worker who found the victim noticed that she was struggling to breathe.

Consideration

1. I have set out the passage complained of above at [29]. There is no dispute that the victim was not in a position to react to what occurred. Nor could it be disputed that the applicant did not know the contents of the fire extinguisher. The primary judge then referred to what he described as the possible consequences, whilst accepting that they did not occur.
2. It does not seem to me that the sentencing judge erred in concluding that pouring a compound from a fire extinguisher into a victim's throat and mouth gave rise to the possibilities to which he referred. As he pointed out the applicant did not know the content of the fire extinguisher. He made no finding as to what that content was. Nor did he find as a matter of fact that the content of the fire extinguisher had the capacity to cause burns or coagulation in the victim's throat. He merely referred to what, in my opinion, were self-evident risks of pouring an unknown chemical into the throat and mouth of an unconscious victim. As the Crown pointed out, the victim, when discovered by her co-worker, had difficulty breathing.
3. In these circumstances, there was no factual error in the passage about which complaint is made. This ground of appeal is not made out.

The submissions

1. The applicant submitted that the sentences imposed, both individually and cumulatively, were manifestly excessive. It was accepted that the offences were of a significant and unusual seriousness. However, it was submitted that the applicant's prior background and formative exposure to violence meant that the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) would have some application. It was submitted that the applicant's exposure to violence, including the murder of his father, "provides perhaps some explanation for why he so readily resorted to … violence". It was also submitted that the same survival traits he developed by necessity, including a need for security, played at least some part in the subject offending.
2. It was further submitted that the applicant's relative youth at the time of the offending required serious consideration, particularly as to the importance to be attributed to rehabilitation and, to a lesser extent, as a matter which may impact on the assessment of his moral culpability. It was acknowledged that general deterrence would inevitably be important in such a case, but it was submitted that the applicant's subjective case indicated he was not an ideal vehicle for general deterrence.
3. The applicant submitted that the sentence imposed in relation to Count 2 was a substantial one, having regard to the statutory maximum penalty of 5 years, particularly as the harm sustained was quite limited. He also submitted that, whilst a degree of accumulation was appropriate, having regard to the principle of totality and the fact that the Count 2 offence intimately formed part of the same course of conduct encapsulated by Count 1, the Court should conclude that a greater degree of concurrence was justified.
4. In submitting that the individual sentence for the offence under s 112(2) of the Crimes Act the subject of Count 1 was manifestly excessive, the applicant relied on sentencing statistics provided by the Judicial Commission of NSW, in particular those relating to sentences for contravention of s 112(2) of the Crimes Act by 18-20 year olds who have pleaded guilty and were charged with multiple offences, including Form 1 offences. It was pointed out that only 1% of offenders out of the sample of 80 received a head sentence approaching 8 years and none received a head sentence of 9 years and, in relation to the non-parole period, only 16% of a sample of 25 received a non-parole period approaching 30 months and none exceeded it. However, it should be noted that in one of the cases said to be comparable, YS v The Queen [2010] NSWCCA 98 (YS), the non-parole period was 5 years partially accumulated on an existing sentence, whilst in Thompson-Davis v The Queen [2013] NSWCCA 75, it was 3 years and 10 months, again partially accumulated on an existing sentence.
5. The applicant also relied on what it described as comparable cases, of which it said YS and Bolt v The Queen [2012] NSWCCA 50 (Bolt) were the most relevant. It was submitted that the proposition that the sentences were manifestly excessive derives some support from the comparative cases and statistical material, but predominately by reference to the absence of prior relevant convictions, the applicant's age and his subjective case.
6. The Crown submitted that appellate intervention was not justified simply because the Court may have imposed a lesser sentence or because the sentence was markedly different from that imposed in other cases. It was submitted that it was necessary for the applicant to establish that the sentence was unreasonable or plainly unjust.
7. The Crown pointed out that this was a case where the victim wanted the relationship to end and the applicant assaulted her after his efforts to convince her otherwise failed.
8. The Crown pointed to the sentencing judge's conclusion that the objective seriousness of the offence the subject of Count 1 was well above the middle of the range of seriousness, whilst the objective seriousness in relation to Count 2 was towards the upper end of the range.
9. The Crown pointed to the findings of the sentencing judge to the effect that there was premeditation, although it involved little planning, that there was an intention to do some harm, that the victim was vulnerable because she worked alone in a facility for people with severe disabilities and that the applicant did nothing to revive her after she lost consciousness.
10. The Crown noted that the sentencing judge found the applicant to be of prior good character but was deprived of the claim that the offences were an isolated aberration.
11. The Crown noted that the sentencing judge determined that the report of Ms Durkin did not show that the applicant suffered from any relevant clinical disorder or personality dysfunction or any mental issues which might justify a finding of reduced moral culpability. The Crown also pointed to the fact that the sentencing judge was not persuaded that any anger issue the applicant may have had was causally connected to the traumatic experiences he had endured prior to his arrival in Australia.
12. Counsel for the Crown submitted that although there was no direct reference to Bugmy in the remarks on sentence, the judge gave consideration to the causal connection between the applicant's upbringing and the commission of the offence.
13. The Crown also pointed to the fact that the sentencing judge was unable to find that the applicant was genuinely remorseful, having regard to his attempts to minimise his criminality and his failure to acknowledge the allegations of indecent assault when speaking to Ms Durkin. However, it was pointed out that the sentencing judge found that the applicant's prospects of rehabilitation and not reoffending were good and that the sentencing judge had regard to the applicant's relatively young age and gave greater weight to rehabilitation and less weight to deterrence.
14. The Crown submitted that the applicant's insecurity and lack of ability to deal with rejection was not unusual amongst men who assault their partners or former partners. It was submitted this should not give rise to a reduction in the weight to be given to general deterrence.
15. So far as the statistics were concerned, the Crown submitted that such statistics did not fix boundaries which other Courts should follow and what is sought is not numerical or mathematical equivalence in sentencing but consistency in the application of the relevant legal principles. It was submitted that bare statistics tell a judge very little.
16. The Crown accepted that comparable cases were a useful tool in determining the appropriateness of a sentence but stated that they do not establish the outer boundaries of the permissible discretion, stating that this is done by the maximum penalty. It was submitted that the cases referred to by the applicant were readily distinguishable when regard was had to the objective and subjective features of each of them.
17. So far as accumulation was concerned, the Crown noted that, as a result of the partial accumulation of the sentences, the sentencing judge made a finding of special circumstances and varied the statutory ratio for the non-parole period. The Crown pointed to the fact that the exercise involved in determining whether sentences should be accumulated and the extent of any accumulation was discretionary and intuitive and cannot be conducted mathematically.

Consideration

1. It is important to bear in mind that the Court is not entitled to uphold an appeal on the ground of manifest excess merely because it would have imposed a different and lesser sentence: Lowndes v The Queen [1995] HCA 29; 195 CLR 665 at [15]. Further, appellate intervention is not justified simply because the sentence imposed by the sentencing judge is markedly different from sentences which have been imposed in other cases. Intervention is warranted only when the difference is such that, in all the circumstances, the appellate court concludes there must have been a misapplication of principle: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]. As was stated by Gaudron and Gummow JJ in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [22], the sentence must be unreasonable or plainly unjust so as to warrant intervention on this ground: see also Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili) at [59]; Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [26]-[27].
2. The applicant placed considerable reliance on sentencing statistics and what he described as comparable cases. It is important to remember the limitations on the reliance that can be placed on such material. In Hili, the plurality, citing what was said by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1, made the following remarks at [54]-[55]: "[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'. [55] As the plurality said in Wong: '[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.'"
3. In the present case, the statistics, whilst demonstrating that the sentence on Count 1 on the indictment was outside the upper end of the range of sentences provided by the Judicial Commission, do not provide any real assistance in determining whether the sentence was manifestly excessive in the absence of any detail concerning the circumstances of the particular cases in question. Further, the particular cases which were relied upon involved such different circumstances to the present case that they do not provide a guide to the principled approach to sentencing in this case. Although I have read all of the cases, it is only necessary to refer to the two on which reliance was most placed to demonstrate why they provide little assistance.
4. YS was an appeal from a sentence imposed on the appellant of 8 years with a non-parole period of 5 years. Because the appellant was already serving a term of imprisonment, the sentencing judge found special circumstances and slightly shortened the non-parole period.
5. The appellant in that case broke into the complainant's premises whilst she was in bed and sexually assaulted her, putting his penis in her mouth after kissing and licking her breast and digitally and orally penetrating her. When she began to choke, he removed his penis without ejaculating and left. The applicant was 16 years of age at the time of the offence and was of Aboriginal descent. He commenced drug use at the age of 12 and was diagnosed with a psychotic disorder at the age of 18. The appellant received a discount of 10% for a late plea of guilty.
6. The Court concluded that the attempted use of sentencing statistics by the appellant in that case suffered from the same limitations as in the present case: at [29].
7. The Court rejected the contention that the sentence was manifestly excessive.
8. The difference between that case and the present case is self-evident. The offender was 16 at the time of the offence, had a diagnosed psychiatric disorder which, although it was not said to contribute to the offence, would make his time in custody more difficult. It was necessary to take both the age of the offender and his mental condition into account in determining the appropriate sentence. Further, unlike the present case, a Form 1 offence was not taken into account and the non-parole period did not reflect the non-parole period for two separate offences.
9. Principal reliance was placed on the decision of this Court in Bolt. In that case, the Court found that the sentencing judge had made an error of the nature of that discussed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 and sentenced the appellant to a term of 4 years with a non-parole period of 2 years and 6 months. The circumstances of the offence were that the victim, who was seven weeks pregnant, awoke to find the offender, a former boyfriend, screaming at her. The next thing she remembered was sitting in the lounge room covered in blood. The appellant rang an ambulance. The victim suffered a severely broken nose, nausea, severe headaches and vomiting.
10. The appellant was said to have shown significant remorse, complete acceptance of responsibility and a genuine commitment to rehabilitation. The appellant had a severely deprived background, being beaten by his father and subsequently living with his grandmother, who also abused him and occasionally forced him to sleep outside in the park.
11. The appellant in that case was diagnosed with ADHD at the age of nine years. The psychologist who examined him identified cognitive and behavioural concerns, whilst the psychiatrist diagnosed him with schizophrenia precipitated by substance abuse and non-compliance with his anti-psychotic medication. The psychiatrist stated he was probably psychotic at the time of the offence.
12. Once again, the differences are self-evident. Although the offender had in common with the applicant a severely deprived background, the applicant in the present case had adapted well to life in Australia. Further, although there was evidence of psychological instability in the case of the present applicant, it was concluded that he did not suffer from any clinical disorder or personality dysfunction. It was not disputed that the judge was entitled to find that there was no mental health issue justifying a finding of reduced moral culpability. Further, by contrast with the present case, the appellant in Bolt accepted full responsibility for his actions, whilst in this case, the applicant sought to minimise his criminality.
13. In these circumstances, the comparable cases provide little assistance in determining whether the sentence imposed on the applicant was manifestly excessive. In dealing with this question, it is important to bear in mind that what ultimately falls for consideration is the overall sentence which was imposed. It is not clear whether the sentencing judge exercised his powers under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to impose an aggregate sentence, having fixed a separate sentence for each of the counts on the indictment and not recording the fact that an aggregate sentence was imposed. It is not necessary to deal further with the question of whether a different approach to manifest excess (or inadequacy) is necessary in such a case as I am satisfied that neither the sentences imposed for the individual counts nor the overall sentence were manifestly excessive.
14. The sentence imposed on Count 1 was a sentence of 9 years with a non-parole period of 4 years, the sentence being imposed after a 10% discount for the plea and taking into account the Form 1 offence. As the sentencing judge pointed out, the offence was serious. I have set out the facts above. It involved breaking into a disabled persons' home when the applicant knew the victim was alone, apart from the persons being cared for on the premises. The victim was threatened and ultimately choked to the point where she lost consciousness. It was not contended that the judge erred in finding beyond reasonable doubt that the applicant broke into the premises with the intention of doing harm to the victim, nor that he was entitled to conclude that the offence was well above the mid-range of objective seriousness. I agree with that assessment.
15. The sentencing judge took the youth of the offender into account but found that he did not suffer from any clinical disorder or personality dysfunction. His conclusion that there was no relevant mental health issue justifying a finding of reduced moral culpability was not challenged.
16. The applicant placed particular reliance on what was said in Bugmy regarding the relevance to the sentencing process of the deprived background of the applicant. As Bugmy made clear, an offender's deprived background may mitigate the sentence which would otherwise be imposed: at [37]. Whilst the applicant's tragic background in his early childhood is a relevant factor, it must be remembered that he told Ms Durkin that he had adjusted well to life in Australia. In those circumstances, whilst recognising that weight must be given to his deprived background, it does not persuade me that the sentence imposed on Count 1 is manifestly excessive.
17. In all these circumstances, I am not persuaded that the head sentence imposed in respect of Count 1 was unreasonable or plainly unjust. So far as the non-parole period is concerned, the primary judge found special circumstances and imposed a non-parole period of approximately 44% of the head sentence. This could not be said to be manifestly excessive.
18. So far as Count 2 is concerned I have already indicated why the judge was justified in treating the offence as one which was objectively most serious. The victim was unconscious and defenceless and the pouring of chemicals down her throat without regard to the consequences could only be described as a callous and vicious act. Neither the sentence nor the non-parole period in these circumstances could be said to be manifestly excessive.
19. The overall sentence was one of 10 years with a non-parole period of 5 years. This was arrived at by accumulating 1 year of the sentence on Count 2 with the sentence imposed on Count 1. Whilst a head sentence of 10 years may be seen to be severe, it is not, in my view, manifestly excessive. The applicant accepted that some degree of accumulation was appropriate. The degree of accumulation and questions of totality themselves are questions of discretion and instinctive synthesis. In the present case, the degree of accumulation, in my view, could not be said to be unreasonable or plainly unjust, particularly when the sentencing judge found special circumstances and imposed a non-parole period of 50% of the total term.
20. Finally, the need for the imposition of adequate punishment and general deterrence in cases of domestic violence has been repeatedly emphasised in this Court, including not only the need for personal and general deterrence but also denunciation of offences of this nature: See the discussion of the authorities in R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [65]-[78].
21. In these circumstances, Ground 2 of the grounds of appeal has not been made out.

Conclusion

1. In the result I would make the following orders: 1. Grant the applicant leave to appeal. 2. Appeal dismissed.
2. SCHMIDT J: I agree with Bathurst CJ.
3. WILSON J: I agree with Bathurst CJ.

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