Canzius v The Queen

[2017] NSWCCA 177

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Canzius v R [2017] NSWCCA 177

Hearing dates:

14 July 2017

Decision date:

26 July 2017

Before:

Gleeson JA at [1]
Harrison J at [79]
Fullerton J at [80]

Decision:

(1)   Refuse leave to appeal against sentence with respect to proposed grounds 5 and 6.

 

(2)   Grant leave to appeal against sentence with respect to grounds 1, 2, 3, 4 and 7.

 (3)   Appeal dismissed.

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – where late plea of guilty to offence of reckless wounding contrary to s 35(4), Crimes Act 1900 (NSW) – where sentence of 2 years, 8 months with non-parole period of 1 year, 4 months – whether judge erred by circumscribing his discretion in relation to length of sentence – whether judge gave primary or determinative significance to standard non parole period of three years – whether judge erred in placing emphasis on specific and general deterrence – whether judge failed to take into account applicant’s mental health issues – whether the possibility of summary disposal should have been taken into account by the judge in mitigation of penalty – whether sentence manifestly excessive.

Legislation Cited:

Crimes Act 1900 (NSW), s 35(4)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 54A, 54B
Criminal Procedure Act 1986 (NSW), s 258(a), 267(2), Sch 1

Cases Cited:

Aslan v R [2014] NSWCCA 114
Couloumbis v R [2012] NSWCCA 264
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v Di La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Douar v R [2005] NSWCCA 445
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Papworth v R [2011] NSWCCA 253
R v Doan [2000] NSWCCA 317
R v JCE (2000) 120 A Crim R 18; [2000] NSWCCA 498
R v Morgan (1993) 70 A Crim R 368
R v Zamagias [2002] NSWCCA 17
Wong v R; Leung v R (2001) 207 CLR 584; [2001] HCA 64
Zreika v R [2012] NSWCCA 44

Category:

Sentence

Parties:

Raymond Anthony Canzius (Applicant)
Regina (Crown)

Representation:

Counsel:
M Ramage QC (Applicant)
S Hughes (Respondent Crown)

  Solicitors:
Jeffreys Lawyers (Applicant)
Director of Public Prosecutions (NSW) (Respondent Crown)

File Number(s):

2013/259737

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

28 July 2016

Before:

Haesler SC DCJ

File Number(s):

2013/259737

Judgment

1. GLEESON JA: The applicant, Raymond Anthony Canzius, seeks leave to appeal against the sentence imposed upon him by the District Court on 28 July 2016, following his plea of guilty to the offence of reckless wounding. That offence carries a maximum penalty of imprisonment for seven years: s 35(4), Crimes Act 1900 (NSW) (Crimes Act), and a standard non-parole period of three years: s 54A, Crimes (Sentencing Procedure) Act 1999 (NSW) (Crimes (Sentencing Procedure) Act).

2. After allowing a 10 percent discount for the utilitarian value of the late guilty plea, Haesler SC DCJ imposed a sentence comprising a non-parole period of 1 year and 4 months commencing 28 July 2016 and expiring on 27 November 2017, with a balance of term of 1 year and 4 months commencing on 28 November 2017 and expiring on 28 March 2019.

3. The applicant relies upon seven proposed grounds of appeal. Some of those grounds are related and some are dependent on the success of earlier grounds. The notice of application for leave to appeal was filed on 7 June 2017. Responsibility for the delay lies with the applicant and his legal representatives (Legal Aid).

Circumstances of the offending

4. The facts of the offending are summarised in the sentencing judge’s reasons, which were taken from a statement of agreed facts.

5. The applicant and the victim of the offence had known each other for a few years prior to August 2013. There were prior incidents between them. While none of the prior incidents were terribly serious, the applicant and the victim had little time for one another. The victim started seeing a woman who lived in an apartment block in Warrawong. The applicant also happened to have a friend who lived in the same block. The applicant and the victim argued and exchanged unseemly words whenever they came into contact with each other.

6. On 26 August 2013, the victim was present at the block of units. He walked along a ramp from street level to the upper levels of the unit block. At the end of the ramp, the victim came across the applicant. Very quickly they became embroiled in a scuffle. The applicant later told police that he simply “lost control” and he said he had little recall of what occurred.

7. The applicant was physically larger than the victim and was able to over-power him quite readily. Their scuffle took them from the end of the ramp, at a point near the top of a flight of several concrete stairs. The applicant picked up the victim by the rear of his jeans and pushed him down the flight of stairs. The victim fell heavily to the bottom of the landing of the stairs. He suffered a wound to his head, which was bleeding heavily, and a large wound to his knee as a result of the fall. The applicant followed and stood over the victim while he was on the ground and punched him in the head several times until others in the unit block yelled at him to stop, which he ultimately did.

8. The victim was hospitalised. The wounds to the top of his head and to his knee required suturing. He also suffered one fractured rib.

Subjective case

9. The applicant was aged almost 60 at the time of the offending and aged 62 at the time of sentence. He had a lengthy criminal history (commencing in 1975) for drug, property-related and motor vehicle offences and also for assault (1980, 1988, 1989 and 2009). He was convicted in August 2014 for an offence of resisting arrest in connection with a breathalyser test in April 2014.

10. The pre-sentence report dated 27 January 2016, characterised the applicant as a 62-year old single man, with no dependents, unemployed since January 2015, who resides alone. It was noted that the applicant had a long history of mental health issues and the applicant reported that he had recently been diagnosed with bipolar disorder. The author of the report recorded that she had confirmed this information with the applicant’s mental health nurse, who stated that the applicant’s “mental health continues to fluctuate and is still being investigated and stabilised”.

11. The applicant was assessed as having a medium risk of reoffending. The author of the report considered that the applicant would benefit from a period of supervision, and expressed the view that he was unsuitable for a community service order due to his mental health issues.

12. The applicant tendered a psychiatric report of Dr James Heiner dated 22 January 2016. Dr Heiner noted that he had five appointments with the applicant between April 2013 and January 2016. Two of the appointments were prior to the subject offence. The applicant gave Dr Heiner a history of both his alcohol and intravenous drug use, however, he denied using either for many years. He acknowledged continuing to use marijuana on a semi-regular basis.

13. The applicant also gave an account of a long history of conflict with the victim and stated that when he saw the victim, he decided to defend himself, and this involved attacking the victim “before [the victim] had a chance to attack him”.

14. Dr Heiner diagnosed the applicant as follows:

• IQ in the low range;

• poorly socialised conduct disorder;

• past history of polysubstance abuse, but now less of a problem;

• suffers episodes of depression, however, these appear to be situational, and there is no evidence of a bipolar or recurrent depressive illness.

15. Dr Heiner found no evidence that the offence itself was the result of a “formal psychiatric illness”.

16. Under the heading “Treatment suggestions”, Dr Heiner observed that “medication may provide some increased stability for [the applicant] and reduce the risk of these kinds of episodes happening again” but noted that there was no guarantee that such treatment would work. Dr Heiner concluded:

Unfortunately, there is no specific treatment I can offer that would “significantly and predictably reduce the risk” of similar incidents occurring again in the future.

The sentencing judgment

17. After referring to the maximum penalty and the standard non-parole period for the offence of reckless wounding, the sentencing judge observed that these were important guideposts to the exercise of his discretion and continued:

… but I have a discretion as to the appropriate penalty, taking into account both the objective circumstances of the offence and the circumstances of [the applicant].

18. The judge found the offence to fall below the middle range of objective seriousness:

… given it was a spontaneous action and the level of injury suffered by the victim, Mr Livermore. Whilst serious, his injuries fall well below many that come within the description of ‘wounds’ for sentence in this Court.

19. After summarising the agreed facts, the judge found the objective circumstances of the offence:

… although below the middle of the range, was still such that only a custodial sentence of some length could be imposed, given the maximum penalty and the standard non-parole period.

20. The judge did not consider it appropriate to make any finding of leniency because of delay in the sentencing process. The delay had not been the fault of the prosecution; rather the matter had been delayed for some time whilst the applicant sought to ventilate the possibility of withdrawing his plea.

21. The judge referred to the applicant’s subjective circumstances; relevantly, his criminal record, which included matters for assault; his assessment as having a medium risk of reoffending; and that his record denied him the leniency shown to first offenders. After referring to the psychiatric report of Dr Heiner, the judge noted that the applicant’s mental health issues presented the Court with a ‘dilemma’ in terms of balancing matters of deterrence and rehabilitation.

22. The judge considered that a custodial sentence of less than two years was inappropriate. His Honour said:

Mr Morrison has asked in submissions that I consider a non-custodial sentence. Before I can consider that option I have to reach a sentence of less than two years. Given the starting points that I have to adopt, that is simply impossible. There must be a custodial sentence in this matter.

23. His Honour’s reference to a “non-custodial sentence” was an error, but counsel for the applicant did not suggest that this error was of any significance. His Honour may be taken to have intended to refer to the submission on behalf of the applicant that consideration be given to a suspended sentence as an alternative to full-time custody. A suspended sentence imposed pursuant to s 12 of the Crimes (Sentencing Procedure) Act is a form of custodial sentence: R v JCE (2000) 120 A Crim R 18; [2000] NSWCCA 498 at [15]; R v Zamagias [2002] NSWCCA 17 at [25].

24. The judge made a finding of special circumstances on the ground that the applicant would require assistance to reintegrate into the community.

25. After allowing a 10 percent discount for the late guilty plea, the judge imposed the sentence indicated above. The non-parole period is 50 percent of the sentence, reflecting the finding of special circumstances.

Ground 1: The sentencing judge erred in circumscribing his sentencing discretion

26. The applicant submits that the sentencing judge circumscribed his sentencing discretion because the judge was of the view that since the offence had a non-parole period of three years, it was not possible to impose a sentence of less than two years. In oral argument, counsel for the applicant submitted that the judge had, in effect, fallen into a Muldrock error by giving primacy, or determinative significance, to the standard non-parole period of three years for the subject offence: see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [26].

27. In support of this submission, the applicant pointed to three matters: first, an exchange between the judge and the applicant’s solicitor during the sentencing hearing; second, parts of the sentencing judge’s reasons set out at [17], [18] and [19] above; and third, Judicial Information Research System (JIRS) statistics from the Judicial Commission.

Decision

28. There is no merit in this complaint.

29. As to the judge’s comments during the sentencing hearing, it is well-established that such exchanges do not form part of the remarks on sentence: Couloumbis v R [2012] NSWCCA 264. In any event, I do not read the exchange between the judge and the applicant’s solicitor as circumscribing his Honour’s sentencing discretion. The applicant’s solicitor had submitted that a suspended sentence should be imposed pursuant to s 12 of the Crimes (Sentencing Procedure) Act. That option is only available in respect of a sentence being of a term not more than two years: s 12(1)(a). In response, the judge indicated his view that a sentence of two years or less would not be appropriate. His Honour correctly observed that the maximum penalty and the standard non-parole period were important “guides” to the exercise of his sentencing “discretion”.

30. Next, and contrary to the applicant’s submissions, I do not read his Honour’s reasons as treating the guidepost provided by the standard non-parole period of three years as precluding a sentence of less than two years. His Honour treated the maximum penalty and the standard non-parole period for the offence as only a “guide” to sentencing and expressly noted that he retained a discretion as to the sentence to be imposed.

31. That the sentencing judge should have particular regard to the maximum penalty prescribed by statute is uncontroversial: Markarian v The Queen (2005) 228 CLR 357 at [31]. That the sentencing judge should consider a standard non-parole period in the sentencing exercise is expressly required by s 54B of the Crimes (Sentencing Procedure) Act. His Honour did not err in having regard to those legislative guideposts in determining the sentence to be imposed.

32. Insofar as the applicant relies on JIRS statistics to submit that other offenders have been dealt with by other than a full-time custodial sentence and/or by lesser custodial terms, two observations should be made.

33. First, the judge was not provided with any JIRS statistics. As the Crown submitted, the parties should be taken to have proceeded upon the basis that bare sentencing statistics were of limited use in the present case.

34. Second and in any event, as emphasised by the High Court, care must be taken utilising statistics for offences: Wong v R; Leung v R (2001) 207 CLR 584; [2001] HCA 64 at [59]; Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [54]. Again, as the Crown submitted, the bare sentencing statistics referred to by the applicant in his written submissions are of limited assistance, particularly as the majority of recorded offenders were sentenced to full-time custody. As to the statistics for offenders with only one offence, no Form 1 matters, a plea of guilty and aged more than 50 years, 44% were sentenced to full-time custody.

35. No error has been established.

Ground 2: The sentencing judge erred in failing to take into account the applicant’s mental health condition

Ground 3: The sentencing judge erred in placing emphasis on specific and general deterrence

Ground 4: The sentencing judge erred in giving extra weight to protection of the public

36. Proposed grounds 2, 3 and 4 are related, and may conveniently be dealt with together.

37. Ground 2 contends that the judge erred in failing to take into account the applicant’s medical conditions, particularly when assessing the weight to be given to the elements of specific and general deterrence. The applicant complains that the judge made no allowance for the applicant’s disabilities and there was no attempt to apply sentencing principles applicable to those offenders who have a mental illness.

38. Grounds 3 contends that the applicant’s mental problems made him an inappropriate vehicle for either specific or general deterrence. The applicant submits that the judge erred in placing particular emphasis on specific and general deterrence, when observing in his remarks on sentence:

The sentence must attempt to discourage this offender and others from resorting to self-help when it comes to acts of violence, that is of particular importance in this matter.

39. Ground 4 contends that there was no evidence justifying giving extra weight to the protection of the public, and that it was an error for his Honour to take this into account.

Significance of the offender’s mental health condition

40. The significance of an offender’s mental health or condition is a frequently recurring issue in the sentencing process. In Aslan v R [2014] NSWCCA 114, Simpson J (as her Honour then was) at [33] (Adams J and McCallum J agreeing) referred to the following summary of applicable principles stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v Di La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (citations omitted, italics added by her Honour):

[Principle 1] ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ...

[Principle 2] ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed...

[Principle 3] ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced...

[Principle 4] ● It may reduce or eliminate the significance of specific deterrence...

[Principle 5] ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public.

41. Importantly, Simpson J continued in Aslan v R observing at [34]:

It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.

Decision

42. In the present case, it is apparent from his Honour’s remarks on sentence that he had regard to the sentencing principles applicable to offenders who have a mental illness.

42. Having referred to Dr Heiner’s report, his Honour observed:

Matters such as this present a dilemma for the Court. The Court has to recognise the need to impose a sentence which attempts to deter others and this offender from committing offences of this type. The Court has to recognise that, where someone has a psychological or mental problem sometimes there is less need for general deterrence to apply, but there are also situations recognised by law where someone, because of their particular personality disorder, present as a danger to the community and there may be a particular need to give extra consideration to protection of the public (citation omitted).

44. The characterisation by the applicant of these remarks as indicating that his Honour gave extra weight to the need for the protection of the public is misconceived. His Honour’s remarks on sentence must be read in context. His Honour’s reference to giving extra consideration to the protection of the public, was undoubtedly a reference in summary form to Principle 5 referred to above. His Honour did not say and made no finding that the applicant’s offending or his mental issues meant that the public was in need of extra protection in the present case.

45. Counsel for the applicant complained that his Honour’s remarks on sentence did not expressly refer to the reference to the applicant’s mental condition in the pre-sentence report. That report noted that the applicant had given a history that he had been taking medication for the past 20 years for anxiety and depression and had recently been diagnosed with bipolar disorder.

46. The sentencing judge remarks were brief, having been delivered ex tempore. On a fair reading of those remarks, his Honour took into account the applicant’s mental health condition. It was not incumbent upon the judge to expressly refer to the pre-sentence report, particularly in circumstances where the applicant had tendered a psychiatric report from Dr Heiner who, as mentioned, had examined the applicant on five occasions between April 2013 and January 2016.

47. The judge may be taken to have accepted the evidence of Dr Heiner that the applicant’s episodes of depression were situational, and that there was no evidence of a bipolar or recurrent depressive illness. To the extent that the pre-sentence report might be taken to suggest otherwise, no submission to that effect had been advanced by the applicant before the sentencing judge. In any event, it was open to the judge to accept Dr Heiner’s opinion based on his assessment of the applicant on five occasions between April 2013 and January 2016, in preference to the hearsay evidence in the pre-sentence report of a bipolar diagnosis by an unidentified person in early January 2016.

48. His Honour correctly recognised that the weight to be given to specific and general deterrence may be less in the case of an offender suffering from a mental disorder. In the passage following the remarks on sentence set out at [43] above, his Honour continued:

The Court has to balance both matters of deterrence and the rehabilitation needs of Mr Canzius. He has to return to live in our community. He has to be assisted, if at all possible, to avoid repetition of these offences. The Court has to recognise his background and the problems that have developed over his life of 62 years. Some are well entrenched and as a result are matters over which he has little control, but the Court also has to, by the severity of the sentence, vindicate the dignity of the victim of the offence, particularly a victim of violence, and to express the community’s disapproval of that offending. The sentence must attempt to discourage this offender and others from resorting to self-help when it comes to acts of violence; that is of particular importance in this matter.

49. Importantly, neither the pre-sentence report, nor the report of Dr Heiner, supported a finding that the mental illness of the applicant contributed to the commission of the offence. Further, as his Honour noted, there was nothing to suggest that drugs played any part in the offence.

50. His Honour took into account the medical evidence, and expressly noted the ‘dilemma’ confronting the sentencing court in terms of the need to balance matters of deterrence and the rehabilitation needs of the applicant. There was no error by the judge in assessing the weight to be given to both specific and general deterrence, having regard to the applicant’s mental problems.

51. None of these grounds has been made out.

Ground 5: The sentencing judge erred in failing to consider other alternatives to full time custody

52. The applicant submits that the judge never contemplated other alternatives open to the Court (to full-time custody), including the options of a 3-year bond, a suspended sentence or an intensive correction order (ICO).

Decision

53. The difficulty with this submission is that it ignores the steps that the judge was required to and did undertake in the sentencing process: first, determining that imprisonment should be imposed and for what term the imprisonment should be, and second, determining whether any alternative to full-time custody should be utilised: Douar v R [2005] NSWCCA 445 at [70]-[72] (Johnson J, McClellan CJ at CL and Adams J agreeing).

54. Having determined that no penalty other than imprisonment was appropriate, his Honour was required to set the term of the sentence without regard to the manner in which it is to be served, before considering whether any alternative to full-time imprisonment was available, given the term set and the circumstances of the case: R v Zamagias [2002] NSWCCA 17 at [25]-[26].

55. Plainly, suspending the execution of the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act, was not available to the sentencing judge. As indicated, a court may only suspend execution of a sentence of a term not more than two years: s 12(1)(a).

56. Similarly, an ICO pursuant to s 7 of the Crimes (Sentencing Procedure) Act was not available. An ICO is only available as a sentencing option if a court has sentenced an offender to imprisonment for not more than two years.

57. As to a s 9 bond, the applicant’s criticism of the judge for not expressly referring to that option as an alternative to full-time imprisonment is unfair. No such submission was advanced at the sentencing hearing. In any event, it is clear from his Honour’s reasons that a bond would have been inappropriate.

58. There is no merit in proposed ground 5, and I would not grant leave to appeal on this ground.

Ground 6: The sentencing judge erred in failing to take into account appropriate penalties in the Local Court

59. The applicant submits that the offence was one which “logically” should have been dealt with, either on a plea or as a defended matter in the Local Court, and then points to JIRS statistics that show for the 688 recorded offenders dealt with under s 35(4) of the Crimes Act in the Local Court, 38 percent received a full-time custodial sentence while, of the balance of 62 percent, 19 percent received a s 9 bond, 5 percent received a community service order, 24 percent a suspended sentence, and 6 percent an ICO.

60. The statutory scheme by which the decision as to whether an offence capable of being dealt with summarily or an indictment ought to proceed in that way, is summarised by Johnson J in Zreika v R [2012] NSWCCA 44 at [84]-[101]. As Johnson J explains (at [91]), the decision is vested, in different ways, in the parties to criminal proceedings.

61. The offence of reckless wounding contrary to s 35(4), Crimes Act is capable of being dealt with summarily in the Local Court, being a Table 1 offence (cl 2, Sch 1, Criminal Procedure Act 1986 (NSW)), unless the prosecutor or the person charged with the offence concerned elects to have the offence dealt with on indictment: s 258(a), Criminal Procedure Act. In the present case, the Crown elected to proceed by way of indictment.

62. The maximum penalty available where Table 1 offences are dealt with summarily is imprisonment for two years: s 267(2), Criminal Procedure Act. It should be observed however, that s 267(2) prescribes the jurisdictional limit of the Local Court, and not the maximum penalty for any offence triable within that jurisdiction: R v Doan [2000] NSWCCA 317.

Decision

63. No submission was made by the applicant in the District Court that the possibility of summary disposal was a matter which ought to be taken into account in mitigation of penalty. That had the consequence that the judge did not have the benefit of considered submissions from the parties, including from the Crown, as to why the relevant charge came to be prosecuted on indictment in the District Court: Zreika v R at [76].

64. Nevertheless, it is not surprising that the applicant’s solicitor did not refer to the possibility of summary disposal at the sentencing hearing. Given the circumstances of the offence and the applicant’s criminal history for offences of violence, it was not open to the applicant to challenge the characterisation of the offence as one which was appropriate to be dealt with on indictment: Zreika v R at [108].

65. It has been frequently emphasised that this Court is a court of error: Zreika v R at [79]-[81]. This is not one of those cases where a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing judge) may have been overlooked by the offender’s legal representative and the judge: Zreika v R at [82].

66. Indeed, given that the offence was one which was appropriate to be dealt with on indictment, and the determination of the sentencing judge that the total sentence for the subject offence should exceed the jurisdictional limit of the Local Court, the “bare theoretical possibility” of the matter being dealt with in the Local Court does not suffice to establish error by the judge: Zreika v R at [109].

67. There is no merit in proposed ground 6, and I would not grant leave to appeal with respect to this ground.

Ground 7: Manifest excess

68. The applicant submitted that, in all the circumstances referred to in the earlier grounds, the sentence was manifestly excessive, harsh and unfair. The applicant emphasised the following circumstances:

1. the offence was below middle range;

2. the commission of the offence was a spontaneous action (involving no planning);

3. the applicant decided to defend himself before the victim had a chance to attack him;

4. minor injuries were sustained by the victim;

5. the plea of guilty;

6. the age of the offender;

7. extracurial punishment sustained that the applicant would lose his Housing Commission accommodation;

8. hardships with imposition of custodial sentence;

9. full-time custodial sentence;

10. the applicant’s mental condition.

69. A submission that a sentence is excessive (or inadequate) derives from the last kind of error identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. To make good this ground, the applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6].

70. As has been frequently stated, the task is not for this Court to decide whether it would have exercised its discretion differently: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen at [57]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]. The relevant question on appeal is whether the sentence is within a proper range: R v Morgan (1993) 70 A Crim R 368 at 371 (Hunt CJ at CL); Papworth v R [2011] NSWCCA 253 at [54] (Hoeben J (as his Honour then was); Whealy JA and Simpson J agreeing).

Decision

71. Each of the matters referred to above was considered by the sentencing judge in his reasons. As to the matter in (2) above, his Honour did not regard the applicant’s explanation as justifying his offending. As to the matter in (3) above, it is not accurate to describe the victim’s injuries as “minor”. His Honour described the victim’s injuries as serious, although falling well below many of the types of wounding offences within Crimes Act, s 35(4).

72. The applicant’s written submissions focused on the applicant’s age at the time of sentencing – 62 years. The applicant complained that, although the sentencing judge had adverted to the applicant’s age and that imprisonment would be hard on him, “it is impossible to discern any reduction in penalty accorded or in direct application of the principles applicable to elderly offenders”.

73. This complaint must be rejected.

74. The judge carefully reviewed the evidence before him as to the applicant’s subjective case, including his age, and referred to the report of Dr Heiner concerning his mental health. In addition to the passages from his Honour’s remarks set out at [43] and [48] above, reference should be made to the following extract from his Honour’s remarks on sentence:

… that while you are not elderly you are old, almost the same age as me, and that gaol will be hard on you. It will also mean that you will need to re-establish yourself in the community when that sentence is served. You will need considerable assistance in doing so. But where people engage in violence, as you did, people with your background and history, knowing full well that it is disapproved of by the community, the Courts have very little option but to express community disapproval by the imposition of a custodial sentence. (ROS 5)

75. Further, as the Crown correctly points out, there was no evidence of any relevant health difficulties that the applicant had experienced, or might in the future. Nor was it suggested that Justice Health was not able to provide adequate care and treatment of the applicant as and if required.

76. The applicant’s offending involved a serious and unprovoked attack. The seriousness of the offending is informed by the applicable maximum penalty – 7 years imprisonment, and a standard non-parole period of 3 years. The applicant had a prior history of offences involving physical violence. The applicant’s response at the time of his arrest demonstrated that he had no consideration for the victim. The applicant’s subsequent attempt to deflect responsibility for his conduct (by asserting that he decided to defend himself by attacking the victim before the victim had a chance to attack him) was indicative of an inability to accept responsibility for what is a serious offence. The applicant did not demonstrate any remorse for his actions. The injuries suffered by the victim were not minor, and fortunately were not more serious, given that the applicant had picked up the victim and pushed him down a flight of concrete stairs and proceeded to punch him in the head several times.

77. The judge carefully balanced the objective circumstances of the offending and the applicant’s subjective case. I am not persuaded that the sentence imposed by his Honour was unreasonable or plainly unjust. This ground is not made out.

Conclusion

78. Accordingly, I propose the following orders:

1. Refuse leave to appeal against sentence with respect to proposed grounds 5 and 6.

2. Grant leave to appeal against sentence with respect to grounds 1, 2, 3, 4 and 7.

3. Appeal dismissed.

79. HARRISON J: I agree with Gleeson JA.

80. FULLERTON J: I agree with Gleeson JA and the orders which he proposes.

**********

Decision last updated: 26 July 2017