Clinton v R

[2014] NSWCCA 320

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Clinton v R [2014] NSWCCA 320
Hearing dates:	1 December 2014
Decision date:	18 December 2014
Before:	Leeming JA at [1] McCallum J at [2] R A Hulme J at [50]
Decision:	Leave to appeal granted; appeal dismissed
Catchwords:	CRIMINAL LAW - appeal against sentence - whether the sentencing judge erred in rejecting the possibility of the charges being dealt with summarily as a circumstance for reducing sentences - whether the sentencing judge erred in adopting an averaging approach to the reduction for plea - whether the sentencing judge erred in finding that the applicant showed an attitude of continuing disobedience warranting emphasis on specific deterrence - whether the sentencing judge erred in failing to take into account or sufficiently take into account the subjective matters - whether the total sentence was unduly harsh or severe
Legislation Cited:	Crimes Act 1900, ss 33B(1)(a), 59(1), 61, 195(1)(a) Crimes (Domestic and Personal Violence) Act 2007, ss 13(1) and 14(1) Crimes (Sentencing Procedure) Act, s 5 Criminal Procedure Act 1986, ss 166 and 260
Cases Cited:	Elias v R; Issa v R [2013] HCA 31 Kentwell v R [2014] HCA 37 Zreika v The Queen [2012] NSWCCA 44
Category:	Principal judgment
Parties:	Mitchell Clinton (Applicant) Regina (Respondent)
Representation:	Counsel: Ramage QC (Applicant) Lydiard (Respondent) Solicitors: Jeffreys Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/99056
Publication restriction:	None
Decision under appeal	Date of Decision: 2014-01-17 00:00:00 Before: Freeman ADCJ File Number(s): 2012/99056

Judgment

1. LEEMING JA: I agree with McCallum J.

1. McCALLUM J: Mitchell Clinton was arraigned in the District Court on an indictment containing 8 counts. He pleaded guilty to an offence of intimidation with intent to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (maximum penalty 5 years); an offence of intentionally damaging property contrary to s 195(1)(a) of the Crimes Act 1900 (maximum penalty 5 years) and an offence of using an offensive weapon (a knife) with intent to commit the indictable offence of intimidation contrary to s 33B(1)(a) of the Crimes Act (maximum penalty 12 years).

1. He pleaded not guilty, but was found guilty by a jury, of a charge of common assault contrary to s 61 of the Crimes Act (maximum penalty 2 years) and an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (maximum penalty 5 years). He was found not guilty of the remaining three charges but pleaded guilty to a backup charge of contravening an apprehended violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act which had been transferred to the District Court upon his committal for trial, as required by s166 of the Criminal Procedure Act 1986. The maximum penalty for the breach of the apprehended violence order was imprisonment for 2 years.

1. After the jury returned its verdicts the Crown submitted (in response to a question from the judge as to whether a pre-sentence report should be ordered) that a custodial sentence was required. Counsel for the offender accepted that was the case but sought an adjournment with bail for the purpose of obtaining a psychiatric report to address the applicant's accepted difficulty with anger management. The judge granted bail for that purpose.

1. The report of the psychiatrist, Dr Richard Furst, recorded the applicant's description of injuries suffered in a motor vehicle accident when he was 8 years of age, which Dr Furst thought were suggestive of a significant head injury. When the proceedings came back before the court for the proceedings on sentence, counsel then appearing for the applicant sought an adjournment to investigate that issue further by having the applicant undergo an MRI to ascertain the extent of any neurological deficit. The judge granted a further adjournment for that purpose. The applicant was ultimately sentenced on 17 January 2014 after presenting further evidence and submissions that day.

1. The facts found by the sentencing judge may be summarised briefly (much of what follows is drawn verbatim from the remarks on sentence). The offender and the victim had been in a domestic relationship which had been in difficulty for some time. Following earlier acts of violence by the offender against her, the victim had on 20 December 2011 obtained an interim apprehended domestic violence order for her protection. The terms of the order prohibited contact and prohibited the offender from approaching within 100 metres of her home and place of work. There had nonetheless been some ongoing communication between them.

1. In late March 2012 the offender arrived at the victim's home with the intention of staying overnight. His purpose in coming to Sydney was to attend a concert. The charge of intimidation with intent to cause a person to fear physical or mental harm (count 1) was based on an incident which occurred in the victim's bedroom very shortly after the offender arrived at her home. He went into the bedroom, seized her around the neck, pushed her against the bedroom wall and told her that if she let any other man near her children he would kill her.

1. The offence of assault of which the applicant was found guilty by the jury (count 2) was based on an incident which occurred after the offender returned from the concert later that night. He went to the bedroom, woke the victim and told her that he was intending to move to Queensland. Her response displeased him (she was insufficiently upset). He became upset and head butted her.

1. The offence of assault occasioning actual bodily harm of which the jury convicted the offender (count 4) related to his conduct after the head butting. He struck the victim several times in the arms, legs and body. Her evidence was that he was punching her and kicking her and that she was sitting there crying while he kicked her and hit her all over. She had widespread injuries to several areas of her body including her neck, the right side of her collarbone, her left upper arm, under her right arm and to her left leg and knee.

1. The charge of damaging property (count 7) was based on the applicant's admission that he smashed a mirror door on the wardrobe in the victim's bedroom. The charge of using an offensive weapon with intent to commit intimidation (count 8) was based on an admission made by the applicant in his record of interview relating to an argument in the victim's bedroom that same evening or the following morning. She was seated on the bed. The applicant grabbed a knife and stabbed it into the bed, telling her that he would kill another man he believed she was seeing at that time. The charge of breaching an apprehended violent order was based on the fact that all of the offender's conduct that night (in being in contact with the victim) was in breach of the apprehended violence order.

1. The offender was aged 18 at the time of commission of the offences and 20 at the time he was sentenced. The judge noted the far greater emphasis to be placed on rehabilitation in the case of young offenders but found that concerns about rehabilitation were tempered in the present case by aspects of the applicant's history, to which I will return.

1. The judge noted the submission put on behalf of the applicant that an appropriate sentence would be a "short, sharp sentence of imprisonment with a prolonged period of supervision in the community in order to address his difficulties with anger management". In considering that submission, his Honour observed that programs designed to address anger management are available in prison.

1. The judge referred to Dr Furst's reports and had regard to his opinion that the offender probably did not have a frontal lobe syndrome or severe brain injury but that his propensity towards anger was at least partially explained by his mild acquired head injury and the long term effects of viral meningitis suffered during his childhood.

1. The judge sentenced the offender as follows:

• on count 1 (intimidation) a term of imprisonment with a non-parole period of 6 months commencing on 17 January 2014 and a balance of term of 9 months;
• on count 2 (assault) a fixed term of 6 months commencing on 17 January 2014;
• on count 4 (assault occasioning actual bodily harm) a term of imprisonment with a non-parole period of 9 months commencing on 17 April 2014 (that is, accumulated by 3 months) and a balance of term of 6 months;
• on count 7 (damage to property) a fixed term of 6 months commencing on 17 April 2014;
• on count 8 (using an offensive weapon for intimidation) a term of imprisonment with a non-parole period of 6 months commencing on 17 October 2014 (that is, accumulated by a further 6 months) and a balance of term of 18 months;
• on the s 166 matter (the breach of the apprehended violence order) a fixed term of 12 months commencing on 17 January 2014 (that is, entirely concurrent with the other sentences).

1. The applicant had already spent 3 months and 8 days in custody on remand. The judge took that into account, indicating that the overall intention of the sentences imposed was that the applicant should serve a further 15 months in prison and then be on supervised parole for a further 18 months. The first date on which the applicant is eligible for parole is 16 April 2015, 15 months from the date of commencement of the first sentence.

1. There are five grounds of appeal. It is convenient to deal first with those alleging specific error. Ground 4 is:

"The sentencing judge erred in rejecting the possibility of the charges being dealt with summarily as a circumstance for reducing sentences."

1. The premise of this ground was that counsel for the applicant at the proceedings on sentence had submitted that a relevant circumstance to be taken into account was that the charges of which the offender was convicted could have been dealt with summarily. In his remarks on sentence, the judge said:

"There was rehearsed, briefly at least, in argument by [counsel for the applicant] the fact that some at least of these matters might have been disposed of in the Local Court and whilst there is no statutory requirement or obligation to take that matter into account, it should be borne in mind when there is a clear case for matters being dealt with in the Local Court when they could and should have been dealt with in the Local Court."

1. Curiously, the transcript of the proceedings on sentence does not bear out the proposition that counsel made any such submission, but in any event his Honour evidently proceeded on the premise that she had.

1. The sentencing judge referred to the decision in this Court in Zreika v The Queen [2012] NSWCCA 44. In that case Johnson J, with whom McClellan CJ at CL and Rothman J agreed, undertook a careful analysis of the relevance of the fact that matters that might have been dealt with in the Local Court are disposed of in the District Court, according to the different circumstances in which that event can arise. Johnson J said (at [103]):

"Circumstances in which a ground of appeal of this type will have real traction are best illustrated by R v El Masri. There, the applicant was committed for trial upon a charge of assault with intent to rob in circumstances of aggravation. He stood trial upon that count, with an alternative count of assault occasioning actual bodily harm. He was acquitted on the first count and pleaded guilty to the second count. The circumstances of the offence of assault occasioning actual bodily harm involved a single punch to the side of the head of the victim, with relatively minor injury resulting. The applicant had no criminal record for offences of violence. This Court took the view that the offence of assault occasioning actual bodily harm was, in truth, a summary offence which was only being dealt with in the District Court on indictment, because of the purely indictable count of which the Applicant was acquitted. It was entirely clear that the offence would otherwise have been dealt with summarily, but for the existence of the more serious charge."

1. In the present case, all of the offences for which the applicant was ultimately sentenced were capable of being dealt with summarily. The only offences which were not capable of being dealt with summarily were two of the three offences of which he was acquitted by the jury. As to the offences for which he was sentenced, they were all matters which could have been dealt with summarily but in which an election could be made to proceed to indictment under s 260 of the Criminal Procedure Act.

1. The sentencing judge clearly turned his mind to that circumstance. His Honour made the following finding on that issue:

"The number of charges, their seriousness, the fact that he was on conditional liberty and the fact that he had a history of offending against this victim before all militate in my view against the suggestion that these matters could and should have been dealt with in the Local Court."

1. Before this Court, the applicant was critical of the judge's reliance on the remarks of Johnson J in Zreika, noting that those remarks were directed to the situation where no submission had originally been made to the sentencing Court. As already noted, the transcript of the proceedings on sentence does not bear out the proposition that counsel made any such submission, but in any event it is clear, in my view, that the sentencing judge had proper regard to that issue in accordance with the principles stated in Zreika.

1. On the day on which the applicant was sentenced, counsel repeated her concession that the threshold of s 5 of the Crimes (Sentencing Procedure) Act had been crossed, that is, that no penalty other than imprisonment was appropriate. The basis for that concession was the multiplicity of offences in the face of an existing apprehended violence order (transcript 17 January 2014 at page 4, line 4). In my view the judge's conclusion set out above was open and accordingly ground 4 must be rejected.

1. In the circumstances, it is not necessary to consider the interesting question raised in the Crown's written submissions as to the significance in this context of the exercise of prosecutorial discretion: cf Elias v R; Issa v R [2013] HCA 31.

1. Ground 3 is:

"The sentencing judge erred in adopting an averaging approach to the reduction for plea."

1. The offender was charged with all matters on 28 March 2012. The matters were committed to the District Court on 16 January 2013. On committal, the offender indicated his intention to plead guilty to the charge of breaching the apprehended violence order (the matter on the s 166 certificate) and the offence of damaging property (count 7). All other matters were committed to the District Court. The offender was arraigned in the District Court on 7 March 2013, whereupon he entered pleas of guilty to counts 1, 7 and 8. The other matters were defended and went to trial.

1. On the issue of discount for the pleas of guilty, the judge said:

"Without being mathematically precise about this, I have allowed in relation to the matters on which he is entitled to a discount something in order of one sixth of the sentences which would otherwise have been, in my view, appropriate."

1. The discount allowing "something in the order of one sixth" was, in percentage terms, about 16.6 per cent. The sentencing judge evidently applied that discount to all of the matters to which the applicant ultimately pleaded guilty. It may be accepted that, for pleas entered in the Local Court, a discount of 25 per cent would ordinarily be allowed. The applicant submitted that this should have applied to the charges of assault, malicious damage and the breach of the apprehended violence order. In fact, it was only the malicious damage and the breach of the apprehended violence order which were the subject of pleas entered in the Local Court. If those two sentences had been discounted by 25 per cent instead of 16.6, it would have made a difference of about 18 days in the case of count 7 and about 37 days for the s 166 matter, but each of those sentences was entirely concurrent with other sentences. Accordingly, the application of the full discount for those matters would have made no difference to the overall sentence imposed on the applicant.

1. It follows, in my view, that this Court is not required to re-sentence on the basis of the issue raised by ground 3: cf Kentwell v R [2014] HCA 37 at [43].

1. Ground 2 is:

"The sentencing judge erred in finding that the applicant showed an attitude of continuing disobedience warranting emphasis on specific deterrence."

1. This ground cannot succeed unless the applicant demonstrates that the judge's finding was not open on the material before him. The judge said:

"What his behaviour during the course of these offences and subsequently indicates is a continuing attitude of disobedience to the law."

1. In my view, that finding was well open on the material before the judge. The relevant events were as follows.

1. According to the applicant's criminal history, on 14 December 2011, while he was still aged 17, the applicant committed two offences of common assault, an offence of contravening an apprehended domestic violence order and an offence of stalking or intimidating with intent to cause the victim fear of physical or mental harm. Those charges related to the same victim as in the case of the present matters.

1. On 20 December 2011 an interim apprehended violence order was made prohibiting contact between the applicant and the victim.

1. The applicant was dealt with for the December offences on 21 February 2012. He was placed on a six month good behaviour bond for each offence. One of the offences for which he was dealt with at that time was a breach of an apprehended violence order recorded as having been committed on 14 December 2011, suggesting that the interim order made on 20 December 2011 was not the first domestic violence order against the applicant, or else that it was made earlier and breached almost immediately.

1. It follows that, as at the date of these offences, the applicant had a prior conviction for breaching an apprehended violence order; remained subject to an apprehended violence order and was on a good behaviour bond, having been sentenced just over a month earlier.

1. Following the commission of the present offences, the applicant was arrested and refused bail. He was granted bail on 6 July 2012. On 27 May 2013 he committed a further offence of stalking or intimidating with intent to cause the victim to fear physical or mental harm, involving a different female victim. Mr Ramage QC, who appears for the applicant, noted that he received a bond for that offence, suggesting that it was not serious. It was. The applicant sent a series of threatening and degrading messages to his new partner, demanding that she ring him or answer her phone, calling her a "dog" and a "slut" and making serious threats of violence to her and her family. The messages reveal a sense of entitlement on the applicant's part to control his partners in the most threatening and offensive way. The contact continued even after police answered the victim's phone and asked the applicant to stop calling her.

1. It was plainly open to the judge to conclude that the applicant was a person in respect of whom specific deterrence was an important consideration. The applicant submitted that "the fact that there had been one breach of an AVO order which was involved intimately with the commission of the instant offences and one later (dealt with by a bond) by an offender who was just beyond being regarded as a juvenile could not properly be regarded as showing an attitude of continuing disobedience to the law requiring an emphasis on specific deterrence". I disagree. In my view, the submission misapprehends the seriousness of domestic violence and the difficulty of stopping it. The applicant was exactly the kind of offender who needed to have the seriousness of his repeated offending brought home to him. In my view, ground 2 must be rejected.

1. Ground 1 is:

"The sentencing judge erred in failing to take into account or sufficiently take into account the subjective matters."

1. It has frequently been noted that a ground which complains of the giving of insufficient weight to particular factors relevant to the sentencing exercise faces difficulty. The weight to be given to individual factors is quintessentially a matter of discretionary judgment. Appellate interference with the exercise of such judgment is narrowly constrained.

1. The applicant identified three specific aspects of his subject circumstances said to have been given insufficient weight. The first was his youth. The judge plainly had regard to the fact that the applicant was only aged 18 at the time of commission of the offences and had regard to the principles which have been stated by this Court on that issue. It was submitted that no moderation in the emphasis given to rehabilitation rather than deterrence in the case of young offenders was warranted, since none of the features usually regarded as "adult behaviour" (such as the use of weapons, planning or premeditation) are present in this case. In fact, the applicant's offending did involve the use of a weapon (a knife used to intimidate a woman).

1. The second aspect of the subjective circumstances said to have been given insufficient weight is the prior good character of the applicant. The judge specifically referred to a reference from the applicant's employer:

"Who describes him as "a worthwhile and trustee employee" and the support from referees who describe him as "a polite and helpful young man". Clearly the offender has good qualities but he has this distressing inability, as [the victim] puts it, to deal with the emotional consequences of intimate relationships with young women."

1. The applicant complains that the judge made no reference to the work history set out in the report of Dr Furst. It was submitted that the Court "should have" taken his good character into account in his favour justifying "some leniency". In my view, that submission amounts to an open invitation to this Court to approach the appeal as if the task were to exercise the sentencing discretion afresh. That is not the role of this Court.

1. The final factor in the subjective case said not to have been given sufficient weight by the sentencing judge was the applicant's disability. The judge expressly referred to the relevant evidence, evidently accepting Dr Furst's opinion that the applicant's propensity towards anger was probably at least partially explained by his medical history. The applicant submitted that the judges' remarks referring to that opinion were made in the context of a future treatment plan rather than as a matter going "to minimising his culpability". I am not persuaded that error is established in the approach taken by the sentencing judge. The remarks on sentence make plain that his Honour had regard to each of the factors identified by the applicant. The applicant's submissions amount in effect to a complaint that the judge could have had greater regard to those factors. It does not follow that he was wrong not to. In my view, ground 1 must be dismissed.

1. The final ground of appeal is "the total sentence imposed was unduly harsh and severe".

1. A ground framed in those terms cannot be upheld unless it is found that, notwithstanding the absence of specific error, the sentences imposed were manifestly excessive.

1. An aspect of the submissions in support of this ground was the contention that the applicant's offending did not mandate a full-time custodial sentence. That it did had been conceded by counsel for the offender who appeared at the proceedings on sentence. As already noted, after the jury returned its verdicts, she said "ultimately I'll be urging upon your Honour the custodial sentence that Madam Crown has asked for, but a custodial sentence with a non-parole period to reflect the time served and a very lengthy additional period subject to considerable supervision".

1. In my view, the submissions on this ground amounted in substance to the contention that a more lenient sentence could have been imposed. It is not enough to establish that a sentence was stern or even "harsh and severe". What must be established is that, notwithstanding the absence of specific error, the sentence is so excessive as to demonstrate in itself that the sentencing judge's discretion miscarried: Markarian v R [2005] HCA 25; 228 CLR 357 at [26] to [28]. I am not persuaded that it did. In my view, ground 5 must be dismissed.

1. The orders I propose are:

(1)   that leave to appeal be granted;

(2)   that the appeal be dismissed.

1. R A HULME J: I agree with McCallum J.

Decision last updated: 31 December 2014