Couch-Clarke v Regina; Regina v Couch-Clarke - [2010] NSWCCA 288

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
COUCH-CLARKE v REGINA; REGINA v COUCH-CLARKE [2010] NSWCCA 288

FILE NUMBER(S):
2009/3528009
2008/3528010

HEARING DATE(S):
Tuesday 31 August 2010

JUDGMENT DATE:
8 December 2010

PARTIES:
DANIEL MARTIN COUCH-CLARKE v REGINA
REGINA v DANIEL MARTIN COUCH-CLARKE

JUDGMENT OF:
Macfarlan JA Simpson J Hall J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
09/3528

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
26 August 2009

COUNSEL:
C: D Arnott SC
A: M Dennis

SOLICITORS:
C: S Kavanagh
A: S E O'Connor

CATCHWORDS:
CRIMINAL LAW – particular offences- assault occasioning actual bodily harm
CRIMINAL LAW –appeal against sentence- cross-appeal by Crown - s 5 (d) Criminal Appeal Act – whether supplying the wrong penalty – whether wrongly taking into account the matters on a form one – whether failing to give proper effect to special circumstances – whether sentence was manifestly excessive

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
Bingul v Regina [2009] NSWCCA 239
Markarian v The Queen (2005) 79 ALJR 1041
Pearce v The Queen (1998) 194 CLR 610
Regina v Bottin [2005] NSWCCA 254
Regina v Carter [2003] NSWCCA 243
Regina v Ferenc [2009] NSWCCA 126
Regina v Henry (1999) 46 NSWLR 346
Regina v Hitchins (1958) 75 WN 75
Regina v Janceski (2005) 44 MVR 328; [2005] NSWCCA 288
Regina v Jarrold [2010] NSWCCA 69
Regina v Phan [2007] NSWCCA 42
Regina v Simpson (1992) 61 A Crim R 58
Regina v Smith [2005] NSWCCA 339
Smith v Regina [2007] NSWCA 138

TEXTS CITED:

DECISION:
(1) The sentences imposed by the District Court on 26 August 2009 be set aside.
(2) That the applicant be re-sentenced in respect of Counts 1, 2, 3, 4 and 5 as follows:-
(a) In respect of the offence under s.114(1)(d) of the Crimes Act 1900 (Count 1 – enter building with intent to assault), the respondent is sentenced to a fixed term of 9 months imprisonment to commence on 26 August 2009 and to expire on 25 May 2010.
(b) In respect of the offence under s.59(1) of the Crimes Act (Count 2 – assault occasioning actual bodily harm), the respondent is sentenced to a fixed term of 12 months imprisonment to commence on 26 August 2009 and to expire on 25 August 2010.
(c) In respect of the offence under s.95(1) of the Crimes Act (Count 3 – aggravated assault with intent to rob), the respondent is sentenced to a fixed term of 6 months imprisonment to commence on 26 February 2010 and to expire on 25 August 2010.
(d) In respect of the further offence under s.95(1) of the Crimes Act (Count 4 – aggravated assault with intent to rob), the respondent is sentenced to a fixed term of 6 months imprisonment to commence on 26 August 2009 and to expire on 25 February 2010.
(e) In respect of the offender under s.95(1) of the Crimes Act (Count 5 – aggravated robbery), the applicant/respondent is sentenced to a non-parole period of 2 years and 6 months to commence on 26 August 2010 and to expire on 25 February 2013 with a balance of term of 12 months to commence on 26 February 2013 and to expire on 25 February 2014.
(3) The overall aggregate sentence is one of 4 years and 6 months with overall non-parole period of 3 years and 6 months.
(4) Accordingly, the first date upon which the applicant/respondent will be eligible for release on parole will be on 25 February 2013.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/3528009
2009/3528010
MACFARLAN JA
SIMPSON J
HALL J
WEDNESDAY 8 DECEMBER 2010

DANIEL MARTIN COUCH-CLARKE v REGINA
REGINA v DANIEL MARTIN COUCH-CLARKE

Judgment

MACFARLAN JA: I agree with Hall J.
SIMPSON J: I agree with Hall J.
HALL J: Daniel Martin Couch-Clarke (“the applicant”) makes application for leave to appeal in respect of a sentence imposed upon him in the District Court at Gosford.
The Crown has also brought proceedings by way of appeal pursuant to s.5D of the Criminal Appeal Act 1912. The basis for the appeal is discussed below.
The sentences
The applicant was sentenced by a judge of the District Court on 26 August 2009 in respect of five offences. He seeks leave to appeal in respect of one only of those offences, namely, the offence of assault occasioning actual bodily harm (Count 2).
In respect of Count 2, the sentencing judge imposed a 3 year term of imprisonment with a non-parole period of 2 years. The sentences in respect of the remaining four offences were for fixed periods ranging from 9 months to 18 months. Particulars of the individual sentences imposed are as follows.
•Count 1: Fixed term of 9 months imprisonment to commence on 26 August 2009 and to expire on 25 May 2010.
•Count 5: Fixed term of 12 months imprisonment to commence on 26 August 2009 and to expire on 25 August 2010.
•Counts 3 and 4: On each count, fixed terms of 18 months imprisonment to commence on 26 August 2010 and to expire on 25 February 2012.
•Count 2 and taking into account matters on Form 1: Non-parole period of 2 years’ imprisonment to commence on 26 February 2011 and to expire on 25 February 2013 with a balance of term of 12 months to commence on 26 February 2013 and to expire on 25 February 2014.
Accordingly, the effective sentence was one of 4 years and 6 months imprisonment with an aggregate non-parole period of 3 years and 6 months imprisonment.
The Crown appeal
The appeal by the Crown in respect of the sentences imposed for the remaining four offences was brought upon the basis of preserving the Crown’s position in light of the opinions that have been expressed by this Court concerning the conjunction of s.6(3) of s.7(1A) of the Criminal Appeal Act. The Crown referred in its written submissions in this respect to the decisions of the Court in Regina v Bottin [2005] NSWCCA 254 at [37] and Regina v Smith [2005] NSWCCA 339 at [32] to [40].
The Crown, however, stated that it did not seek a higher overall aggregate sentence than that imposed by the District Court.
The position, therefore, is that by virtue of the Crown having filed its notice of appeal, this Court will not be limited to making any orders it may make in respect of the challenge by the applicant to Count 2 without regard to the sentences for the remaining four offences. That means, in other words, that this Court will be in a position to consider all offences and the overall effect of the combination of sentences in respect of them. The overall criminality of the applicant in respect of the offences, accordingly, may be determined in the event that this Court intervenes and re-sentences him.
Five charges
The five offences with which the applicant was charged (including that under s.59), were as follows:-
“i.Enter Building with Intent to Assault. This offence is contrary to section 114(1)(d) of the Crimes Act 1900 (NSW). It carries a maximum penalty of seven (7) years imprisonment.
ii.Assault Occasioning Bodily Harm (victim: JR). This offence is contrary to section 59 of the Crimes Act 1900 (NSW). It carries a maximum penalty of five (5) years imprisonment.
iii.Assault with Intent to Rob in Circumstances of Aggravation (Use Corporal Violence) [victim: HR]. This offence is contrary to section 95(1) of the Crimes Act 1900 (NSW). It carries a maximum penalty of twenty (2) years imprisonment.
iv.A further count of Assault with Intent to Rob in Circumstances of Aggravation [victim: RC].
v.Robbery in Circumstances of Aggravation (Use Corporal Violence) [victim: Jarrad Ward]. This offence is also contrary to section 95(1) of the Crimes Act 1900 (NSW). It carries a maximum penalty of twenty (20) years imprisonment.”
The further matters on the Form 1 related to the offence of assault occasioning actual bodily harm (victim: HR) and affray.
The offences of violence were committed against four victims identified as JR, HR, RC and Jarrad Ward. As the Crown correctly observed (and, as Mr Dennis of counsel, who appeared on behalf of the applicant, agreed), the most serious attacks involving the applicant (the subject of Count 5) were those made on Mr Ward. As explained below, the comparative seriousness of that particular offence is a significant aspect. As detailed below, Mr Ward was subjected to several acts of assault. Of all the above victims, he suffered the worst injuries.
The applicant entered a plea of guilty in relation to all five offences charged at the first available opportunity. On that basis, he was given a 25% discount on sentence for the early pleas.
The approach to be taken on this appeal - sentencing errors beyond those raised in respect of Count 2
It is necessary to outline this Court’s approach in determining the present proceedings in the event that other or additional errors, beyond those asserted on behalf of the applicant in respect of Count 2, are found to exist and which impact upon the sentencing for other offences.
Whilst the discrete errors contended for on behalf of the applicant in respect of the sentence for Count 2 are to be considered in determining the application for leave to appeal, it is necessary to determine whether any separate or additional errors exist in the sentencing for other offences. The analysis below, therefore, examines, firstly, the points raised in the application for leave to appeal with respect to Count 2 and, secondly, the broader issues concerning the sentencing approach taken with respect to the remaining four offences. Any errors affecting one or more of the other offences (that is other than Count 2) are to be assessed for any impact they have on the sentencing exercise as a whole (including Count 2).
The facts
(1) Overview
The sentencing proceedings were based upon an agreed statement of facts. The summary set out below (cross-referenced to the individual counts) is based upon the facts appearing in the agreed statement. Before turning to the descriptions of each offence, it is necessary to refer to some general factual matters.
The relevant events occurred on the evening of Saturday 12 July 2008/ Sunday 13 July 2008 on the occasion of the 18th birthday party of a person identified as TR at her home at Umina. The offences occurred following the party some time after 3.30 am (Sunday) in a room at the nearby Ettalong Beach Hotel where a group of young men, invited to the party, had booked themselves to stay overnight.
TR’s guests included Jarrad Ward (aged 21) and three other young persons referred to in the remarks on sentence as HR, JR and RC. It was RC who had booked the room for the night at the Ettalong Beach Hotel.
During the evening, the applicant attended the party uninvited. He was in the company of a Mr John Neal, a Mr Damien Peters and a man named Mitchell (family name unknown). Later, a man named “Manual” also attended the party. He was also uninvited and was in the company of others.
The party ended at 1.00 am when police attended due to excessive noise. TR, HR, JR, RC and Jarrad Ward then went to the hotel room that had been booked by RC.
At about 3.30 am the applicant attended the hotel room in company with Neal, Peters and Mitchell. They smoked and drank. During their stay HR’s mobile phone was stolen. Later, ‘Manual’ attended with a large group of others. They left after a short time in company with the applicant and his companions.
(2) The factual matters relating to the five counts
Count 1: Enter building with intent to assault (13 July 2008); s.114(1)(d), Crimes Act 1900. The applicant accompanied by three males banged on the door of the hotel room which was opened by JR (male aged 16 years).
Count 2: Enter with Intent and assault occasioning actual bodily harm to victim JR. The door on which the group were banging was opened by JR. The applicant then punched JR (aged 16) and said ‘Where is all your stuff?’ The applicant and three males from the group with ‘Manual’ ran into the room, led by the applicant. JR ran into a bedroom and jumped through a window into the street. JR suffered a swollen and bleeding nose as a result of the assault. JR recognised the applicant and described his distinctive appearance. He also identified the applicant in a police photo array.
The agreed statement of facts sets out a more detailed account in respect of Counts 1 and 2 as follows:-
“The facts then in relation to count one and count two , that is the assault occasioning actual bodily harm on [JR] are as follows: Shortly afterwards the group heard banging on the door and eventually [JR], aged sixteen, opened the door. As he did so the offender punched him on the face and said ‘Where is all you stuff’. [JR] backed away and the offender and three males in the group with Emmanuel entered the room led by the offender. [JR] ran into the bedroom followed by the offender. He later jumped through the window into the street. [JR] sustained a swollen, bleeding nose from the punch. He recognised the offender as a man who had been at the party, describing him and said he had a distinctive long rat’s tail, as long as his own forearm. He knew him as Kermit. He knew him from the street in his suburb of Wyoming. On 31 July 2008 [JR] identified the offender on a police computer photo array.”
Count 3: Assault with Intent to Rob in Circumstances of Aggravation (Use Corporal Violence) re victim HR. The applicant and three others then approached HR (aged 15) who was seated on a bed and punched him twice to the head. The applicant then grabbed HR’s pockets and asked ‘Where are your valuables?’ HR responded that he had none. HR had heard people at the party refer to the applicant by his nickname ‘Kermit’ and heard the applicant refer to himself as ‘Daniel Clarke’. When the applicant and others went into a bedroom HR and MC ran out through the front door.
Form 1 matters: Affray and an offence of assault occasioning actual bodily harm. The applicant and three others returned to the lounge room as MC and HR ran out of the room. The applicant came outside and punched HR in the mouth causing cut and swollen upper and lower lips. HR ran off and scaled a fence, injuring his calf. He hid under a car until police arrived. HR later identified the applicant from a police photo array.
Count 4: Assault with Intent to Rob in Circumstances of Aggravation (Use Corporal Violence) re victim RC. RC (age 16) was seated on a nearby bed. The applicant said to him ‘How about you?’ RC replied ‘No I don’t, I swear’. The applicant then punched RC twice to the head, grabbed at his pockets, and then punched him again. The last punch caused RC to fall and the applicant then kicked RC to the head. RC ran out of the room with HR. RC hid behind a bus until police arrived. RC described the applicant to police and later identified him in a police photo array. RC sustained no injuries.
Count 5: Robbery in Circumstances of Aggravation (Use Corporal Violence) re victim Jarrad Ward and Affray (Form 1 matter). The applicant and his three co-offenders went to the bedroom. TR (aged 18), JR and Jarrad Ward (who, as noted above, was aged 21) were there. JR ran into a room before the offenders entered and Jarrad Ward helped him exit through a window. As Mr Ward closed the window one of the group punched him to the back of the head. Two of the group took him by the arms and he was punched about five times to the body. He was then forced to the floor and punched and kicked by the group. As this occurred the applicant asked him ‘Where’s your wallet and phone and your girlfriend’s handbag?’ The applicant searched for TR’s handbag whilst the other offenders punched Jarrad Ward several times. The applicant located the handbag and stole it. It contained two wallets, two phones, an Ipod, two cameras and keys. Jarrad Ward suffered a bruised forehead, a swollen and bleeding nose, swelling to his right rear skull, a red eye from a burst blood vessel, bleeding lips, three chipped teeth and sore ribs.
The agreed statement of facts sets out a more detailed account of the facts concerning Count 5 as follows:-
“The facts in relation to aggravated robbery and the affray, which is on the Form 1, are as follows: All four co-offenders then went to the bedroom. [TR], aged 18, and [JW] aged 21, and [JR] were there. [JR] had ran into the room before the four co-offenders entered and [JW] helped him exit through the window which opens onto the road. As [JW] closed the window one of the group punched him in the back of the head. Two of the group took [JW] by the arms and he was punched four or five times in the body. He was then forced to the floor and punched and kicked by the group. As this occurred the offender asked him ‘Where’s your wallet and phone and your girlfriend’s handbag’. [TR] was on the bed yelling form them to stop the assault. While the offender was searching her bed [JW] was punched several times by others in the group. The offender located the handbag and stole it. It contained two wallets, two phones, an iPod and two cameras and keys. [JW] sustained a bruised forehead, a swollen and bleeding nose, swelling to his right rear skull, a red eye from a burst blood vessel, bleeding lips, three chipped teeth and sore ribs. [JW] gave police a description of the offender, as had his friends, on 24 July 2008. He identified the offender on a police computer photo array.”
Jarrad Ward described the applicant to police and later identified him from a police photo array.
TR recognised the applicant and ‘Mitchell’ as the two who had punched Mr Ward whilst he was held by others. She later identified the applicant from a police photo array.
Stolen from the room were a pink purse (later recovered minus $20) with TR’s credit cards and drivers licence, a Kodak camera, an Ipod, a wallet containing Jarrad Ward’s driver’s licence, and a mobile phone. Jarrad Ward’s wallet was later recovered.
The applicant was arrested on 14 July 2008. Police seized clothing consistent with descriptions given by witnesses, which had bloodstains present. The applicant’s hands had marks consistent with recent punching. A pair of the applicant’s trackpants was later found to have DNA material consistent with that of JR present, as well as that of the applicant. The applicant declined to be interviewed. He gave police a buccal swab.
Grounds of appeal
The grounds of appeal in relation to Count 2 set out in the application for leave to appeal are as follows:-
“Ground 1:          His Honour erred in determining the appropriate sentence for the office of Assault Occasioning Actual Bodily Harm by:
(a)         Applying the wrong maximum penalty; and
(b)         Wrongly taking into account the matters on the Form One;
(c)Failing to give proper effect to the special circumstances found; and
(d)Imposing a sentence that was manifestly excessive.”
Before dealing with these grounds of appeal, in relation to the sentence for Count 2, it is appropriate to note at this point that the sentencing judge considered Count 2 was the most serious of the five counts. That, as I will explain below, was clearly an erroneous assessment. Count 5, not Count 2, was, on the facts in evidence, plainly the most serious offence of the five charges. It was that offence, not Count 2, that warranted a sentence with the longest term. I will deal separately with this aspect below. It is first necessary that I address each of the three discrete errors raised in Ground 1(a), (b) and (c) affecting the individual sentence imposed for Count 2.
Grounds in the application for leave to appeal – Count 2
Ground 1(a): Error as to maximum penalty
This ground is directly relevant to the sentencing judge’s assessment of criminality and the sentencing issues that arose in respect of Count 2.
The sentencing judge referred to Count 2, Assault occasioning actual bodily harm, as carrying a maximum penalty of 20 years imprisonment, whereas s.59 of the Crimes Act in respect of such an offence in fact specifies a maximum penalty is 5 years imprisonment.

Whilst it is conceded in the written submissions for the applicant that an erroneous statement as to the maximum penalty does not, of itself, warrant another sentence in law – see Smith v Regina [2007] NSWCA 138 at [34] per James J (Campbell JA and Smart AJ agreeing) - it was nonetheless contended for the applicant that intervention by this Court in the present case was necessary. It was emphasised that careful attention is required to be given to the maximum penalty in respect of Count 2 for reasons set out in the joint judgment (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen (2005) 79 ALJR 1041 wherein it was stated:-
“31. … careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick …”
I note at this point that, in relation to Ground 1(a), the applicant also relied upon the submissions made on his behalf on the issue as to the objective seriousness of the offence when addressing the question of manifest excess in relation to the issues arising in relation to Ground 1(d).
It was submitted for the applicant that, when the sentence imposed is considered in light of the maximum prescribed penalty for the offence of 5 years and an assessment is made of the objective seriousness of the offence, the sentencing judge had not committed a mere “slip” in his articulation of the maximum penalty, but had erroneously proceeded upon the basis that the maximum penalty was in fact 20 years’ imprisonment.
Whilst it was submitted for the Crown that there were a number of reasons why the sentencing judge’s mis-statement as to the maximum penalty may have been a slip not affecting the sentencing process, the Crown, in my respectful opinion, also correctly observed that it is hard to reconcile the sentence imposed for Count 2 when comparison is made to those involving a fixed term of 18 months imprisonment imposed on some of the more serious offences, particularly, Count 5. Whilst the sentencing judge’s error of taking into account Form 1 matters in relation to Count 2 (a separate ground - as to which see Ground 1(b) below) could partly explain the sentence imposed, his Honour gave the same classification of seriousness to the offences in question. In that respect he said, “the offences in Count 2, 3, 4 and 5 are, in my opinion, objectively serious but fall below the mid-range of objective seriousness for such offences”. I accept the submission on behalf of the Crown that there is good reason to accept that his Honour did take into account the wrong maximum penalty. Accordingly, I consider that Ground 1(a) has been made out.
Ground 1(b): Error in taking Form 1 matters into account when dealing with Count 2 where the Form 1 nominated Count 3 not Count 2 as the principal offence
It was submitted on behalf of the applicant:-
“28.In dealing with the Form One matters his Honour stated:-
‘I formally attach the two matters on the Form One to the offence of assault occasioning actual bodily harm.’ (ROS 8.10-9.1)
29.An examination of the Form One shows that the applicant asked that the matters on the Form One be taken into account when dealing with an offence of Assault With Intent to Rob in Circumstances of Aggravation (Use Corporal Violence) concerning the victim HR and particularised as Matter (3) in the Crown’s statement of facts.
30.The applicant has therefore been sentenced for this offence in a manner that is inconsistent with what he consented to, and also inconsistent with what was agreed to by the Crown.”
The Crown correctly, observed that, taking the Form 1 matters into account (erroneously) in respect of Count 2, no doubt partly explains the reason why his Honour imposed the sentence he did in respect of that count. I accept the submission made that the sentence in relation thereto was wrongly increased by taking those matters into account.
Accordingly Ground 1(b) has been made out.
Ground 1(c): Failing to give proper effect to the special circumstances found
It was submitted on behalf of the applicant:-
“31.His Honour considered the question of special circumstances and stated:-
‘The offender’s efforts to control his drinking and his need for ongoing rehabilitation in this regard I consider to be a special circumstance enabling me to vary the statutory non-parole ratio.’ (ROS 7.2)
32.The overall effective sentence is one consisting of an effective non-parole period of three and a half (3½) years and a total term of four and a half (4½) years imprisonment.
33.The overall effective non-parole period is therefore 77.8% of the overall effective term. This suggests that his Honour has either:-
(i)Given effect to special circumstances on the basis stated in the Remarks on Sentence but failed to consider the effect of the accumulation of sentences; or
(ii)Given effect to special circumstances on the basis of accumulation of sentences only and failed to give effect to the basis for a finding of special circumstances in the Remarks on Sentence.
34.The appellant submits that either of the above two errors is possible, but asserts that the first would appear to be the more likely of the two, given his Honour’s Remarks on Sentence.”
In the appellant’s submissions, authorities of this Court are relied upon which, in effect, provide justification for a finding of special circumstances based upon an accumulation of sentences: see Regina v Simpson (1992) 61 A Crim R 58. The observations in Regina v Phan [2007] NSWCCA 42 per Simpson J at [25] to [27] (Howie and Buddin JJ agreeing) noted the role of special circumstances, stating:-
“[25]… the principal purpose and effect (with an exception to which I will in a moment refer) of a finding of special circumstances is to give the offender the benefit of a shortened non-parole period, with a corresponding extension of the balance of term …
…
[27]The exception to which I referred arises when a finding of special circumstances is made in the context of sentencing an offender for multiple offences, to accumulate or partially accumulate terms. Such a process can distort the statutory proportions. A judge who expressly intends to maintain the statutory proportions in the overall sentence may therefore vary the proportions of individual sentences in order to restore the statutory proportions.” (emphasis added)
As observed in the written submissions for the applicant (paragraph [37]), both the relevant authorities and the terms of s.44(2) of the Crimes (Sentencing Procedure) Act 1999 require a court to record its reasons for finding special circumstances. In the event of there being cumulative sentences, the particular basis or combinations of bases for a finding of special circumstances should be recorded.
It is necessary to refer to the facts and findings made concerning special circumstances. The applicant was aged 19 years and 8 months as at the date of the offences. He was affected by alcohol at the time of committing them and he was then on two bonds for having assaulted the driver of another vehicle with whom he had had an accident and for assaulting a police officer who attended the scene of the accident.
The sentencing judge referred to the basis for making a finding of special circumstances in paragraph 31 of his remarks on sentence. That paragraph has been extracted in paragraph [46] above.
As earlier noted, all sentences imposed for the individual counts involved fixed terms of imprisonment (except Count 2). The sentence for Count 2 of a head sentence of 3 years’ imprisonment with a non-parole period of 2 years’ imprisonment involved a ratio of 66.7%. The submissions for the applicant correctly observed that the finding of special circumstances was not translated to the overall or aggregate sentence of a head sentence of 4 years and 6 months with a non-parole period of 3 years and 6 months (a ratio of 77.8%). The question is whether the sentencing judge intended that outcome. The difficulty is his Honour did not say what he intended.
As the Crown observed, to achieve the result the applicant contends for would involve a restructuring of other sentences.
It was argued for the applicant that the sentencing judge had, in fact, intended that the finding of special circumstances be reflected in the overall sentence but that his Honour had simply overlooked the effect structuring of the sentences had had on the final result.
The Crown contended that there were reasons why the sentencing judge did not make the oversight asserted. These were:-
(1)The fact that special circumstances were found, did not mean that the sentencing judge was required to vary the overall statutory ratio. He was not obliged to vary the overall non-parole period simply because the ratio was not less than 75%.
(2)There was no express statement of intention to achieve an overall non-parole period representing less than 75% of total term.
(3)The sentencing judge reserved his decision on sentence. One matter foremost in mind would have been the overall sentence and non-parole period his Honour intended to impose. The remarks on sentence at p.8.4 reveal that his Honour was fully conscious of the ingredients of the total sentence and their relationship to each other.
(4)As noted in Regina v Carter [2003] NSWCCA 243 at [20], offenders cannot expect to have a non-parole period reduced to facilitate their rehabilitation unless there are significant positive signs which show that, if allowed a longer period on parole, rehabilitation is likely to be successful. In the present case, that was said to have been only a mere possibility. The applicant, it was also noted, had re-offended after the subject offences. Having regard to the criminality involved in all five offences, the Crown’s contention was that no lesser overall sentence than a non-parole period of 3 years and 6 months was warranted.
The sentencing judge earlier in his remarks on sentence (p.6) said that rehabilitation and the applicant’s age (20 years) must play an important part in setting an overall sentence. However, the only specific circumstances relied upon by his Honour for finding special circumstances were the applicant’s efforts to control his drinking and his need for ongoing rehabilitation without any assessment as to the applicant’s prospects for a successful outcome. The circumstances relied upon for finding special circumstances were far from compelling.
It is, as I have indicated, impossible to be sure as to what the sentencing judge had in mind in finding special circumstances. It is possible that his Honour may have intended that the finding of special circumstances was to be the basis for varying the overall statutory ratio. If that was his intention then the sentences imposed by his Honour failed to achieve that outcome. There is, however, no clear or sound basis for deciding what his Honour intended. Before concluding of this issue, I consider that the matter of special circumstances is best dealt with in the context of the question of re-sentencing by this Court. Accordingly, I will return to the issue of that point.
Ground 1(d): Imposing a sentence that was manifestly excessive
In relation to this ground it was argued for the applicant that the discount of 25% for the early plea of guilty meant that the notional staring point was 4 years’ imprisonment in the context of a maximum penalty of 5 years’ imprisonment.
It was submitted that, having regard to the injuries of the victim (HR), who suffered a swollen and bleeding nose as a result of a single punch, the objective seriousness of the matter was comfortably below the mid-range but that the notional starting point was consistent with an offence well above the mid-range of objective seriousness.
The Crown’s submissions do not, in terms, address the question of the objective seriousness of Count 2 in isolation from the other sentences. The Crown raised the following matters that are said to have fundamental to the sentencing in relation to all counts:-
(1)A failure by the sentencing judge to properly structure the sentences imposed.
(2)A failure by the sentencing judge to undertake a proper assessment of the seriousness of each offence in accordance with Pearce v The Queen (1998) 194 CLR 610.
The Crown’s contention was that the sentences imposed in respect of Counts 1, 3, 4 and 5 or either one of them, were manifestly inadequate.
Before turning to consider the Crown’s submissions in relation to each of these matters, I will deal, as a separate issue, with the question of the objective seriousness of each offence.
Errors in assessment of objective seriousness of the offences in Counts 2 and 5
The Crown conceded two errors by the sentencing judge, as earlier discussed, in respect of Count 2, namely:-
(1)Error as to the maximum penalty for the offence, assault occasioning actual bodily harm, in stating that the sentencing judge carried a maximum penalty of 20 years’ imprisonment.
(2)Error by the sentencing judge in taking into account when sentencing the applicant for Count 2, the Form 1 matters, one of which was equally, if not, more serious than Count 2 itself. As noted above, the Form 1 had asked that the matters on it be taken into account when the applicant was sentenced in respect of Count 3, assault with intent to rob in circumstances of aggravation (use corporal violence) re victim HR.
In relation to the second error, it was submitted that the higher sentence imposed for Count 2 than certain other offences “… can be explained to a certain extent by the fact that it was enhanced by erroneously taking into account the Form 1 matters … one of which was equally, if not more serious, than Count 2 itself …”.
In circumstances where the sentencing judge imposed a substantial term of imprisonment in respect of Count 2 but that that sentencing was afflicted with two significant errors, the sentence imposed with respect to that offence cannot be allowed to stand. The Crown properly conceded the Form 1 point and with respect correctly stated that the sentencing judge “… gave no proper attention to the maximum penalties at all or to a proper assessment of the individual seriousness of each offence but focused on the fact as he said ‘[a]ll offences occurred in the one course of conduct’”.
It is apparent from the series of sentencing errors to which reference has been made above that this Court must intervene and re-sentence the applicant in respect of Count 2.
Additionally, the assessments made by the sentencing judge in terms of the relative objective seriousness of the offence constituting Count 2 and that constituted in Count 5, for reasons discussed below, were clearly wrong.
The erroneous assessments made of the objective seriousness of those two offences and the relative seriousness of each are relevant to Ground 1(d) of the Grounds of Appeal and to Ground 4 in the Crown’s Notice of Appeal (“His Honour erred in failing to undertake a proper assessment of the seriousness of each offence in accordance with Pearce v The Queen (1998) 194 CLR 610”).
The agreed statement of facts indicates that the offence in respect of Count 5 (involving numerous acts of punching and kicking the victim by one and later more than one members of the group) was objectively the most serious of the five offences charged. And yet, the sentence imposed for count 5 was a fixed term of only 12 months imprisonment. The applicant was sentenced for what was clearly the less serious offence charged in Count 2, as earlier indicated, to a non-parole period of 2 years’ imprisonment with a balance of term of 12 months. The sentences imposed in respect of Counts 2 and 5 were, in my opinion, plainly wrong. I will develop the reasons for that conclusion below.
Crown appeal
The Crown appeals under s.5D of the Criminal Appeal Act against the sentences pronounced by the District Court in respect of Counts 1, 2, 3, 4 and 5.
The grounds relied upon are as follows:-
“Ground 1: His Honour erred in failing to take into account the Form 1 matters when imposing the sentence in respect of Count 3.
Ground 2: His Honour erred in failing to properly take into account both the applicant’s past criminal offending and his offending between committing the present offences and sentence.
Ground 3: His Honour erred in failing to properly structure the sentences imposed.
Ground 4: His Honour erred in failing to undertake a proper assessment of the seriousness of each offence in accordance with Pearce v The Queen (1998) 194 CLR 610.
Ground 5: The sentences imposed in respect of Counts 1, 3, 4 and 5, or any one of them, were manifestly inadequate.”
Ground 1: His Honour erred in failing to take into account the Form 1 matters when imposing the sentence in respect of Count 3
I have dealt with this matter above. It is clear that his Honour did make the error referred to in Ground 1.
Ground 2: His Honour erred in failing to properly take into account both the applicant’s past criminal offending and his offending between committing the present offences and sentence
The Crown, in its written submissions, referred to the fact that the applicant was, at the time of the offences, on bonds already referred to in the earlier discussion of the issues arising on the application for leave to appeal.
The Crown referred to the sentencing judge’s remarks to the effect (remarks on sentence, p.7.1):-
“[t]he offender has a minor criminal record but it does include a common assault.”
His Honour also noted the fact that the applicant was on two bonds at the relevant time. The Crown observed that the reference to “a” common assault by the sentencing judge was erroneous, in that there had been two common assaults.
The Crown also referred to the fact that there was “a common theme of alcohol playing a part in his past and present offending”. The Crown additionally relied upon the fact that the subject offences occurred only four months after the bonds were imposed and that the sentencing judge had made no mention of the fact that the applicant had offended after the present offences. On 11 August 2008, he was charged with behaving in an offensive manner in/near a public place/school for which he received a fine in the Woy Woy Local Court on 29 September 2008. Although the Crown acknowledged that that offence was far from a serious one, offences committed after the date of the commission of the offence for which an offender stands for sentence may be taken into account for the purpose of deciding whether “some leniency should be extended to the applicant in the light of his youth” (per Street CJ in Regina v Hitchins (1958) 75 WN 75 at 76). The Crown additionally noted that it was not for the purpose of imposing a heavier sentence: Bingul v Regina [2009] NSWCCA 239 at [69] per Allsop P.
The Crown also observed that subsequent offending was a relevant matter to an offender’s remorse and prospects of rehabilitation: Regina v Janceski (2005) 44 MVR 328; [2005] NSWCCA 288 at [38].
Whilst I accept that the sentencing judge did not appear to have given particular consideration to the matters that the Crown has raised, I do not consider that Ground 2, in itself, provides a basis for this Court intervening.
Ground 3: His Honour erred in failing to properly structure the sentences imposed
The Crown noted that the offences of violence were committed against four different victims. In addition, the Form 1 matter of affray included the victim, Mr Ward. The Crown observed that the fact that, as the sentencing judge stated “[a]ll offences occurred in the one course of conduct” was one consideration, but there were a number of others of greater importance. Reference was made, in this respect, to the observations of Howie J (with whom McClellan CJ at CL and Harrison J agreed) in Regina v Jarrold [2010] NSWCCA 69 at [69] as follows:-
“On numerous occasions this Court has explained that sentences are not to be made concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct: see generally Regina v XX [2009] NSWCCA 115. The question to be asked is, can the sentence of one offence encompass the criminality of all the offences?”

The Crown further noted (written submissions (paragraph [32]) that the sentences imposed in the present case in respect of the offences against all victims (except for Count 2) were concurrent with the common commencement date of 26 August 2009 and yet the offences were separate and distinct, involving different victims.
It was, accordingly, argued on this basis that this was an erroneous exercise of the sentencing discretion by the sentencing judge. The failure to accumulate those sentences, at least partially, failed to acknowledge the harm that was done to the individual victims and created the impression that there was very little difference between the effective penalty for one offence and the effective penalty for multiple offences. I, with respect, entirely agree with those observations made by the Crown. As the Crown contended, a proper approach to structuring of the sentences would have resulted in at least the overall sentence that was actually imposed. The inference in the submissions is that a proper approach to sentencing involving an appropriate accumulation of sentences would more than likely have resulted in the applicant having been sentenced to a much longer total aggregate sentence for the five offences. It is apparent, in my opinion, that a proper approach to sentencing in this case would more likely than not have produced that outcome.
Ground 4: Failing to undertake a proper assessment of the seriousness of each offence in accordance with Pearce v The Queen
The Crown noted that the sentencing judge imposed the same sentence, involving a fixed term of 18 months, in respect of Counts 3, 4 and 5. Each of the counts involved offences contrary to the provisions of s.95 of the Crimes Act. As the Crown observed, increasing violence and seriousness occurred as each offence took place. I agree with the Crown submission that, at the very least, it can be said that Count 5 was more serious than all of the other offences both in terms of the violence involved and the injury suffered by Jarrad Ward.
As the Crown stated in its submissions, “In these circumstances, the same sentence imposed for each is hard to justify”: Crown’s written submissions, paragraph [33].
I further agree with the Crown’s observation concerning the approach taken to an assessment of the comparative objective seriousness of the offences:-
“35.The Judge’s classification of the various offences (at ROS 7.7) – ‘fall below mid-range’, ‘well below the mid-range’ – were provided in a vacuum without explaining those factors he found important in coming to those conclusions.”
Ground 5: The sentences imposed in respect of Count 1, 3, 4 and 5 or either one of them, were manifestly inadequate
As earlier noted, the applicant was on two bonds for previous assaults. The absence of a weapon, it was contended by the Crown, was balanced in respect of each offence by the fact that the applicant did not effectively give his victims a chance of handing over the valuables before physically assaulting them. In respect of Count 4 and 5, actual physical violence was used and injury resulted. The Crown referred to Regina v Ferenc [2009] NSWCCA 126 at [23].
In support of its contention that the sentences imposed in respect of Counts 1, 3, 4 and 5 were manifestly inadequate, the Crown referred to the Regina v Henry (1999) 46 NSWLR 346 guideline (which incorporates a discount of about 10%). The guideline has general applicability, with appropriate adaptation, such as the absence of a weapon, to offences of robbery with the same maximum penalty as for armed robbery. It was contended that a total non-parole period of 18 months for three offences, by comparison to the Henry guideline, indicates error. I agree with this analysis and conclusion.
The Crown’s challenge to the sentence in respect of Count 1 was made upon the basis that it involved an invasion of a person’s residence (in this case a hotel room), a serious matter.
The indictable offence pleaded was one which involved an offence of violence with no attenuating mental element. The Crown observed that no consideration, or proper consideration, appears to have been given to this factor. I agree
Mr Dennis, on behalf of the applicant, properly conceded that the sentencing judge had erred in assessing the objective seriousness of Count 2 at a higher level than that of Count 5.
The High Court in Pearce (supra) at 623 emphasised the punishment to be exacted should reflect what the offender has done and that “… a Judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality”.
Had that principle been applied in the present case, assessment of the objective seriousness of Count 5 would, in particular, have had regard to the following facts:-
•Two of the group took Mr Ward by the arms and he was then punched four of five times in the body.
•Mr Ward was then forced to the floor and then punched and kicked by the group.
•A little later, Mr Ward was again punched several times by others in the group.
•In consequence of the numerous assaults, Mr Ward sustained a bruised forehead, a swollen and bleeding nose, swelling to his right rear skull, a red eye from a burst blood vessel, bleeding lips, three chipped teeth and sore ribs.
I agree with the Crown’s submission as to the objective seriousness of the offence constituting Count 5.
It is unnecessary here to repeat the facts concerning Count 2 other than to say a recital of relevant facts indicates that, though serious, the offence was far short of the level of objective seriousness of the offence the subject of Count 5.
The imposition of a substantially greater term of imprisonment in respect of Count 2 and a much lesser sentence in respect of Count 5 manifests error.
Re-sentencing
The abovementioned sentencing errors having been established, this Court is entitled, and for reasons discussed, must, in my opinion, intervene and re-sentence the applicant. In the circumstances of the case, it is accepted by both the applicant and the respondent that this Court should intervene. The difference between the parties is the extent of any such intervention. I have noted at the outset that the applicant contends that the re-sentencing should be confined to the sentence imposed in respect of Count 2. That, with respect, would not, in my opinion, represent a proper approach.
It is clear that the sentences in respect of each count should be set aside and this Court should re-sentence the applicant in respect of the five counts.
In oral submissions, counsel for the Crown contended that there was no basis for a finding of special circumstances and that a period of one year would be sufficient to ensure that the applicant is properly supervised.
I have earlier set out the basis upon which the sentencing judge made a finding of special circumstances. There is no evidence as to whether the applicant does have good prospects of rehabilitation and, in all the circumstances of the case, including the applicant’s offending, I do not consider this is a case in which such a finding should be made. Accordingly, I do not propose to make a finding of special circumstances.
I propose the following orders:-
(1)The sentences imposed by the District Court on 26 August 2009 be set aside.
(2)That the applicant be re-sentenced in respect of Counts 1, 2, 3, 4 and 5 as follows:-
(a)In respect of the offence under s.114(1)(d) of the Crimes Act 1900 (Count 1 – enter building with intent to assault), the respondent is sentenced to a fixed term of 9 months imprisonment to commence on 26 August 2009 and to expire on 25 May 2010.
(b)In respect of the offence under s.59(1) of the Crimes Act (Count 2 – assault occasioning actual bodily harm), the respondent is sentenced to a fixed term of 12 months imprisonment to commence on 26 August 2009 and to expire on 25 August 2010.
(c)In respect of the offence under s.95(1) of the Crimes Act (Count 3 – aggravated assault with intent to rob), the respondent is sentenced to a fixed term of 6 months imprisonment to commence on 26 February 2010 and to expire on 25 August 2010.
(d)In respect of the further offence under s.95(1) of the Crimes Act (Count 4 – aggravated assault with intent to rob), the respondent is sentenced to a fixed term of 6 months imprisonment to commence on 26 August 2009 and to expire on 25 February 2010.
(e)In respect of the offender under s.95(1) of the Crimes Act (Count 5 – aggravated robbery), the applicant/respondent is sentenced to a non-parole period of 2 years and 6 months to commence on 26 August 2010 and to expire on 25 February 2013 with a balance of term of 12 months to commence on 26 February 2013 and to expire on 25 February 2014.
(3)The overall aggregate sentence is one of 4 years and 6 months with overall non-parole period of 3 years and 6 months.
(4)Accordingly, the first date upon which the applicant/respondent will be eligible for release on parole will be on 25 February 2013.
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LAST UPDATED:
9 December 2010