Croaker v R

[2008] NSWCCA 232

Reported Decision: 190 A Crim R 15

New South Wales

Court of Criminal Appeal

CITATION:	Croaker v R [2008] NSWCCA 232
HEARING DATE(S):	30/9/08
JUDGMENT DATE:	7 November 2008
JUDGMENT OF:	Bell JA at 1; Latham J at 33; Fullerton J at 34
DECISION:	1. Grant leave to appeal; 2. Allow the appeal and quash the sentence imposed in the District Court and in lieu thereof order that: The applicant is sentenced to a non-parole period of two years to date from 18 November 2006 and to expire on 17 November 2008, with a balance of term of eight months from 18 November 2008. Direct the applicant’s release to parole at the expiration of the non-parole period.
CATCHWORDS:	SENTENCE - De Simoni error - repeat domestic violence offence
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 (NSW)
CASES CITED:	Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 R v Astill (1992) 63 A Crim R 148 R v Atonio [2005] NSWCCA 200; (2005) 154 A Crim R 183 R v Burton [2008] NSWCCA 128 R v Cocking [1999] NSWCCA 311 R v De Simoni [1981) HCA 31; (1981) 147 CLR 383 R v Fernando (1992) 76 A Crim R 58 R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 R v Millar [2005] NSWCCA 202 R v Ngati [2008] NSWCCA 3 R v Petrie [2003] NSWCCA 208; (2003) 141 A Crim R 396 R v Price [2005] NSWCCA 285 R v Timu [2002] NSWCCA 421 R v Tory [2006] NSWCCA 18 Sharpe v R [2006] NSWCCA 255
PARTIES:	Geoffrey Matthew Croaker (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/00004940
COUNSEL:	Mr N Steel (Applicant) Ms L Wells (Crown)
SOLICITORS:	S O'Connor (Applicant) S Kavanagh (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/61/0020
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	2/3/07

CCA 2007/00004940

BELL JA
LATHAM J
FULLERTON J

Friday 7 November 2008

Geoffrey Matthew CROAKER v R

Judgment

1 BELL JA: This is an application for leave to appeal against the severity of a sentence imposed on the applicant in the District Court on 2 March 2007. The applicant pleaded guilty to aggravated break, enter and commit serious indictable offence (assault occasioning actual bodily harm) contrary to s 112(1) of the Crimes Act 1900 (NSW). He asked the sentencing judge to take into account on a Form 1 two offences of malicious damage, which were committed at the same time as the subject offence. His Honour imposed a sentence of three years’ imprisonment, comprising a non-parole period of two years and three months and a balance of sentence of 9 months. The sentence commenced on 18 November 2006 and the non-parole period will expire on 17 February 2009.

2 The applicant broke into the home of his former de facto partner and assaulted her. The two had lived together for approximately four years. The relationship came to an end in mid-2004 as the result of the applicant assaulting her. She moved to Orange and there was no contact between them until around July 2006, when the applicant also moved to Orange. Thereafter, they had seen one another as friends on occasions. There had not been a resumption of the domestic relationship.

3 At about 5 am on Saturday 18 November 2006 the complainant heard knocking on her front door. She looked through the curtains and saw the applicant. She called out to him to go home and he said that he wanted to be let in. She refused and returned to bed. He forced the front door off its hinges and entered the house saying, “where the fuck have you been? I’ve been ringing you all night”. The complainant ran from her bedroom towards the lounge room to call the police. The applicant pushed her and she fell backwards onto the lounge suite. He lifted a steel dining chair above his head and threw it at her. It struck the upper part of her body. She stood up and ran towards the front door. He picked up the chair and threw it at her again. It missed on this occasion and it landed on a coffee table, breaking a small window near the door. The damage to these items was the subject of the two offences that were taken into account on the Form 1.

4 The complainant ran outside, where she found her neighbour, Mr Lord, who had been wakened by the yelling and had come out of his house. The applicant abused and pushed Mr Lord. After this, he called the police on his mobile phone, telling them, “hurry and get up here, I could murder someone”. The police attended shortly afterwards and found the applicant standing in the middle of the roadway. He was apparently under the influence of alcohol. He was arrested and taken to the Orange Police Station. He admitted kicking open the door, but he denied throwing the chair at the complainant.

5 The applicant was initially charged with the aggravated form of the offence (the circumstance of aggravation relied upon being the malicious infliction of actual bodily harm on the complainant). At the sentence hearing, the Crown Prosecutor and the applicant’s counsel proceeded upon the assumption that the applicant had been committed for sentence in respect of the aggravated offence. At the conclusion of the hearing, the matter was stood over to 1 March for sentence. On that day, his Honour stood the proceedings over to the following day, observing that he had not had time to prepare all that he wished to say. On 2 March, his Honour drew to the attention of counsel that the applicant had been committed for sentence for the lesser offence under s 112(1). He stood the proceedings down to give the parties an opportunity to consider the matter. His Honour pronounced sentence later that day.

6 In his remarks on sentence, his Honour noted the following matters. The applicant was aged 29 years at the date of sentence. He is of Aboriginal descent. He was born in Wee Waa and spent most of his childhood and teenage years in Condobolin. None of the factors referred to in R v Fernando (1992) 76 A Crim R 58 were present in his childhood and teenage years. He completed Year 12 at Condobolin High School and obtained his Higher School Certificate. After leaving school he had been employed as a labourer in an asbestos removal business. He enjoys good physical and mental health.

7 His Honour commented that the applicant is a “binge drinker”, observing that he did not know the extent to which this had had an impact on the applicant’s lifestyle. He found that the applicant had been significantly under the influence of alcohol at the time of the offences. The offence was committed in a context in which his Honour accepted the applicant’s account that he and the complainant had rekindled their relationship, albeit that they had not resumed cohabitation. The offence was unplanned and stemmed from the applicant’s belief that the complainant had been unfaithful to him.

8 His Honour referred to the applicant’s criminal record, which contained 22 entries, four in the Children’s Court and 18 in the Local Court. His Honour noted that he had four convictions for assault occasioning actual bodily harm, one for violent disorder and three convictions for malicious damage to property.

9 His Honour assessed the objective gravity of the offence in this way:

“I consider that the offender committed a very serious offence in kicking open the door of [the complainant’s] home, in entering into the home and, when inside, assaulting [the complainant] and damaging property. Although [the complainant] was injured when hit by the chair, the injury that she suffered was not serious and I assume, in the absence of being told to the contrary, that she has recovered from that injury. Also, although a windowpane was broken and a coffee table was damaged, I assume, in the absence of being told to the contrary, that the windowpane was replaced and the coffee table was repaired at a relatively small cost. I accept that, although I consider the offence to be very serious, the offence was unplanned, being committed by a drunken man, on the spur of the moment, after [the complainant] had refused to open the front door to him, after he had banged upon it.” (ROS [22])

10 His Honour regarded as significant the fact that this offence was not the first assault committed by the applicant on the complainant.

11 His Honour went on to note the purposes of sentencing that are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) and then to refer to the aggravating and mitigating factors that are set out in s 21A of that Act. He said this:

“[25] I consider, having regard to what I have said about the offence and the offender, that the only aggravating factor is that lettered (c), because, in the relevant circumstances, the chair thrown by the offender at [the complainant] was a weapon, in s 21A subs (2) of the Crimes (Sentencing Procedure) Act, and that the mitigating factors are those lettered (a), because the injury was not substantial; (b), because the offence was not planned; and (k), because the offender has pleaded guilty, in subs (3) of the Section.” (ROS [25])

12 His Honour found that the applicant’s plea of guilty evidenced some remorse. He was not able to make an assessment of the applicant’s prospects of rehabilitation. He observed that the applicant’s history did not inspire confidence that he would not re-offend. His Honour considered that personal and general deterrence were to be given emphasis in sentencing the applicant for this offence. He discounted the sentence by 25 per cent to reflect the early plea of guilty.

13 The sentence was challenged on three grounds:

1. The learned sentencing judge has erred in finding as an aggravating factor on sentence that the offence involved the actual use of a weapon.
2. The head sentence and non-parole period are manifestly excessive.
3. The learned sentencing judge has erred in finding that there was not any special circumstance which warranted or justified a reduction in the non-parole period.

14 As his Honour noted, the applicant’s plea of guilty was to the unaggravated offence provided by s 112(1). Circumstances of aggravation, which would admit of conviction for the offence provided by s 112(2), include that the alleged offender is armed with an offensive weapon, or instrument (s 105A(1)). His Honour took into account as a factor aggravating the offence that the steel dining chair had been used as a weapon. The Crown acknowledged that in so doing his Honour breached the principle explained in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383, in that he took into account as a circumstance of aggravation a matter which would have warranted the applicant’s conviction for the more serious offence. The Crown submitted that the Court should not intervene, since the error was of slight, if any, significance to the overall sentence: Sharpe v R [2006] NSWCCA 255 per Johnson J (McClellan CJ at CL and Latham J agreeing) at [50].

15 Mr N Steel, who appeared for the applicant, referred to the transcript of the submissions that were made at the sentence hearing on 22 February 2007. On that occasion, in the course of discussing the factors in s 21A, his Honour commented, “there was no weapon” (T’cpt 14.44). In Mr Steel’s submission, it was not open to conclude that his Honour had made merely passing reference to the use of the chair as a weapon in his assessment of the objective gravity of the offence. It was plain that, when he came to review the matter, his Honour had concluded, contrary to his initial view, that the use of the chair was a circumstance of aggravation. Mr Steel pointed out that the applicant’s counsel had not addressed submissions on this issue because his Honour’s provisional view was favourable to the applicant.

16 His Honour was sitting at Orange. The probability is that he did not have the benefit of a transcript when he came to review the submissions and prepare his remarks on sentence. While there is force to the Crown Prosecutor’s submission that his Honour’s remarks do not point to him paying additional regard to the use of the chair, in light of the history to which I have referred, it would not be appropriate to treat the reference to the matter as of little practical significance: cf R v Atonio [2005] NSWCCA 200; (2005) 154 A Crim R 183 per Hislop J (James J and Hall J agreeing) at 188 [17]. Rather, the error should be regarded as a material one, which affected the sentence his Honour ultimately imposed : see Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284.

17 In light of the error, it is necessary for this Court to consider whether a lesser sentence is warranted in law: s 5(1) of the Criminal Appeal Act 1912 (NSW); R v Astill (1992) 63 A Crim R 148; R v Cocking [1999] NSWCCA 311. In the Crown’s submission, no lesser sentence is warranted, since this was a repeat domestic violence offence: R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179; R v Burton [2008] NSWCCA 128 at [95].

18 Mr Steel submitted that the Court should intervene to reduce the sentence, which he contended was, in any event, manifestly excessive.

19 Mr Steel’s submission drew on the statistics maintained by the Judicial Commission of New South Wales for both the offence under s 112(1) and the aggravated offence. In the period between February 2003 and September 2007, out of 274 cases in which persons pleaded guilty to the aggravated offence, the median non-consecutive term of the sentence was three years. The statistics for the unaggravated offence, comprising all offenders, show that in the period October 2000 to September 2007 the median non-consecutive term of sentence was three years. The median non-parole period was 18 months, with a third of all cases resulting in a non-parole period of one year.

20 Mr Steel also sought to make good the submission of manifest excess by reference to a schedule of sentences imposed in a number of cases which were said to be broadly similar to the present: R v Timu [2002] NSWCCA 421; R v Petrie [2003] NSWCCA 208; (2003) 141 A Crim R 396; R v Millar [2005] NSWCCA 202; R v Price [2005] NSWCCA 285; R v Tory [2006] NSWCCA 18; R v Ngati [2008] NSWCCA 3. In each of these cases, the offender was convicted of the aggravated offence, which carries a maximum of 20 years’ imprisonment.

21 In Timu, the offender pleaded guilty to the aggravated offence involving the infliction of actual bodily harm. He had forced entry into the home of a former girlfriend and assaulted her, pushing her head against a wall, slapping and punching her to the face and stomach. He was sentenced to a term of two years and three months’ imprisonment with a non-parole period of nine months. He was aged 32 years and, apart from a minor juvenile record, he had an unblemished record. The sentencing judge considered his remorse was genuine and that there was no prospect of his re-offending.

22 In Petrie, the offender broke into the complainant’s home disguised with a balaclava and attacked two victims with a jemmy. He was subdued by a third resident. He had a lengthy record of criminal offending, but he had been alcohol and crime free in the six years before this offence. He was sentenced to a term of five years’ imprisonment, with a non-parole period of three years. His appeal was allowed on the basis that an insufficient discount had been awarded for his plea of guilty. This resulted in a sentence of four years and six months with a non-parole period of two years.

23 In Millar, the offender broke into a unit, where he assaulted his daughter’s de facto partner, punching him to the head. The offender had a criminal record, but not for offences of violence. His appeal was allowed and a sentence of 18 months’ imprisonment with a non-parole period of ten months was imposed in this Court. It was held in that case that the offender had acted under provocation and stress in that his daughter’s de facto partner had committed continuing assaults against her. In this Court, the offence was characterised as being considerably below the mid-range of objective criminality.

24 In Price, the offender broke into domestic premises and assaulted the male occupant with a wooden stick. His appeal was allowed and a sentence of 16 months was imposed with a non-parole period of nine months. The offence was characterised as being “quite a way” below the mid-range of objective criminality and the applicant presented an impressive subjective case.

25 In Tory, the two offenders broke into premises, where the male occupant was punched and assaulted with a golf stick. The offenders were angered by the asserted improper relationship between the victim and their 14 year-old sister. They suffered a temporary loss of control and had entered the premises with the intent of frightening the victim. There was impressive evidence of their good character. The sentencing judge imposed a two-year good behaviour bond. A Crown appeal against the leniency of this sentence was allowed; suspended sentences were imposed in recognition of the double jeopardy involved in a successful Crown appeal. The offence was characterised as falling significantly below the mid-range of objective criminality.

26 In Ngati, the offender broke into the home of a neighbour and assaulted the occupant. The incident occurred in the context of an earlier altercation between the complainant and a friend of the offender’s son. It was a spontaneous offence. The offender had no significant criminal record. The offence was found to fall below the mid-range of objective criminality.

27 I do not consider that the sentence imposed by his Honour can be said to have been manifestly excessive. The individual cases relied upon by the applicant, while instances of the aggravated offence, are to be distinguished from the present case save, perhaps, for Timu. Generally, dealing with the statistical material, it is to be borne in mind that this offence was of more objective seriousness than many s 112(1) offences in which the serious indictable offence particularised is stealing. The statistical material does not, in any event, support a conclusion that the sentence falls outside the range for such offences. This was an offence of domestic violence that occurred in a context in which the complainant had moved away from the applicant after an earlier assault upon her. She was in the security of her own home when he broke in and again assaulted her.

28 An affidavit affirmed by the applicant on 22 September 2008 was received on the basis that it would be taken into account in the event of consideration of re-sentencing. The applicant has served 14 months at the Yetta Dhinnakkal Correctional Centre (Yetta) near Brewarrina. He explained that Yetta had been full of local boys and he had found it hard to settle in. Nonetheless, he obtained good work reports from the officers and he has acquired a number of useful work skills. He has also undertaken a course in alcohol awareness. It is his intention to remain alcohol free after his release. Around May 2008 he was moved to a correctional facility on the mid-north coast. He is working as a sweeper at this institution and he feels more comfortable, although, since his family live in Condobolin, he has not been receiving any visits. Being in gaol has made him think about his life. He wishes to lead a normal life on his release.

29 There were testimonials in evidence from Mr Solomon, who has known the applicant for 15 years and Mr Ingram, a senior caseworker with Ngaaminya Guunji, who has known him for a similar length of time. Each spoke well of the applicant. They described him as a person who enjoyed the respect of his peers. The applicant gave evidence before the sentencing judge. It is to be noted that his Honour remained unconvinced of his prospects of rehabilitation, and of the likelihood that he would not re-offend. The evidence of the applicant’s progress in the period that he has been in custody does suggest that he has prospects of rehabilitation.

30 It was submitted that his Honour erred in failing to find special circumstances to depart from the statutory proportion between the non-parole period and the head sentence. In particular, Mr Steel pointed to the evidence of the applicant’s willingness to undergo alcohol rehabilitation at the Weigelli Centre’s Alcohol and Other Drugs Rehabilitation Program. Mr Steel also relied on the circumstance that this is the applicant’s first lengthy sentence of imprisonment. The applicant is a 30 year-old man who has a considerable acquaintance with the criminal justice system. He has been released on bonds on a number of occasions conditioned that he accept supervision, including with respect to drug and alcohol rehabilitation.

31 Mr Steel submitted that there was no evidence that the applicant had in fact received counselling on any of these earlier occasions. The applicant’s only evidence on the topic was to agree that he had made contact with the Weigelli Centre and that he had been told that he was suitable for their program. As his Honour noted, there was no evidence of the extent of the applicant’s alcohol problem beyond that he is a “binge drinker”. The inference is open that he has not previously taken advantage of opportunities to address his drinking behaviour. In light of his age and his criminal history, I am not persuaded that either his belated willingness to undergo the Weigelli Centre program, or the circumstance that he has not previously served a lengthy sentence of imprisonment, justify a finding that there are special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act.

32 Having regard to the patent error identified above, and the applicant’s favourable progress in custody, I consider that it is appropriate to impose a sentence that is somewhat shorter than that fixed by the primary judge. In coming to this conclusion I have regard to the purposes of sentencing and to the factors to which s 21A of the Sentencing Procedure Act directs attention. There are no factors of aggravation. The mitigating factors are those identified by the sentencing judge. It is necessary that the sentence reflect considerations of general and personal deterrence. I adopt the discount of 25 per cent to reflect the early plea of guilty. I take into account the two offences on the Form 1, which justify a very modest increment in the sentence given the extent to which they are bound up in the commission of the principal offence. For these reasons, the orders that I propose are:

ORDERS

1. Grant leave to appeal;

2. Allow the appeal and quash the sentence imposed in the District Court and in lieu thereof order that:

The applicant is sentenced to a non-parole period of two years to date from 18 November 2006 and to expire on 17 November 2008, with a balance of term of eight months from 18 November 2008. Direct the applicant’s release to parole at the expiration of the non-parole period.

33 LATHAM J: I agree with Bell JA.

34 FULLERTON J: I agree with Bell JA.

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