Curtis v R

[2007] NSWCCA 11

New South Wales
Court of Criminal Appeal

CITATION:	Curtis v R [2007] NSWCCA 11 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	8 November 2006
JUDGMENT DATE:	5 February 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 6; Rothman J at 81
DECISION:	(i) leave to appeal against sentences granted; (ii) appeal allowed, sentences quashed and the applicant re-sentenced - see para 80
CATCHWORDS:	CRIMINAL LAW - sentencing - sentencing remarks - purpose of sentencing remarks - explanation for alteration of sentence - need for economy in sentencing remarks - application to appeal against severity of sentence - five counts - pleas of guilty - use of offensive weapon - assault - intimidation - resist police officer - stab police dog - deliberate act - threaten police - vulnerability of victim - aggravating circumstances - whether sentence manifestly excessive - whether gratuitous cruelty in stabbing dog an aggravating factor - assessment of objective gravity - whether offence in worst category of cases - subjective circumstances - mitigating features - rehabilitation - whether error to regard knifing of dog as gratuitous cruelty - objective seriousness - circumstance of aggravation - starting point for sentence not maximum sentence available - individual sentences not manifestly excessive - extent of accumulation of sentences excessive - re-sentence
LEGISLATION CITED:	Crimes Act 1900, s33B(1) (a), s58, s61, s562AB Crimes (Sentencing Procedure) Act 1999, Part 4, Division 1A, s21A, s44(2)
CASES CITED:	Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Bottin [2005] NSWCCA 254 R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 R v Keen [2004] NsWCCA 86 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168
PARTIES:	Luke Graham Curtis - Applicant Crown - Respondent
FILE NUMBER(S):	CCA 2006/1711
COUNSEL:	C Smith - Applicant P Barrett - Respondent
SOLICITORS:	SE O'Connor - Applicant S Kavanagh - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/2003
LOWER COURT JUDICIAL OFFICER:	Gibb DCJ
LOWER COURT DATE OF DECISION:	6 April 2006

2006/1711

McCLELLAN CJ at CL
SIMPSON J
ROTHMAN J

Monday 5 February 2007

Luke Graham CURTIS v REGINA

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the draft judgment of Simpson J. I agree with the orders which her Honour proposes and generally with her reasons.

2 In my view the sentencing judge erred in regarding the stabbing as an act of gratuitous cruelty. The fact that the police dog was killed was a relevant circumstance of the offence, although the part it should play in the sentencing process is less apparent. The evidence was that the dog was trained to restrain but not physically injure a person the police were seeking to apprehend. Whether such a person would be aware of this I rather doubt. If, when armed with a knife, a person is pursued by a police dog there is a real likelihood that the knife may be used in a manner which causes serious injury to the animal. The pursued person may react in a deliberate manner, as her Honour found, but that action may be motivated, at least in part, by a fear of injury from the dog rather than directed solely to making good an escape.

3 Notwithstanding this matter the other serious elements of the offences which have been identified by Simpson J justify the orders her Honour proposes.

4 I also wish to add to her Honour’s remarks about the form of the sentencing hearing. Remarks on sentence are provided to inform the offender of the sentence to be imposed, and the matters which the sentencing judge considered when arriving at that sentence. The sentencing judge must speak in clear language confined to a statement of matters which justify the particular sentence. The remarks should generally be formulated so that they may be understood by the offender and others present at the court hearing. The transcribed remarks should be able to be appreciated by the ordinary lay reader.

5 Although references to statute may be necessary in order to adequately explain the remarks, references to authority should be confined to a minimum. Lengthy and complex discussions of sentencing principle are generally a matter for the appellate courts which, even then, should strive for clarity and appropriate brevity.

6 SIMPSON J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the District Court on 6 April 2006 following his pleas of guilty to each of five counts on an indictment.

7 The counts, in the sequence in which they appeared on the indictment, were:

(i) use offensive weapon (two knives) with intent to prevent lawful apprehension;
(ii) assault (Stephen Ward);
(iii) intimidate (Stephen Ward) with intent to cause him to fear physical or mental harm;
(iv) intimidate (Wayne Davies) with intent to cause him to fear physical or mental harm;
(v) resist police officer in the execution of his duty.

8 Count 1 was brought under s33B(1)(a) of the Crimes Act 1900 and carries a maximum penalty of imprisonment for 12 years.

Count 2 was brought under s61 of the Crimes Act and carries a maximum penalty of imprisonment for two years.

Counts 3 and 4 were brought under s562AB of the Crimes Act; each carries a maximum penalty of imprisonment for five years.

Count 5 was brought under s58 of the Crimes Act. It also carries a maximum penalty of imprisonment for five years.

9 Gibb DCJ sentenced the applicant as follows:

Count 1:
(use weapon to avoid arrest): a total term of nine years, four months, made up of a non-parole period of seven years, with a balance of term of two years and four months;

Count 2:
(assault): a total term of eight months and seven days, made up of a non-parole period of six months and seven days, with a balance of term of two months;

Count 3:
(intimidate): a total term of one year, five months and 30 days, made up of a non-parole period of 15 months and 15 days, with a balance of term of four years and 15 days;

Count 4:
(intimidate): a total term of one year, ten months and 15 days, made up of a non-parole period of 17 months, with a balance of term of five months and 15 days;

Count 5:
(resist arrest): a total term of one year and 15 days, made up of a non-parole period of nine months and a balance of term of three months and 15 days.

10 The sentence imposed in respect of Count 1 reflected a discount of 18.5% referable to the plea of guilty, in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. Each of the remaining sentences was discounted by 25% on the same basis.

11 Her Honour staggered the commencement dates of the sentences. She specified that the sentence imposed in respect of Count 2 (assault) be the first to commence, on 13 February 2005; that the sentences imposed in respect of Counts 3 and 4 (intimidation) follow, the Count 3 sentence to be wholly cumulative upon the non-parole period of the Count 2 sentence, and commence on 5 October 2006; that the Count 4 (resist arrest) sentence be partially concurrent with and partially accumulated upon the non-parole period of the Count 3 sentence; that the Count 5 sentence likewise be partially concurrent with and partially accumulated upon the non-parole period imposed in respect of Count 4, and commence on 20 June 2007; and the Count 1 (use of offensive weapon to avoid apprehension) sentence also commence on 20 June 2007, and therefore subsume the resist arrest sentence.

12 As a result the total effective term of imprisonment imposed was of 11 years, eight months and six days, consisting of a non-parole period of 9 years, 4 months and 6 days, commencing on 13 February 2005 and expiring on 19 June 2014, with a balance of term of 2 years and 4 months, commencing on 20 June 2014 and expiring on 19 October 2016.

13 The rather unusual selection of figures appears to have been the result of a strictly mathematical application of the sentencing discounts, followed by a similarly strict application of the formula contained in s44(2) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Procedure Act”).

facts

14 All charges arose as a result of a single episode of criminality that took place between 22 and 23 December 2004, continuing over several hours.

15 The applicant lived at an address in Seven Hills, premises he shared with Wayne Davies, the victim of Count 3. Mr Davies suffers from an intellectual impairment. The applicant was friendly with a young woman, Angela Ward (the daughter of Stephen Ward, the victim of Counts 2 and 3). It may be that the two did not share a common perception of the nature or extent of their relationship. Ms Ward and her father lived nearby. At about 7.30 pm on 22 December 2004 Ms Ward went to the applicant’s home to visit. The applicant was not present, but Mr Davies was. Ms Ward stayed and talked to Mr Davies. While she was there the applicant telephoned her. He was clearly intoxicated. He said:

“Do you want to see the kind of person I really am. Two blokes at the pub approached me. I want to chop them up with an axe. I want you to see it so you know what type of person I am.”

16 He arrived at home shortly thereafter. At the same time a friend of his, Kevin Searle, also arrived at his home. The two had both come from the same hotel, but did not arrive together. The applicant spoke to Ms Ward about being a white supremacist. She left the premises.

17 The applicant then went to Ms Ward’s home. He arrived before she did. Her father was at home. The applicant began shouting. Mr Ward saw that he was shouting into a mobile telephone. Mr Ward told him to take it elsewhere. The applicant pushed Mr Ward, the applicant’s palms in Mr Ward’s shoulder. Mr Ward stumbled and almost fell, but regained his balance. The applicant again spoke of being a white supremacist. He was behaving aggressively, repeatedly pushing Mr Ward, threatening to hit him, and shouting at him. He then turned and walked away. He returned shortly after, again shouting abusively. He threatened to obtain a gun and shoot Mr Ward. He left again, and again returned after a short time. This time he was carrying an axe. While holding the axe, he verbally abused Mr Ward. Mr Ward feared for his life. The applicant saw Mr Ward’s dog and turned and ran back towards his own house. At this stage police, who had been called, began arriving on the scene, sirens sounding. Mr Ward was frightened, angry and worried for his daughter. His body was trembling. Mr Ward is in receipt of a disability pension and has severe joint and back problems.

18 The applicant ran home; Mr Davies and Mr Searle were still in the house. The applicant locked the doors and windows. He was still in possession of the axe. Both men feared for their safety. Police arrived at the house. The applicant threatened that if they entered he would kill them. He armed himself with two carving knives. Mr Davies and Mr Searle remained in the house while the applicant moved around in an agitated state. Eventually he allowed them to leave the house. When they did, they were ordered by police to put their hands on their heads and then lie on the ground. They were searched and questioned and then allowed to leave. Mr Davies spent the night at Mr Searle’s home.

19 The applicant shouted abuse, threats and profanities at police. State Protection Group police, including negotiators, arrived and secured the premises, containing the applicant inside the house. At 4.20 am the applicant was persuaded to leave the house. He walked out of the front door, holding in each hand a 20 cm bladed carving knife, the blades pointing upwards. He refused police demands to drop the knives and did not comply with other instructions. He continued to abuse police, and to threaten to stab any police officer who approached him.

20 A “tazer” shot was fired by the police in his direction. (A tazer is a weapon which, by the use of electrical impulses, causes the muscles to seize, and the body to become rigid, thus immobilising the person against whom it is used.) The tazer shot was ineffective. A number of rounds from a “bean bag” shotgun (apparently a less lethal weapon than the tazer) were then fired, also with little or no effect. The applicant ran off, still holding the knives. A police dog, Titan, was released to apprehend him. Titan pursued the applicant and caught him outside Mr Ward’s premises. The dog lunged at the applicant’s left wrist, thus preventing him from using the knife held in that hand. He took the applicant’s wrist in his mouth but did not bite. The applicant used the knife he held in his right hand to stab the dog. The stab wound proved fatal. Police caught up. A violent struggle ensued, with the applicant resisting police efforts to disarm and arrest him. Another tazer shot was fired, causing the applicant to fall to the ground. The applicant was eventually arrested, cuffs were placed on his feet and ankles, and he was stripped naked. He was taken for psychiatric assessment and was found to be suffering from no mental illness. He was medically examined and found to have extensive grazes, abrasions, bruises and swelling to his head and face.

21 On the findings made by the sentencing judge, which are not the subject of challenge:

• the first offence in time was the assault on Mr Ward. This was constituted initially by verbal abuse, sufficient to put him in fear for his safety; and was followed by the pushing and threats to kill him (this was Count 2 on the indictment);
• the second offence in time was the intimidation of Mr Ward. It was constituted by the applicant’s approaching Mr Ward, with the axe, and at the same time verbally abusing him, putting Mr Ward in fear for his life (this was Count 3 on the indictment);
• the third offence was the offence of intimidating Mr Davies. It was committed when the applicant ran home after hearing police sirens, and entered the house, armed with the axe. Mr Davies feared that if he attempted to leave the house the applicant would hurt him (this was Count 4 on the indictment);
• the fourth offence, which was that of resist arrest, was committed when the applicant ran away before being seized by the police dog. (This was Count 5 on the indictment.);
• the final offence in time was that which appears first on the indictment, and is the most serious of all, the offence of using an offensive weapon to prevent lawful apprehension. This offence was constituted by the use of the knives to threaten police and then to subdue the police dog, resulting in its death, at a time when the applicant was running from the house and being pursued by police.

subjective circumstances

22 The applicant was born on 9 December 1981. He was just 22 years of age at the dates of the offences. He had previously been convicted of using an offensive weapon with intent to commit an indictable offence (also brought under s33B(1)(a) of the Crimes Act); and, at the same time, of malicious wounding. For the first of these offences he was, on 18 October 2002, sentenced to imprisonment for three years with a non-parole period of 15 months, commencing on 12 February 2002; the second to a concurrent term of imprisonment for 12 months. In December 2003 he was convicted of assaulting a police officer in the execution of duty, and was subjected to a bond under s9 of the Act. He was released on parole in May 2003, with a parole period of one year and nine months, expiring on 11 February 2004. He was, accordingly, on conditional liberty and subject to the strictures of the parole order at the time of the events giving rise to the present offences. Parole was revoked on 31 January 2005, and he served the balance of that term.

23 A psychological report was in evidence. This showed that the applicant had had a disturbed childhood, some features of which he was not prepared to disclose or discuss, but which had caused depression and aggressive behaviour since his early primary school years.

24 His father was violent, both to the applicant and to his mother, and his parents’ marriage broke down when the applicant was eight. The applicant nevertheless retains a close and apparently affectionate relationship with his father.

25 The applicant was disruptive at school and was expelled and sent to Boys’ Town. He was said to have been diagnosed as suffering from Attention Deficit Disorder for which dexamphetamine was prescribed. His behaviour improved, but deteriorated again on his leaving Boys’ Town and returning to the public school system. He was again expelled. He left school at the age of 14 years and nine months. Thereafter he had some employment – as a plumber’s assistant, as a welder, and assisting his father in the installation of automatic teller machines; he had begun a boilermakers’ apprenticeship course at TAFE, which he has been able to continue after being taken into custody, on these charges.

26 He has used a variety of drugs, including cannabis, amphetamines, and heroin, and has abused alcohol. At some stage he undertook a rehabilitation course, but the success or otherwise of this is not apparent.

27 He has had two significant relationships. The first was with a woman called Belinda. It was her father who was the victim of the earlier offences to which I have already made reference. In that respect, those offences bear some disturbing parallels with the present. I have already commented upon the possibly different perceptions of the nature of the second relationship, with Ms Angela Ward.

28 Personality testing revealed schizoid and depressive features as well as aggressive and passive/aggressive traits, and “significant results” on the paranoid scale. The applicant is said to be suspicious and mistrustful of others, insular, isolated, depressive, insecure, anxious, hedonistic, impulsive and experiencing difficulties in conforming to mainstream standards of behaviour.

the proceedings on sentence

29 Despite the applicant’s pleas of guilty, a contested factual issue was said to have emerged, necessitating evidence being given by three police officers and the applicant himself. Although it is not easy, from the examination and cross examination of these witnesses, to discern the precise nature of what was said to be the factual contest, it appears to have related to the conduct of the applicant in stabbing the police dog, the extent of his resistance to police after doing so, and the extent and reasonableness of the force used by police in effecting his arrest. In particular, the applicant denied that he had struggled with police after the stabbing of the dog. There were other issues of minor detail which are quite unimportant, irrelevant to sentencing, and do not warrant the expenditure of further time or attention.

the remarks on sentence

30 The remarks on sentence are lengthy, extending over 49 pages of very small type. This is the cause of one matter of concern that ought here be mentioned. The transcript of the proceedings on the day the sentences were imposed shows that, rather than reading or making her remarks orally, the judge handed to counsel for the parties a prepared document setting out her findings of fact, her approach to the sentencing exercise, and her reasons for selecting the sentences she did. A similar course was undertaken at first instance, and received the express disapprobation of this Court, in R v Bottin [2005] NSWCCA 254. Studdert J, with whom Kirby and Howie JJ agreed, said:

“It seems to me that the procedure adopted in this case is a procedure which ought to be discouraged. Ordinarily, sentencing remarks are published in oral form so that all in court can be made fully acquainted not only with the sentence or sentences being passed but with the reasons for such sentence or sentences as well. Obviously, this is of particular concern to the offender, any victim or victims, and any relatives of the victim or victims who may be present in court. Publication of reasons by oral means also affords the opportunity for correction if there is some obvious error revealed in the expression of the sentencing remarks.”

I would respectfully endorse what his Honour said. There is an immediacy of remarks on sentence orally delivered at the time of the imposition of sentences which is valuable in the administration of criminal justice. Delivering remarks orally brings home to all concerned the full explanation for the sentence or sentences selected, together with a recital of the facts of the offences themselves. Sentencing remarks will convey all of the objective circumstances of the offence or offences, any aggravating features, and any circumstances by which the offences are mitigated, or the sentence or sentences ameliorated.

31 I appreciate that, in this case, the sheer length of the remarks was itself a deterrent to oral delivery, and her Honour, in stating her intention, observed that she did not think her voice would sustain the exercise. This, however, is a reason for economy in the preparation of the remarks, which, in this case, could have been achieved without adversely impacting upon thoroughness.

32 The sentencing judge resolved the area of factual dispute against the applicant: she held that, contrary to his evidence, he had continued to struggle with police in order to resist arrest. No challenge is now made to that factual finding. She expressly held that the applicant’s action in knifing the police dog was:

“not an instinctive muscular response but a deliberate act”.

This finding appears in that part of the Remarks devoted to aggravating features. Otherwise, the judge’s recitation of the relevant facts was essentially in accordance with what had been put before her, by agreement, by the prosecution, as summarised at the outset of these reasons.

33 Her Honour turned her mind sequentially to the aggravating features of the offences, provided for by s21A(2) of the Sentencing Procedure Act. Generally, with one significant exception to which I will come, these are uncontroversial. Her Honour found, for example, that the offence of intimidation of Mr Davies was aggravated by his vulnerability (see s21A(2)(l)), because of his intellectual impairment. She held that the offences of intimidation were aggravated by the threatened use of the axe, but also held that, because that circumstance:

“verges upon being an element [of the offences] in that it is the vehicle that is involved as founding the basis of the intimidation”,

it would be accorded only nominal weight.

Her Honour said:

“I find that the deliberate stabbing and killing of police dog Titan, by plunging virtually the entire length of the blade of a substantial knife into his chest was an act of gratuitous cruelty productive of substantial injury, emotional harm, loss and damage and sounding in the death of the police dog Titan, and the emotional harm and distress caused to the police officers witnessing that event, and, in particular, his handler, Senior Constable McDowel, who also witnessed that act.”

Her Honour went on to say that she did not place separate weight, for the purposes of aggravation, upon substantial injury, emotional harm (distress), loss and damaged caused. Her Honour made reference to the decision of this Court in R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520, expressly finding that:

“The reality, however is that this situation, albeit the killing of a police dog rather than a child, is more akin to that in R v Hoerler .”

She went on to extract certain paragraphs from that decision. These included the following:

“[42] Plainly a violent attack, albeit not one accompanied by an intention to kill or inflict grievous bodily harm, by a person in a position of trust and responsibility upon a defenceless young child, is a circumstance of considerable aggravation. In this sense only can the offence of manslaughter in such cases be regarded as some form of separate category. It is a circumstance of such significance that it is entitled to substantial weight in the exercise of the sentencing discretion. The sense of outrage in the community about such a case is so strong that the element of retribution must play a prominent part in the exercise of the sentencing discretion. However, there is such a wide variety of other factors which may accompany this circumstance, that sentences for offences which share only this characteristic would not be expected to result in an identifiable sentencing range or pattern.
[43] In the case of manslaughter, as I noted above, the acts constituting the offence and the circumstances of the offender at the time of the offence, may vary over a very wide range of objective gravity. The actual physical assault leading to death can range from comparatively minor force to a sustained beating over a prolonged period of time, incorporating elements of gratuitous cruelty. The personal culpability of the offender may vary from a carer who acts out of despair or in circumstances bordering on accident, to the vicious acts of a sadist.

…
[66] The fact that the fatal blow occurred in the course of a prolonged violent attack elevates the level of culpability of the offender to a high order. That fatal blow was accompanied by at least two other blows, and probably more, any one of which could have been fatal. ...”

34 S21A(2)(f) specifies that the use of gratuitous cruelty in an offence is an aggravating feature. Her Honour held that the offence against s33B(1)(a) was aggravated by the use of gratuitous cruelty, specifically, in the stabbing of the police dog. This finding is challenged, and is the subject of one of the specific grounds of the application for leave to appeal. I will return to this question when I come to deal with the individual grounds of the application. Her Honour then held that this offence was objectively very serious, falling into the worst category of such offences. This finding is also the subject of challenge.

35 Her Honour considered subjective factors and matters of mitigation. She accepted that, pursuant to s21A(3) of the Sentencing Procedure Act, sub-paras (b) and (k) were available as mitigating features. These provide, respectively, as matters of mitigation to be taken into account, that the offence was not part of a planned or organised criminal activity, and that the offender pleaded guilty. She rejected a submission put on behalf of the applicant that his prospects of rehabilitation were good, and another that he had shown remorse for the offences. She considered, correctly, that both general and specific deterrence were relevant considerations.

36 Her Honour noted the pleas of guilty, and, as I have indicated above, in accordance with the principles stated in R v Thomson; R v Houlton, allowed a sentencing discount of 25% in respect of Counts 2 to 5. In respect of Count 1, she allowed a discount of 18.5%, the factual contest that necessitated evidence being given by three police officers, thus diminishing the utilitarian value of the plea of guilty in relation to that offence. [It appears to me that there is some confusion here: I have earlier alluded to the difficulty of discerning precisely what the factual dispute was. So far as the transcript assists, it suggests that that went to the charge of resisting arrest. However, no issue is raised on the application in relation to the discounts allowed for the pleas of guilty, and it is unnecessary to take further time on this matter.]

37 Her Honour rejected a further submission that the applicant had been subjected to extra-curial punishment by the manner of his arrest. She did, however, determine to reduce, although by only a very small amount, the sentences by reason of the applicant’s having fallen to the ground.

38 She declined to find special circumstances within the meaning of s44(2) of the Sentencing Procedure Act, justifying departure from the statutory ratio between the non-parole period and the total sentence, either in respect to any of the individual sentences, or the overall term. No challenge is made to that determination.

39 Her Honour made specific findings as to where each offence lay on a scale of objective gravity of offences of its kind. The two offences against Mr Ward she held to fall into the lower/middle of the range (rejecting an argument put on behalf of the applicant that it was in the low end of the range). The offence of intimidation against Mr Davies she held was aggravated by his vulnerability (his intellectual impairment) and therefore fell into the mid range. The offence of resisting arrest she placed in the lower end of the range (contrasting with the low range contended for on behalf of the applicant). And the final offence, involving the use of knives and the killing of the dog, she placed in the worst category of offences of its kind.

40 Her Honour considered the questions of totality, concurrence and accumulation, and proceeded to impose the sentences I have already set out. She specified the sentences she would have imposed but for the pleas of guilty. There were:

Count 1: 11 ½ years
Count 2: 11 months
Count 3: 2 years
Count 4: 2 ½ years
Count 5: 1 ½ years.

the grounds of the application

41 The grounds pleaded are:

“1. The sentences imposed in respect of Counts 3 and 4 of the indictment are manifestly excessive.
2. The sentencing judge erred in taking into account as aggravating factors in respect to Count 1 on the indictment that:
(a) the offence involved gratuitous cruelty;
(b) that the applicant’s action was not an instinctive muscular response but a deliberate act.
3. The sentencing judge erred in characterising Count 1 on the indictment as being in the worst category of offences.
4. The sentence imposed in respect of Count 1 on the indictment is manifestly excessive.
5. The total effective sentence is manifestly excessive.”

Ground 1: The sentences imposed in respect of Counts 3 and 4 of the indictment are manifestly excessive

42 The argument advanced on behalf of the applicant was as follows:

(i) her Honour classified the intimidation offence against Mr Ward as in the lower/middle range of objective seriousness, and that against Mr Davies as in the mid-range;

(ii) in reaching these conclusions, her Honour had regard only to the objective facts, and not (as she ought to have done) to the circumstances of the case, both objective and subjective;

(iii) since her Honour allowed, in each case, a discount in respect of the pleas of guilty of 25%, the starting points, before application of the discounts were, as her Honour stated, respectively, two years and two and a half years (against a statutory maximum of five years);

(iv) these starting points are consistent with the assessment of objective gravity;

(v) the process involved three steps –
• assessment of where in the range of objective seriousness of offences of that kind each offence lay;
• determination of the appropriate starting point, in the light of that assessment and the statutory maximum;

• application of the discount of 25%;

(vi) error is identified in the assessment of the objective gravity, in that her Honour had regard to the objective features of the offences, but disregarded ameliorating subjective features. Accordingly, the assessment of objective gravity in each case is flawed and the process produced a result that is not warranted.

43 An alternative way of putting the argument is that the sentences imposed corresponded precisely with the evaluation of objective gravity, without any allowance for mitigating features. Complaint made was that, having made the assessment of objective gravity, her Honour did not take into account, in consideration of the appropriate sentences, mitigating factors. If her assessment of objective gravity was correct, and the sentencing starting points therefore correct on that basis, some adjustment was called for in recognition of the mitigating features. This would have resulted in imposition of lower sentences.

44 Two questions arise:

• is it correct that her Honour assessed the objective gravity of each offence by reference only to the objective features, without regard to other relevant, mitigating features?;

• if so, was that incorrect?

45 The contention that the assessment of objective gravity was made on the basis of objective features, without regard to subjective features, gains some support from where it is to be found in the sequence of the sentencing remarks. Each assessment appears after a recital of the facts and consideration of the aggravating features, but before reference to subjective features or mitigating factors such as the applicant’s prospects of rehabilitation (which her Honour found, effectively, were not good) and, more importantly, the contents of the psychological report setting out the applicant’s background and history.

46 I would therefore infer that her Honour did approach the matter in the manner suggested on behalf of the applicant. Was that erroneous?

47 Sentencing judges have long been acquainted and familiar with the notion of making an assessment of the objective gravity of offences for which they are passing sentence, although, until recently, this has more commonly been done intuitively: see Regina v Way [2004] NSWCCA 131; 60 NSWLR 168, at [79].

48 The notion of formally and expressly placing any given offence in a range of objective seriousness of offences of its kind has come about as a result of the introduction into the Sentencing Procedure Act of Part 4, Division 1A, enacted in 2002, with effect from 1 February 2003. That legislation was comprehensively explained by this Court in Way. The Court construed the concept of objective seriousness, as contained in the legislation. Although Part 4 Division 1A does not apply to any of the present offences, there is no reason why the approach there outlined to the assessment of objective gravity, and which is relevant to objective gravity as distinct from subjective features, should not – and every reason why it should – extend to the concept of objective seriousness of offences not directly the subject of the Division.

49 At [86] the Court considered the circumstances which affect the seriousness of an offence. Some of these, the Court said, will be “personal to the offender at the time of the offence” but relevant because of their causal connection with the commission of the offence. Such matters include motivation, mental state, mental illness or intellectual disability where causally related to the commission of the offence. The distinction was expressed as follows:

“Such matters [matters relevant to the assessment of objective seriousness] can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment.”

The Court classified other matters, such as those which explain or influence the conduct of the offender or otherwise impinge upon moral culpability (e.g. youth or prior sexual abuse), as more accurately described as circumstances of the offender and not of the offence.

50 Her Honour recognised that two of the mitigating factors specified by s21A(3) of the Sentencing Procedure Act were applicable. They were:

“(b) the offence was not part of a planned or organised criminal activity,
…
(k) a plea of guilty …”

Plainly, the plea of guilty cannot in any way affect the assessment of the objective seriousness of the offences.

51 The sentencing judge recorded that the case presented on behalf of the applicant in mitigation rested effectively upon three facts, which her Honour identified as:

“His self-induced intoxication; the manifestation of uncontrolled anger; and the sheer irrationality of his actions in the period.”

52 The argument demonstrates the high level of refinement that has been introduced into the sentencing process, not least by the introduction of Part 4, Division 1A. As I have observed, that Division is not directly relevant to the present sentencing exercise; however, it is clear from the approach taken to this sentencing exercise that the procedures required by that Division have crept into sentencing in other cases.

53 I have come to the view that counsel for the applicant is correct in submitting that the assessment of objective gravity was made without regard to subjective circumstances, such as matters of motivation or mental state. That, however, was not, in the circumstances of this case, erroneous. There was nothing in the subjective case that affected the assessment of objective gravity. But counsel is correct in further submitting that, after that assessment was made, the sentences were not tempered by reference to the personal circumstances of the applicant relevant to the appropriate level of punishment, such as his unfortunate childhood and adolescence, affecting, although to a moderate extent only, his moral culpability. It is one thing to assess objective gravity without regard to subjective circumstances; it is another (and may denote error) then to fix a sentence by reference to objective gravity, excluding any mitigating features.

54 The difficulty, however, for the applicant is that her Honour’s findings of fact in respect of these matters do not suggest that, had the correct approach been taken, a different result would have ensued. Her Honour was sceptical about the applicant’s prospects of rehabilitation; more than once she noted that he had done nothing to address his problems and had little insight into his behaviour. She was also sceptical about his expressed remorse. There was little in the way of positive findings that would give the applicant comfort. The s21A(3) features that were held to be applicable, that I have already outlined, were meagre, limited to the pleas of guilty (for which the applicant received full credit) and the absence of planning or organisation in the offences.

55 I have given a good deal of consideration to the question of whether his background circumstances, as disclosed in the psychological report, were such as to reduce, in any significant way, his moral culpability, such as to have required the imposition of lesser sentences. I have come to the conclusion that they do not.

56 Accordingly, error in the result has not been demonstrated. I would reject ground 1 of the application.

Ground 2: The sentencing judge erred in taking into account certain factors as aggravating factors in respect to Count 1 on the indictment

57 The “certain factors” were identified as:

“(a) the offence involved gratuitous cruelty; and
(b) that the applicant’s action was not an instinctive muscular response but a deliberate act.”

58 In putting her findings as she did (see paragraph 33), her Honour ran together two separate aggravating factors for which provision is made by s21A(2). These are:

“(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial”.

59 In my opinion the passages quoted from Hoerler demonstrate, of themselves, error. In linking, by analogy, the applicant’s offence with the offence under consideration in Hoerler her Honour has in my view substantially overstated the gravity of this offence. Hoerler involved the brutal manslaughter of a young baby, with ancillary behaviour described as “grotesque”, committed by a person with the care of and responsibility for his welfare. There are many aspects of the passages extracted that demonstrate significant disparity between the two cases. There are references to physical assault, to a fatal blow, and to a prolonged violent attack. The applicant was not in a position of trust or responsibility and his act of “cruelty” lacked the sustained, continuing and sadistic qualities that were present in Hoerler.

60 Recourse to the report of Hoerler itself strengthens that conclusion. In the remainder of [66], which was not extracted, the following was said:

“Furthermore, the conduct of the offender included the aggravating conduct of dragging the body of the baby over a surface, such as a carpet or a sofa, face down causing a number of facial injuries. Over and above that is the gratuitous cruelty of an almost grotesque character by the application of clamps to both feet of the deceased baby Jordan with sufficient force to break his toes. That conduct was not fatal and he is not to be sentenced for it as if it were an element constituting the offence. It does, however, make this a crime in which the conduct of the Respondent was of a high level of objective gravity as an incident of the overall conduct leading to the fatal blow.”

61 The reference to Hoerler appears in the sentencing remarks under the heading:

“An offence aggravated by gratuitous cruelty”

I am quite unable to accept the analogy between the two cases. I have no wish to minimise the seriousness of the applicant’s conduct. Here, however, while in the grip of a police dog, the applicant stabbed the dog (admittedly forcefully) once. That cannot be compared with the level of violence and cruelty described in the judgment in Hoerler.

62 The Crown conceded that the stabbing of the police dog could not qualify as gratuitous cruelty within s21A(2)(l). It was, in my opinion, an error so to categorise that act.

63 However, the Crown also argued that the act was a gross and callous act that no doubt seriously affected the police officer to whom the dog was attached and therefore constituted an aggravating feature under s21A(2)(g). Her Honour accepted that that was so, but declined to give it significant weight. Again, it was submitted by the Crown, there was no error in the result.

64 The difficulty with the Crown’s position is that a fair reading of her Honour’s remarks demonstrates, in my opinion, that it was her characterisation of the knifing of the dog as an act of gratuitous cruelty that led her then to classify the offence as being in the worst category of such offences.

65 I have come to the view that, while it was an error to regard the stabbing as an act of gratuitous cruelty, thus aggravating the offence, nevertheless, the fact that a police dog was stabbed and killed does take the offence into the higher levels of objective seriousness of offences of using weapons to resist lawful apprehension. I am, however, satisfied that it could not be at the very top: the use of firearms would have to occupy that position.

66 On behalf of the applicant it was submitted that the stabbing of the police dog was an act integral to the offence charged in Count 1 and could not, therefore, be an aggravating feature.

67 I would reject this. It was sufficient to constitute the offence that the applicant brandished the two knives; the actual use of them, to kill a police dog, was a circumstance grafted upon that basic fact, taking this offence into the upper echelons of offences of its kind, even if not quite at the outer limits. I agree with the sentencing judge that killing the dog (whilst not properly seen as an act of gratuitous cruelty for the purposes of s21A(2)(1)), did constitute a circumstance of aggravation.

Grounds 3 and 4: Count 1 is not in the worst category of such offences and the sentence for that Count is manifestly excessive

68 For reasons I have already given I accept that the principal reason which led her Honour to categorise the offence as in the worst class was not available as an aggravating feature; it was, however, a part of the context of the offence relevant to the overall assessment of objective gravity. I am also satisfied that the categorisation of itself was erroneous, although the offence lay outside of the worst category by only a small margin. As I have indicated, it might ordinarily be thought that the use of guns as distinct from knives would constitute a worse offence; but this offence is complete when weapons are flourished or brandished or presented; it is not necessary that they be brought into impact with a person (or animal or object). Indeed, if the weapon used in the offence were used to inflict injury on a person, the offence charged would be one of greater seriousness than an offence against s33B(1)(a). I have come to the view that the manner in which the knife was used was sufficient to justify the classification of the offence as in almost the worst category. Ground 3 is therefore made out, but the effect of the error is relatively minor.

69 And it does not follow from a “worst case” finding in terms of objective gravity that a sentence of the maximum available, or close to it, was appropriate. In the determination of sentence it was also necessary to factor in any mitigating circumstances which did not go to the objective gravity of the offence.

70 In respect of this offence the discount for the plea of guilty was fixed at 18.5%. This means that the starting point, prior to the discount, was almost 11 ½ years (against a statutory maximum of 12 years). Such a sentence can be justified if the applicant’s offence was properly characterised as in the worst category of offences of its kind, and there are no mitigating circumstances.

71 Counsel for the applicant produced statistics from the Judicial Commission. These show that this sentence is the highest, by a significant margin, ever recorded in respect of an offence against s33B(1)(a). The previous highest recorded maximum term is of imprisonment for six years; the previous highest recorded non-parole period is four years. That puts the applicant’s head sentence at more than 50% above the previous highest head sentence; and the non-parole period at 75% higher than the previous highest recorded non-parole period.

72 This of itself means little. It would be necessary, in order to draw anything from it, to know more of the circumstances of the other offences and offenders.

73 It is well established that the maximum sentence is reserved for offences in the worst category. But here the starting point was not the maximum: it was slightly less. I have come to the conclusion that the sentence was not manifestly excessive in the sense that it was not open to her Honour. There was little in the applicant’s subjective case available to mitigate either the offence, or the sentence to be imposed. Although at the very highest end of the range available for the offence, it was within her Honour’s sentencing discretion.

74 I would reject Grounds 3 and 4.

Ground 5: the effective overall sentence is manifestly excessive

75 As indicated above, the effective overall sentence was of imprisonment for 11 years, eight months and six days, with a non-parole period of nine years, four months and six days. On behalf of the applicant it was contended that the aggregation of sentences produced a result that was manifestly excessive and that error can be seen in the combination of matters already dealt with and also by reason of the extent of accumulation of sentences.

76 Having regard to the views I have already expressed, the first basis for the applicant’s contention cannot be sustained. There remains the question of accumulation and/or concurrence. The sentence imposed in respect of Count 2 was completely accumulated upon the sentence the applicant was already serving, once his parole was revoked on 31 January 2005. (The applicant thereafter was in custody referable to the previous offence until 12 February 2005.) The sentences imposed in respect of Counts 3 and 4 were fully accumulated upon that imposed in respect of Count 2. The non-parole period of the sentence imposed in respect of Count 4 expires on 19 March 2008; the sentence imposed in respect of Count 1 was specified to commence on 20 June 2007, making that sentence cumulative other than a nine month period of concurrency.

77 Whether or not to accumulate sentences is essentially a matter of discretion for the sentencing judge: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66; R v Keen [2004] NSWCCA 86. However, it is commonly accepted that, where a series of related offences are committed as part of a single enterprise, it is more likely that the sentences will, to some extent, be specified to be served at least partially concurrently. Compliance with the dictates of Pearce v The Queen [1998] HCA 57; 194 CLR 610 demands that an appropriate sentence in respect of each offence be fixed. Compliance with sentencing principle also requires that the overall sentence reflect the totality of the criminality. Here, the overall criminality was very high indeed. The episode continued over several hours and involved the use of an axe, as well as the two knives. Two victims were intimidated, one of them intellectually impaired, the other suffering some physical disability. The latter was assaulted. As I have already mentioned, the offence of using offensive weapons to avoid apprehension was a very serious manifestation of offences of its kind.

78 I have already expressed the view that none of the individual sentences has been shown to have been manifestly excessive; the only remaining question is whether the accumulation resulted in a manifestly excessive overall term. I have come to the view that it did.

79 In my opinion, an appropriate term which the applicant ought to serve consists of a head sentence of nine years, with a non-parole period of six years. The sentences ought to be adjusted to achieve that overall result. In sentencing I would propose a more conventional selection of sentences in round figures.

The sentence I propose in respect of the assault is a fixed term. That is because, having regard to the lengthy time the applicant will, in any event, serve, fixing a non-parole period would serve no purpose.

80 Accordingly, I propose the following orders:

(i) leave to appeal against sentences granted;

(ii) appeal allowed, sentences quashed, and the applicant be re-sentenced as follows:

Count	NPP	Commence- ment date	Expiry	Balance of term	Commence-ment date	Expiry	Total term
2 (assault)	6m (fixed term)	13.2.2005	12.8.2005	6m
3 (intimidate S Ward)	12m	13.8.2005	12.8.2006	4m	13.8.2006	12.12.2006	16m
4 (intimidate W Davies)	15m	13.2.2006	12.5.2007	5m	13.5.2005	12.10.2007	20m
5 (resist arrest)	9m	13.5.2007	12.2.2008	3m	13.2.2008	12.5.2008	12m
1 (use weapon to avoid lawful apprehension)	6yrs	13.10.2005	12.10.2011	2yrs 4m	13.10.2011	12.2.2014	8yrs 4m

81 ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Simpson J and the orders her Honour proposes.

82 I join in the orders proposed by Simpson J and generally with the reasons of her Honour.

83 The applicant embarked upon a course that resulted in the terrorising of two victims, one in his own home and, in circumstances of the similar prior offences, these offences deserve condign punishment.

84 I agree with all that her Honour has said as to the principles to be applied. Particular emphasis needs to be added to the error in comparing the facts in R v Hoerler, infra, and the stabbing of the dog. The circumstances in R v Hoerler are incomparable, even to most other murders.

85 The principles of the criminal law require obedience to the legal prescriptions of behaviour enacted by the legislature or arising from common law. The onus is placed on police and other law enforcement agencies to ensure that the law is upheld. The law (both statute and common law) regard the use of weapons endangering police in order to prevent lawful detention as requiring a sentence that pays particular attention to general deterrence.

86 The categorisation of the objective gravity of a particular offence is an exercise of judgment on which reasonable minds will differ. The well-known principles applicable to appeals against the exercise of discretionary judgments apply to preclude an appeal court from interfering unless the categorisation is not open.

87 The categorisation of this offence under s33B(1)(a) as being in the worst category was, on the view I take, not open to Gibb DCJ. In that opinion, I am in agreement with Simpson J. However, I do not accept that a sentence of 11½ years (in circumstances where the maximum is 12 years) is appropriate for anything other than the worst category of cases and therefore cannot accept it as an appropriate starting point in this case.

88 I accept that the killing of the police dog was an aggravating feature because Gibb DCJ found, as a fact, that it was “not an instinctive muscular response but a deliberate act”. Her Honour’s finding, in that regard, was open and ought not be disturbed. In other circumstances, a different result may be appropriate.

89 Notwithstanding my view as to the starting point of 11 ½ years for Count 1, in the circumstances of the accumulation of sentences and the overall sentence imposed, I join in the orders proposed by Simpson J.

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ADDENDUM

McCLELLAN CJ at CL

: I agree with the addendum proposed by Simpson J.

SIMPSON J: Judgment in this matter was delivered on 5 February 2007. On 12 February 2007 a letter was received in the registry of the Court of Criminal Appeal from the legal representatives of the applicant. The letter pointed out an inconsistency between the intention stated in para [79] of the judgment (to impose an overall term of imprisonment consisting of a head sentence of nine years, with a non-parole period of six years) and the result achieved by the sentence specified in the table to para [80] in which, by reason of the accumulation of sentences and the starting date of the sentence imposed in respect of Count 1, which results in an overall term of a head sentence of nine years with a non-parole period of six years and eight months. Representatives of the Director of Public Prosecutions agreed that the inconsistency existed, and ought be referred to this Court.

Regrettably, the communication was not drawn to the attention of any member of the Court until late May 2007. It is for that reason that the correction, which ought to be made, has not yet been made.

The anomaly will be corrected by substituting, in respect of Count 1, a sentence of imprisonment with a non-parole period of six years, commencing on 13 February 2005 (instead of 13 October 2005, as originally stated) and expiring on 12 February 2011, with a balance of term of three years expiring on 13 February 2011. This produces a head sentence of nine years in respect of that offence, in place of the eight years and four months previously specified, but, by reason of the earlier commencement date, not extending the overall length of the term, and achieving the intention stated in para [79].

It is recognised that this does not achieve the intention to impose sentences that recognise the applicant’s criminality by a measure of accumulation. Given the relatively short terms of the earlier sentences, and the significantly longer term necessary in relation to Count 1, it is not possible so to accumulate.

The order of the Court is:

(i) leave to appeal against sentences granted;

(ii) appeal allowed, sentences quashed, and the applicant be re-sentenced as follows:

Count	NPP	Commence- ment date	Expiry	Balance of term	Commence-ment date	Expiry	Total term
2 (assault)	6m (fixed term)	13.2.2005	12.8.2005	6m
3 (intimidate S Ward)	12m	13.8.2005	12.8.2006	4m	13.8.2006	12.12.2006	16m
4 (intimidate W Davies)	15m	13.2.2006	12.5.2007	5m	13.5.2005	12.10.2007	20m
5 (resist arrest)	9m	13.5.2007	12.2.2008	3m	13.2.2008	12.5.2008	12m
1 (use weapon to avoid lawful apprehension)	6yrs	13.02.2005	12.02.2011	3yrs	13.02.2011	12.2.2014	9yrs


ROTHMAN J : I agree with the addendum proposed by Simpson J.

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20/06/2007	-	Addendum inserted to amend inconsistency - Paragraph(s) End of judgment
28/06/2007	-	Judgment of McClellan CJ at CJ and Rothman J inserted in addendum - Paragraph(s) Addendum