Curypko v The Queen
[2014] VSCA 192
•29 August 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0052
| DAVID MARK CURYPKO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | ASHLEY and NEAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 August 2014 |
| DATE OF JUDGMENT: | 29 August 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 192 |
| JUDGMENT APPEALED FROM: | DPP v Curypko (Unreported, County Court of Victoria, Judge Morrish, 3 March 2014) |
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CRIMINAL LAW – Application for leave to appeal – Appeal – Intentionally causing serious injury – Domestic violence – One charge embracing repeated assaults over ten hour period – Evidence of assaults preceding charged offence admitted for contextual purposes – 24 year delay between offending and sentence – Delay in part attributable to victim’s fear and trauma and in part attributable to delay in course of investigation – Offender’s rehabilitation in interim – Plea of guilty – Remorse – Maximum penalty at time of offending, 15 years’ imprisonment – Sentence of five years’ imprisonment with two and a half years’ non-parole period – Agreed summary of the facts referable to offending – Whether judge went beyond summary in sentencing offender – Whether judge erred in holding that general deterrence was of importance as a sentencing consideration – Whether sentence manifestly excessive – Leave to appeal granted, but appeal dismissed – R v Schwabegger [1998] 4 VR 649, R v Toomey [2006] VSCA 90 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victorian Legal Aid, Geelong |
| For the Respondent | Mr J B B Lewis | Mr C Hyland, Solicitor for the Office of Public Prosecutions |
ASHLEY JA:
The applicant, David Mark Curypko, has elected to renew his application for leave to appeal[1] against sentence imposed upon him by a judge in the County Court on 3 March 2014. If leave is granted, he submits that his appeal should be allowed, and that a lesser sentence should be imposed.
[1]Leave to appeal was refused by Osborn JA on 4 June 2014.
The sentence now challenged was that the applicant be imprisoned for five years, with a non-parole period of two and a half years.
Circumstances
Sentence was imposed after the applicant pleaded guilty to a charge of intentionally causing serious injury. The offence was committed on 17 September 1989.
The injury was inflicted by the applicant upon a young woman with whom he had been in a de facto relationship since 1987. The charge to which he pleaded guilty was the negotiated outcome of allegations that he had repeatedly assaulted the woman over a four year period. Initially, the applicant was to be charged with 48 offences arising out of at least 16 incidents.
The particular offence to which the applicant pleaded guilty embraced a course of conduct engaged in by him over a ten hour period. He was then aged 19, and the victim, HP, was aged 18.
There was an agreed factual basis referable to the charge. It was reflected in the prosecution opening, which was relevantly as follows:
In five statements to police, made between 2003 and 2013, [HP] described a violent relationship during which she was regularly assaulted resulting, on occasions, in injury and serious injury. These assaults took place throughout the duration of the relationship. The assaults included a number of occasions where the complainant was struck to the head and face; a number of occasions where she was dragged by the hair through the house; a separate occasion where she was hit with a baseball bat where she says she sustained broken ribs; and 3 occasions, during a period where she was pregnant with her daughter [K] in 1989, where she was assaulted and admitted to Geelong Hospital. The last of these incidents took place two months before the charged incident. The violence continued on after the charged incident and included an occasion where she was again stabbed with a hypodermic syringe, as in the charged incident, approximately 6–8 times. The prosecution relies on this material to exemplify the general context against which the charged act took place. (see DPP V McMaster [2008] VSCA 102)
Intentionally Causing Serious Injury
In October 1988, the complainant and the accused moved to live in Gheringhap Street Geelong. On 17 September 1989, the complainant was at home with the accused. Their daughter [K] had been born approximately two weeks earlier.
The complainant went to sit on the accused’s knee and he became angry as a result. This was the start of a 10 hour assault by the accused on the complainant. Firstly, the accused threw her to the ground which caused her head to hit a stereo in the room. He then dragged her back and flung her on her back. He then struck her to her head and body with punches. She recalls that the first two or three punches to her face broke her jaw. She recalls hearing a click but did not immediately feel pain in her jaw. Her face became swollen from the punches and when he allowed her to have a cigarette she was unable to draw back on it. During the assault, she was hit with a baseball bat, a vacuum cleaner pole and had vases smashed over her head. The accused also threw a glass table at her which struck her in the head. He pushed her head into the concrete walls of the house. She was kicked with steel capped boots. He told her she was nothing. He forced her head into the toilet bowl, with her head immersed in the water, preventing her from breathing. He repeated this process a number of times lifting her head from the water and then pushing it down again into the water. Each time he did this her forehead hit the bowl from which she sustained swelling to her forehead. The accused removed a serrated knife from a knife block, and put his arm across her body so that she could not move. He then heated the end of the knife with a cigarette lighter until it was glowing. He placed the knife against her neck. She could smell her flesh burning as he dragged it across her neck. This caused a cut to her neck approximately 0.5 cm deep. The complainant still has a scar on her neck from this incident. The accused also stabbed the complainant in the left shin with the plunger part of a hypodermic syringe. This broke the skin, penetrated into her leg and caused a scar on her leg. The complainant recalls that during the assault their daughter [K] was screaming for a feed but that she could not get to her due to the assault and that the accused smashed her premade bottles which were in the fridge.
Finally, the following morning at around nine o’clock the accused left for work. Later that day the complainant was admitted to the Geelong Hospital. She stayed there for four days. The complainant still suffers consequences from her broken jaw. She states that she can only eat food in small pieces and that her jaw seizes up or locks from time to time and she is unable to move it. She sees a dentist every 18 months concerning her ongoing problems. She lost all but six teeth as a result of the assault.
Additional material
The opening referred to five statements made by HP to the police over a ten year period. Those statements were before the judge, as part of the depositions. To a certain extent, with respect to the circumstances of the charge, they added to the agreed facts set out in the opening. Beyond that, the statements described many other assaults by the applicant upon HP in considerably greater detail than did the opening. Most of those identified assaults preceded the occasion which gave rise to the charge.
The prosecution relied upon the uncharged assaults as evidencing the context in which the charged offence was committed, and as demonstrating that the charged offence was not an isolated incident.
It appears that the five statements and a police summary in the hand-up brief (to which the latter of which the judge very briefly referred in her sentencing remarks) may not have been the only material (in addition to the opening) which traversed the circumstances of the offending and the contextual evidence. Counsel for the applicant referred on the plea to a chronology prepared for his client which apparently addressed the many allegations of assault which had been made against him at the outset. But I make nothing of that matter, because the chronology was not made an exhibit, and its precise content is only speculation.
Also placed before the judge was a victim impact statement made by the complainant. Counsel for the applicant did not object to its receipt, observing that – so far as the statement catalogued allegations of assault – it ‘contains slabs of what was, in effect, the Crown opening anyway’.
The statement led the judge to conclude that the applicant’s offending had had a profound and continuing impact upon the victim. That impact was both physical and mental.
As to the former, a fractured jaw sustained by HP continued to give her problems. Additionally, she lost most of her teeth as a result of the offending conduct, and dental problems persisted. Further again, she was left with scarring of a leg, her neck, and she had a deformity on the bridge of her nose.
So far as the mental or emotional consequences of the attack were concerned, the victim was left, she stated, with feelings of unworthiness, sadness, of being destroyed, of being constantly haunted by the past. Whilst it is apparent that the emotional sequelae were not entirely attributable to the charged offending, a matter which the judge recognised, it could not be said, and was not argued for the applicant (either below or in this Court), that such offending was causally irrelevant to the victim’s continuing mental upset.
The course of events
HP made no complaint to the police until 2003. The judge observed that there was considerable delay, partly because of the victim’s fear and trauma. Then there was further delay caused by, as the judge noted, a ‘change in investigators’.
I put explanations to one side for the moment. The simple fact is that the applicant was not interviewed until August 2012 with respect to the alleged offending in September 1989, that he was not charged until early 2013, and that he was eventually sentenced in March 2014 – that is, more than 24 years after the time of offending. Such delay, in a case not involving sexual offending (particularly sexual offending committed against a young person), or not being the consequence of late-emerging evidence (for instance, recently-obtained DNA evidence linking a person with an unsolved crime committed many years ago) is, in my experience, quite exceptional. The applicant was 19 at time of offending, was 43 when charged, and was 44 when sentenced.
Sentencing Remarks
The judge’s sentencing remarks were comprehensive and detailed. In refusing the applicant leave to appeal, Osborn JA said of them that they ‘might fairly be regarded as a model set of sentencing reasons’. I adopt that description as my own.
It is unnecessary to refer to every aspect of her Honour’s sentencing remarks. Rather, I will mention only those which the applicant now seeks to attack; or those which he particularly calls in aid.
First, whilst the judge noted that –
(1)the prosecutor had opened the Crown case in accordance with the written summary of prosecution opening, which she annexed to her sentencing remarks;
(2)applicant’s counsel had confirmed that his client accepted that he committed all the acts therein referred to; and
(3)the applicant was to be sentenced on the basis of those agreed facts,
her Honour stated that the circumstances of the offending conduct were ‘best described’ by HP in one of her five statements made to the police. She then set out a lengthy excerpt from that statement in her sentencing remarks.
Second, the judge observed that the charged conduct ‘must also be seen in the context of an ongoing abusive relationship marked by domestic violence’, and as showing that this was ‘not just a one-off occurrence’.
Her Honour stated that she had read all of HP’s statements, and as well the police summary in the hand-up brief. Then she detailed 12 violent assaults by the applicant upon HP preceding the incident giving rise to the charged offence; and one incident thereafter.
Pausing, it was common ground that the uncharged acts could be permissibly used by the judge for contextual purposes; and her Honour repeatedly stated that they were being so used, and that the applicant was not being sentenced for the uncharged acts.
Third, the judge observed, uncontroversially, that general deterrence is a significant factor in cases involving domestic violence. But she also stated, controversially having regard to an argument advanced for the applicant in this Court, that it was a factor of importance in the present case.
Fourth, the judge referred to some things said by HP in her victim impact statement as to the circumstances of uncharged acts. Her Honour did so in the course of setting out the victim’s physical and emotional response to the assaults, including the assault the subject of the charge.
Fifth, the judge referred to there having been ‘considerable delay’; and she said that ‘matters such as delay are of considerable importance’. Her Honour referred at different points in her sentencing remarks to these consequences of the delay:
(1)in 1989 or 1990, the applicant would have been sentenced as a young offender. But now he was to be sentenced as an adult;
(2)the maximum penalty for the offence in 1989 was 15 years’ imprisonment. Now, the maximum penalty is 20 years’ imprisonment. But the applicant did not face the new maximum penalty;
(3)it was conceded by the prosecution that the applicant had rehabilitated himself in the interim, and that he had excellent prospects for rehabilitation.
Her Honour accepted the concession last-mentioned, and, in doing so, accepted that –
(1)the applicant had weaned himself off illicit drug use, which had been a feature of his life when in his relationship with HP;
(2)he had reduced his intake of alcohol. Abuse of alcohol had also been a feature of his life when in that relationship;
(3)his pertinent criminal offending had ended in the second half of the 1990s;
(4)he had formed a stable relationship with another woman (in that relationship there was a 12 year old child at time of sentence) and that, in consequence, specific deterrence should not be a feature in the sentencing synthesis.
Sixth, the judge found that the applicant’s plea of guilty not only had utilitarian value, it was indicative of remorse.
Seventh, the judge stated that –
This was a brutal, vicious assault, on a young vulnerable woman who had only just given birth two weeks beforehand. It is so grave that other principles such as delay and rehabilitation and relative youth must give way.
Grounds of appeal
The applicant relies upon the following grounds of appeal:
Ground 1
The sentence is manifestly excessive in the light of
a)The applicable maximum penalty
b)the long delay and the applicant’s rehabilitation during that period,
c)the early plea of guilty evidencing remorse
d)the applicant’s youth when he offended
e)sentencing practice at the time of the commission of the offence
Ground 2
The learned sentencing Judge erred in concluding that the gravity of the offending required that the applicant’s youth at the time of offending, the delay and his rehabilitation in the interim must ‘give way’.
Ground 3
The Learned Sentencing Judge erred in departing from the agreed statement of facts in sentencing and in relying on the Victim Impact Statement as evidence of uncharged offending providing context for the charged offence.
Ground 3
Ground 3 was the first ground addressed by applicant’s counsel. He submitted, in substance, that the judge went beyond the agreed facts in sentencing the applicant.
As I have already said, the judge set out the circumstances of the offending conduct not only by annexing the summary of prosecution opening to her sentencing remarks, but also by setting out pertinent circumstances recounted by the victim in one of her police statements. Further, her Honour supplemented the general description of the assaults relied upon for contextual purposes by recourse to a statement or statements made by HP, and by reference to a police summary in the hand-up brief. She also referred to the circumstances of the offending, by reference to the content of the victim impact statement, as set out at [10], [11] and [23] above.
Counsel for the applicant submitted, with respect to the conduct the subject of the charge, that what the judge added into the opening put his client in a worse light than did the opening. He submitted that the applicant was sentenced on an ‘operatively worse basis’. It had been impermissible for her Honour to refer to HP’s statements. If her Honour was going to do so, the applicant should have been put on notice. As a matter of principle, the judge was precluded from going behind the agreed facts. In that connection, counsel cited Ristevski v The Queen.[2]
[2](2011) 31 VR 193 (‘Ristevski’), 195 [9]-[10].
Counsel frankly conceded that, even if the ground was made out, a question would arise whether the applicant had established that a different sentence should be passed upon him.
In my opinion, for the reasons which follow, this ground lacks merit.
First, the statement by HP as to the offending circumstances which the judge incorporated into her sentencing remarks added very little – and nothing of substance – to what was before the judge in the prosecution opening.
Second, HP’s statements and/or the police summary and the hand-up brief did add detail to the assaults which were relied upon for contextual purposes. But the gist of those matters was clearly set out in the opening.
Third, the circumstances of the earlier assaults were, as the judge repeatedly stated, admitted for contextual purposes only. It was submitted for the applicant that the Court should conclude that the judge said one thing, but did another. I see not the slightest evidence that this was so. Certainly, in my opinion, it does not emerge from the sentence which her Honour imposed.
Fourth, the opening referred to HP’s five statements. After the prosecutor had read a part of the opening dealing with the assaults relied upon to establish context, the judge asked whether it was agreed that the uncharged acts were committed. She referred to ‘the specific acts of violence that are uncharged’. Her Honour followed up that inquiry by this question:
He accepts the truth of the assertions made against him namely that on numerous occasions he was extremely violent towards his partner including the bashing and the stabbings with the needles and so on.
Counsel for the applicant replied ‘Yes’.
In my opinion, the judge was entitled to understand that what counsel was accepting was the detail of the allegations. That was particularly so when reference had been already made by the prosecutor to the statements made by HP.
Fifth, Ristevski was a very different case. There, the prosecutor disavowed reliance upon a witness’s assertion that a gun had been used to threaten him. Indeed, that was the agreed position of the parties on pleas of guilty. But the judge went behind that disavowal and agreement, and concluded that the offending had been aggravated by the use of a gun in the circumstances. Evidently, in those circumstances, the finding could not be permitted to stand.
Grounds 1 and 2
Although counsel for the applicant argued these grounds together, I should first deal with a particular aspect of Ground 2. Counsel submitted that the judge fell into specific error because she must have meant, by the passage cited at [27] above, that the mitigating effect of delay, rehabilitation and the applicant’s relative youth at time of offending was to be minimised because of the gravity of the offending.
I reject that submission. In my opinion, it misapprehends what the judge said. It would have been erroneous for her Honour to conclude that, because of the gravity of the offending, less than full weight was to be given to the three circumstances mentioned. But it was no error to conclude that, having given those matters their full weight, in the overall sentencing synthesis they had to take a back seat to circumstances which favoured a greater sentence. The gravity of the offending, requiring as it did just punishment, denunciation, and general deterrence in the context of domestic violence, provided those circumstances. In my view, properly understood, her Honour proceeded along the correct path.
In part by reference to Ground 1, and otherwise by reference to Ground 2, counsel raised another contention of specific error. He submitted that it was wrong for the judge to have said that general deterrence was of importance as a sentencing consideration. He relied upon observations made in R v Schwabegger[3] and DPP v Toomey.[4]
[3][1998] 4 VR 649 (‘Schwabegger’).
[4][2006] VSCA 90 (‘Toomey’).
This contention was not advanced below. Counsel for the applicant said that –
Obviously issues of general deterrence are relevant in this kind of offending, violent type of offending, particularly in relationships of this kind …
I put to one side the question whether, in those circumstances, the applicant ought now be permitted to raise the contention. Focussing upon the substance of the matter, I consider that the concession below was rightly made. In my opinion, the authorities cited in this Court do not establish that her Honour fell into error in concluding that, in the circumstances of this matter, general deterrence was an important sentencing consideration.
In Schwabegger, the Australian Tax Office conducted an industry-wide audit of the taxation affairs of certain persons for the financial years 1 July 1983 to 30 June 1988. The audit was conducted in 1989. It soon appeared, according to the investigation, that Schwabegger had evaded payment of more than $300,000 in personal tax. He was then interviewed on a number of occasions between early 1989 and May 1991. He then entered into an agreement to pay the Australian Taxation Office something in the order of $560,000 including penalties. He paid that amount. The matter was referred to the Australian Federal Police in October 1992. It was not until early 1997 that he was charged. Ultimately, he was sentenced in September 1997 to a period of imprisonment, of which part only was to be immediately served.
A majority of this Court concluded that the appeal should be allowed, and that the sentence imposed below should be varied so as not to require the appellant to serve any period in custody.
In these very unusual circumstances, Vincent AJA (as his Honour then was) observed that there was, in his opinion –
… a serious incongruity between the assertion that an offence is serious and that the courts must, through the sentences they impose, endeavour to limit its incidence, on the one hand, and such a leisurely progression of the criminal justice proceedings which follow its commission that literally years pass before the matters comes before the court, on the other. For a number of reasons, the investigation and prosecution of criminal conduct should be conducted as quickly as is reasonably practicable if the objectives of the system are to be attained.[5]
[5]Schwabegger [1998] 4 VR 649, 659.
His Honour said also that –
… assertions of the need to deter generally lose force if the process otherwise does not appear to reflect commitment to the principle.[6]
[6]Ibid, 660.
In that case, all the material which was necessary to lay a charge against the applicant was established years before a charge was laid. The delay was solely attributable to the dilatory behaviour of the prosecuting authority.
In Toomey, the offender was convicted of indecent assaults committed upon young persons long before. The silence of the victims for a prolonged period was attributable to their embarrassment and shame. The offender had rehabilitated, at least to an extent, in the interim. Nonetheless, it was said by this Court that general deterrence was of very considerable significance.
That was a case, where, by contrast with Schwabegger, the delay in prosecution was attributable to the effects of the offender’s conduct upon his victims.
It is to be noted that it was Vincent JA who stated that general deterrence could be of very considerable significance in cases involving long delay, and that it was in the particular case. His Honour observed that:
The respondent offended against ten separate victims, all of whom were quite young and were not only directly under his control but in a physical situation where they were effectively powerless. In consequence of their youth, personal circumstances and the fear that they might be further singled out as subjects for corporal punishment, they remained silent. The situation, in this respect, can be seen to be similar to many encountered in the courts where there has been the sexual abuse of young persons. Often such victims, experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years. Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards. Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration.[7]
[7]Toomey [2006] VSCA 90 [17].
In my opinion, the true position is that, in particular circumstances exemplified by Schwabegger, the professed importance of general deterrence as a sentencing consideration will be contradicted by the dilatory behaviour of investigators or by a prosecuting authority. But where delay in prosecution is explained by the understandable reluctance of a victim to come forward, it will be otherwise. There may be cases, I add, in which these two features are present to varying extent.
The judge found that –
It took [HP] many years to finally report your crimes to police. As I said, there were some five statements over a lengthy period of time. There was considerable delay, partly because of [HP’s] fear and trauma and then even further delay caused by change in investigators’.
It was submitted for the Crown that HP’s delay in reporting the offending conduct was analogous to the delay in reporting sexual abuse inflicted upon a person in childhood. The analogy is far from complete, but I think that it is not without some substance. Moreover, it is the fact that the complainant continued to press the matter – as is reflected by the fact that she made five statements to police over the ten year period. Delay in that period was at odds with her attempt to invoke the criminal justice system. Regrettably, the police were, for one reason or another, dilatory in pursuing the matter.
Consideration of the entirety of the circumstances does not at all persuade me that the judge erred in concluding that general deterrence was a factor of importance in the sentencing synthesis. Upon full analysis, the delay was not shown to contradict the asserted importance of that factor.
Absent specific error, I turn to the complaint that the sentence imposed was manifestly excessive.
I should say at the outset that the judge was faced with a very difficult sentencing task.
The outstanding features of the matter were first, the savagery and duration of the attack encompassed within the single charge; and second, the very great delay, in a case of this kind, in the matter being brought before a court. Within my experience, both features were unparalleled.
Both counsel agreed, in answer to my question, that these were the outstanding features of the matter.
The savagery and duration of the attack, grave in itself, was productive of the permanent physical disabilities, and the persisting mental upset, to which I have earlier referred. Notwithstanding the elapse of time, the offending called strongly for just punishment, denunciation, and a sentence in which general deterrence played an important role.
It is the fact, I add, that the applicant was an abuser of illicit drugs and alcohol in the period of his relationship with the victim. But the judge found, and her finding is not challenged, that there was ‘no evidence that drugs and/or alcohol was a significant or major contributor to your offending on this occasion’. There is no occasion to consider what impact a different finding about that matter might have had on sentence.
But then there is the simple fact of very long delay. Even if the delay until the victim first went to the police in 2003 could be equated, by analogy, with the long delays in complaint often encountered in cases of sexual offences against children, there was either unexplained, or otherwise unsatisfactory explanation for, delay in the investigative process.
As a matter of fairness to the applicant, delay had to be given very considerable weight in the sentencing synthesis.
Also running in the applicant’s favour was the fact that, in the period of long delay, the applicant had, as the judge found, reformed. He had come to live a useful life. He had weaned himself off illicit drugs, and reduced his intake of alcohol. Pertinent criminal behaviour had ended in the latter half of the 1990s. The applicant had a stable relationship. There was a 12 year old child of the relationship. The applicant was in regular employment through labour contracting companies. These matters, also, stood in substantial mitigation of sentence.
Another aspect of the delay was that the applicant was now to be sentenced as an adult offender. Had he been brought before a court for sentence in, say, 1990, he would have been sentenced as a young offender. A Youth Training Centre disposition would have been available.
The issue of lost youth, however, is somewhat two-edged. It is true that, if the applicant had been brought before a court in 1990, he could have been ordered to be detained in a Youth Training Centre. But having regard to the circumstances of the offending, it is quite possible that he would have been ordered to serve any term of imprisonment in an adult prison. That was a matter to which the judge adverted in argument on the plea.
Next, had the matter come before a court long ago, as a young person the applicant could have called in aid the importance of the prospect of rehabilitation as a sentencing consideration. But that would have been a matter of prospect only. By contrast, the matter having come before a court in recent times, the applicant has been able to demonstrate actual rehabilitation.
Again, long after the event, the applicant, through a forensic psychologist, has offered some explanation for his offending: immaturity, impulsivity and stupidity, all set in the context of illicit drug use and alcohol abuse. Whether such an explanation could have been successfully advanced those many years ago is speculative.
Then there is the fact that, had the applicant been sentenced many years ago, the maximum penalty for the offence would have been lower than it now is. But the applicant lost nothing in that connection by the delay. He fell to be sentenced by reference to that lower maximum penalty.
Apart from the matters thus far mentioned – directly or indirectly associated with the delay in the applicant being charged – there was also to be brought to account in his favour the judge’s conclusion that his guilty plea was indicative of remorse. Whether or not that finding might be regarded as having been unduly favourable to the applicant is beside the point.
Something more must be said about sentencing practice. It was established by Stalio v The Queen[8] that the mandated requirement to have regard to ‘current sentencing practices’ – see s 5(2) of the Sentencing Act 1991 – is a reference to sentencing practices at time of sentence. On the other hand, the principle of equal justice makes it relevant to consider sentencing practices at the time of the
commission of historical offences so far as such practices can be satisfactorily established. The fact that the maximum penalty for an offence has increased between the date of offending and the date of sentence may itself cast some light on sentencing practices at time of offending, for instance, by adding to what little use can ordinarily be made of recourse to bare sentencing statistics.
[8](2012) 223 A Crim R 261.
Applicant’s counsel referred us to certain sentencing statistics that were unavailable to the sentencing judge. They were ‘raw’ statistics, in that they did not enable comparability of the circumstances of the offending and offender in this case to be set against the like circumstances of any case referred to in the statistics. All that can be said of the statistics, in my view, is that they generally support a conclusion that, as might be expected, sentences were somewhat lower when the maximum penalty for the offence was lower; but that, nonetheless, a bad case could attract a sentence in the range of seven to ten years’ imprisonment.
I said earlier that the task which confronted the judge in fixing upon a sentence was a difficult one. In the end, in all the circumstances which I have outlined, I am simply not persuaded that the sentence which her Honour imposed – either as to the head term or the non-parole period – was outside the sound exercise of the sentencing discretion. That is enough to dispose of the matter adversely to the applicant. But I would not want it thought that it is my opinion that the sentence imposed, though within the permissible limits of the judge’s discretion, was harsh. I consider, not that it is determinative, that the sentence was a sound one.
Orders
I would grant the applicant leave to appeal, but would dismiss the appeal.
NEAVE JA:
For the reasons given by Ashley JA, I would also grant the applicant leave to appeal, but dismiss the appeal.
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