Director of Public Prosecutions v Darcy-Shillingsworth

[2017] NSWCCA 224

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224

Hearing dates:

11 September 2017

Decision date:

13 September 2017

Before:

Basten JA at [1];
Beech-Jones J at [99];
Fagan J at [104]

Decision:

(1) Allow the appeal by the Director pursuant to the Criminal Appeal Act 1912 (NSW), s 5D.

 

(2)   Set aside the sentences imposed in the District Court on 26 May 2017 and 28 July 2017.

 

(3)   Resentence the respondent as follows:

 

(a)   in relation to counts 1, 3 and 4, impose an aggregate sentence comprising a non-parole period of 15 months deemed to have commenced on 26 May 2017, with a balance of term of 15 months giving a sentence of 2 years 6 months;

 (b)   direct that the respondent be released on parole on 25 August 2018.

Catchwords:

CRIME – sentencing – aggregate sentence – whether aggregate sentence can be suspended – whether necessary to determine – Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

 

CRIME – sentencing – whether suspended sentence “contrary to law” – effect of reopening sentence if not contrary to law – whether necessary to determine – Crimes (Sentencing Procedure) Act 1999 (NSW), s 43

  CRIME – sentencing – prosecution appeal against inadequate sentences – suspended sentences of imprisonment in relation to three offences involving domestic violence – whether objective seriousness of offending recognized – importance of specific and general deterrence – weight to be given to standard non-parole periods – whether non-custodial sentence manifestly inadequate – residual discretion to intervene

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), s 68A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A, 24, 43, 44, 45, 46, 47, 48, 50, 51, 53, 53A, 54A, 99, Pt 2, Div 3; Pt 3; Pt 4, Div 1
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 1[4]
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 3.2
Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), Sch 2[14]
Crimes Act 1900 (NSW), ss 33, 33B, 35, 59, 86
Crimes and Courts Legislation Amendment Act 2006 (NSW), Sch 1.9
Crimes and Courts Legislation Amendment Act 2006 (NSW), Sch 1.9[2]
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Procedure Act 1986 (NSW), s 166
Interpretation Act 1987 (NSW), s 35

Cases Cited:

Aubrey v The Queen [2017] HCA 18
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Burnard v The Queen [2009] NSWCCA 5; 193 A Crim R 23
Cherry v R [2017] NSWCCA 150
Drew v R [2016] NSWCCA 310
McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Pattalis v R [2013] NSWCCA 171
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Coleman (1990) 19 NSWLR 467
R v Dungay [2012] NSWCCA 197
R v Egan [2013] NSWCCA 196
R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94
Regina v RM [2015] NSWCCA 4
The Queen v Kilic [2016] HCA 48; 91 ALJR 131

Texts Cited:

Parliamentary Debates, Legislative Assembly, Hansard, 27 October 2006

Category:

Principal judgment

Parties:

Director of Public Prosecutions (Applicant)
Guy Allan Darcy-Shillingsworth (Respondent)

Representation:

Counsel:
B K Baker (Applicant)
R Wilson/A Ahmad (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Applicant)
Aboriginal Legal Service (NSW/ACT) Ltd (Respondent)

File Number(s):

2016/95643

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 May 2017

Before:

Williams ADCJ

File Number(s):

2016/95643

Judgment

1. BASTEN JA: On the evening of 25 March 2016 the offender, Guy Allan Darcy-Shillingsworth, became embroiled in an argument with his partner of 12 years standing, Hayley Stanton. The coupled lived with their three children at Goodooga, a small town with a largely Aboriginal population close to the New South Wales/Queensland border. It is north-west of the somewhat larger community at Lightning Ridge.

2. In the course of the evening, the offender struck Ms Stanton with sufficient force to cause her to fall backwards to the ground. She was holding in her right hand a bottle of beer which smashed when she hit the floor, causing a deep wound to her hand and wrist (this conduct was the subject of count 1). She said that she needed to go to hospital, to which the offender replied that she could go by herself. She then called her mother who brought bandages to the house and bandaged her hand.

3. Somewhat later on the same evening the offender was driving Ms Stanton around the streets of Goodooga doing burnouts in his vehicle (count 2). Ms Stanton’s father, Thomas Stanton was woken and followed the car back to the home occupied by the offender and Ms Stanton.

4. When the offender and Ms Stanton arrived home, the offender hit her in the face while she was still in the car, pulled her from the car and hit her again, knocking her to the ground (count 3). Mr Stanton then approached and said that he was calling the police. The offender then hit Ms Stanton in the chest with both fists causing her to fall to the ground again. As Mr Stanton was dialling triple zero, the offender moved towards him, grabbed his mobile phone from him and threw it on the road. He then punched Mr Stanton in the face and jaw a number of times. Mr Stanton was forced backward until his foot caught against a septic tank cover. The offender then punched him again in the head, knocking him over, so that he fell causing a displaced fracture to his right ankle (count 4).

5. The police arrived approximately one hour later, from Lightning Ridge. The offender was later arrested and charged with four offences, namely:

Count 1: reckless wounding of Hayley Stanton, being reckless as to causing her actual bodily harm, contrary to s 35(4) of the Crimes Act 1900 (NSW);

Count 2: detaining Hayley Stanton with the intention of obtaining an advantage, namely psychological satisfaction, contrary to s 86(1)(b) of the Crimes Act;

Count 3: assaulting Hayley Stanton occasioning actual bodily harm to her, contrary to s 59(1) of the Crimes Act;

Count 4: causing grievous bodily harm to Thomas Stanton, being reckless as to causing him actual bodily harm, contrary to s 35(2) of the Crimes Act.

6. The offender entered pleas of not guilty to all four counts and was tried by a jury. He was convicted on counts 1, 3 and 4 and acquitted on count 2.

7. As a result of an earlier outburst of violence in March 2015, apprehended domestic violence orders had been made against the offender for the protection of both Hayley Stanton and her father. Breaches of those orders were taken into account on a certificate pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW).

8. The jury returned its verdicts on 31 March 2017. On 26 May 2017 the offender appeared before Acting Judge J Williams in the District Court at Dubbo and was sentenced on counts 1, 3 and 4. With respect to count 1, the offender was sentenced to 150 hours of community service. With respect to counts 3 and 4, the judge imposed an aggregate sentence of 21 months imprisonment, which he suspended upon the offender entering into a bond to be of good behaviour, pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”).

9. On 27 June 2017 the Director of Public Prosecutions filed a notice of appeal pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) alleging that “the sentence [sic] pronounced was manifestly inadequate.”

10. The matter came back before the sentencing judge on 28 July 2017, apparently at the request of the offender’s counsel. The issue raised was a decision of this Court (discussed below) which was thought to prohibit the imposition of a suspended sentence where the sentence was an aggregate sentence. No doubt conscious that an appeal against sentence had already been lodged by the Director, counsel for the offender indicated that the original orders made by the sentencing judge would be supported as a correct exercise of power when the matter came before this Court. Nevertheless, with the apparent agreement of both counsel, the judge accepted that he had imposed a sentence contrary to law and made orders correcting that error pursuant to s 43(1) of the Sentencing Procedure Act. He proceeded, largely in accordance with the indicative sentences which had been noted in passing the aggregate sentence, to impose individual sentences of six months imprisonment on count 3 and 18 months imprisonment on count 4. Both sentences were then suspended upon the offender entering a bond to be of good behaviour for 18 months.

11. On 7 September 2017 the Director filed an amended notice of appeal separately challenging the (unaltered) community service order with respect to count 1 and the separate sentences imposed with respect to counts 3 and 4, each of which had been suspended.

12. The Director’s appeal against the sentences was listed for hearing on 11 September 2017. However, on 5 September 2017 the offender filed an application to vacate the hearing date. He did so on the basis that he was seeking advice as to whether to appeal against his convictions. On 1 September 2017 R A Hulme J made a direction refusing the application but noting that the applicant could, if he wished, renew the application at the hearing of the appeal.

13. On 5 September 2017 the offender’s solicitor filed an affidavit setting out the circumstances in which it was sought to vacate the hearing date, together with written submissions prepared by counsel in support of the vacation of the hearing date. The application was renewed, with oral submissions by both parties on the morning of 11 September. The Court made an order refusing the application, but reserving its reasons, which were to be delivered with its judgment on the Director’s appeal. Those reasons are set out below.

14. Before turning to that matter, it is convenient to identify a further antecedent issue to be addressed before dealing with the appeal. It arises from a doubt as to whether the imposition of a suspended aggregate sentence was in fact contrary to law. If it were, the separate suspended sentences imposed on 28 July 2017 were properly the subject of the Director’s appeal. However, if the suspended aggregate sentence was not contrary to law, there was an issue as to whether the sentencing judge had the power to vary it. If he did not, the original sentences stood and there was then a question as to whether the Director should be allowed to resurrect the original appeal against those sentences. The Director maintained, without opposition, that both sets of sentences were manifestly inadequate.

15. It is convenient to deal with the issues in the following order:

1. refusal to vacate hearing date;

2. availability of a suspended aggregate sentence;

3. if the original sentences were valid, whether the resentencing resulted in valid sentences;

4. whether the sentences were manifestly inadequate;

5. if so, whether this Court should intervene to resentence, and

6. if so, how the offender should be resentenced.

Vacation of hearing date

16. As a matter of principle, in circumstances where an offender has been given a non-custodial sentence and the Director seeks to appeal on the basis that only a custodial sentence was appropriate in the circumstances of the offending, the appeal should be dealt with expeditiously. The importance of prompt notice being given to the offender of any intention to appeal against the inadequacy of the sentence is well recognised. Although the discretion not to intervene is not to be exercised on the basis that there is an “element of double jeopardy involved in the respondent being sentenced again”,[1] delay is a factor which militates against intervention. Accordingly, all parties now expect that an appeal against inadequacy of sentence will be listed for a prompt hearing. Generally, such a listing will not be delayed or, if made, vacated, on the basis of the mere possibility of an appeal against conviction.

    1. Crimes (Appeal and Review) Act 2001 (NSW), s 68A.

17. In support of the application to vacate, it was said on the offender’s behalf that he had made a “pragmatic” decision not to pursue the possibility of an appeal when he was subject to a non-custodial sentence. (It is not clear whether the possibility was considered between the verdict and sentence.) By inference, the question of appeal was only pursued because of the possibility that a custodial sentence might be imposed. It is said that advice had been received from trial counsel, “that there were issues with the admission of context evidence, limitations on cross-examination on prior inconsistent statements and … mischaracterisation of the applicant’s case at trial.” It was said that “the transcript of the judge’s rulings on the admissibility of evidence” was not available.

18. It cannot be said that this material raises anything more than the mere possibility of an appeal against conviction. It is by no means clear what attempts have been made to obtain transcripts, or when they had been made. On the assumption that the rulings of admissibility followed objection by counsel, counsel must have known the basis of the objection and either he or his instructing solicitor would presumably have been in a position to make a note of the grounds on which it was rejected.

19. In any event, without there being any means beyond speculation of knowing whether an appeal will be filed, and if so when, the application to vacate the hearing of the Director’s appeal was refused.

Suspension of an aggregate sentence

20. The sentencing judge resentenced the offender in July 2017 on the basis that the original suspended aggregate sentence imposed in May was “a penalty that is contrary to law” within the meaning of s 43(1) of the Sentencing Procedure Act. That section provides that, in such a circumstance, the court “may reopen the proceedings … and … may impose a penalty that is in accordance with the law”. [2]

    2. Sentencing Procedure Act, s 43(2).

21. The basis on which it was contended that the original sentence was in error was a finding of this Court in Regina v RM. [3] That case involved a prosecution appeal against the leniency of sentences imposed on a series of sexual offences committed against a child. The appeal was upheld on a number of grounds. In particular, ground 7 challenged a penalty imposed by way of a suspended aggregate sentence with respect to two offences. This ground was upheld, the joint reasons stating:[4]

    3. [2015] NSWCCA 4.

    4. Judgment of Ward JA and Wilson J, R A Hulme J agreeing at [171].

“[53]   The Crown contends that his Honour erred by suspending the execution of the aggregate sentence that had been imposed on the charges in sequence 20 and sequence 16 (offences 6 and 7). Again, the respondent concedes error on the part of the sentencing judge in this regard.

[54] Section 12(3) of the Crimes (Sentencing Procedure) Act 1999 provides that, subject to s 99(1), which has no application in the present case, Part 4 of the Act does not apply to a sentence of imprisonment the subject of an order under s 12.

[55] Section 53A in Part 4 of the Act empowers the court to impose an aggregate sentence of imprisonment. The respondent accepts that there was no power to make an order suspending the execution of the aggregate sentence.

[56]   In R v Egan [2013] NSWCCA 196 (at [82]-[83]), this Court said:

‘Part 4 of the Crimes (Sentencing Procedure) Act does not apply when a sentence of imprisonment is suspended: s 12(3). Part 4 includes s 47, which provides for the commencement of sentences and a power to order that a sentence be served consecutively, or partly concurrently and partly consecutively, with some other sentence of imprisonment. It follows that there is no power to back-date or post-date a sentence of imprisonment that is suspended and, where there are multiple sentences to be imposed, there is no power to order any degree of accumulation.

It follows that where a court is sentencing for multiple offences, it is necessary to have regard to what the overall term of the sentence should be before considering whether an alternative to full-time imprisonment is appropriate: Burnard v R at [111].’”

22. Counsel for the Director submitted that this Court would follow RM unless persuaded that it was “plainly wrong”. However, while it may well have been appropriate for the District Court to apply the principle accepted in RM, this Court is not constrained in considering the issue afresh, as the approach adopted in RM was based on a conceded error. The reasoning was, understandably, succinct. The concession was noted twice in four paragraphs, namely at [53] and [55]. The concession was based upon an understanding of s 12 of the Sentencing Procedure Act. It is convenient to refer to the terms of that provision, as it currently reads.

12   Suspended sentences

(1)   A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:

(a)   suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and

(b)   directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.

(2)   An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.

(3) Subject to section 99(1), Part 4 does not apply to a sentence of imprisonment the subject of an order under this section.

(4)   An order under this section may be made after a court has decided not to make a home detention order in relation to the sentence of imprisonment.

23. It is necessary to exercise some caution in construing s 12(3). The exception in s 99(1) operates with respect to the revocation of a good behaviour bond entered under s 12(1)(a). Once the bond is revoked, the order of suspension ceases to have effect. Section 99(1)(c) then provides that “Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies relation to the setting of a non-parole period under that Part.” Section 24 (which appears in Part 3) relevantly provides that in sentencing an offender the court must take into account “the fact that” the offender has been the subject of a good behaviour bond and “anything done by the offender in compliance with the offender’s obligations under the … bond.”[5] Section 99 therefore envisages that a non-parole period will not have been specified with respect to the sentence, a course which would be undertaken pursuant to Pt 4. It may also be assumed that the commencement date of the sentence will not have been specified, or at least will not be operative, in circumstances where the good behaviour bond is in fact entered into.

    5. Sentencing Procedure Act, s 24(b).

24. The reason why Pt 4 does not apply is that Pt 4 governs, in accordance with its heading, “Sentencing procedures for imprisonment”; a suspended sentence under s 12 appears in Pt 2, Div 3 which is headed “Non-custodial alternatives”. (Headings of Parts and Divisions are taken to be part of the Act. [6] ) Nevertheless, a precondition to the making of an order under s 12(1) is a determination by the court that it should impose a sentence of imprisonment, albeit a sentence of not more than 2 years. [7] As the extract from R v Egan [8] explains, “where a court is sentencing for multiple offences, it is necessary to have regard to what the overall term of the sentence should be before considering whether an alternative to full-time imprisonment is appropriate”. That statement derived from an earlier decision in Burnard v The Queen. [9] In Burnard, the Director had submitted that the sentencing judge had committed two errors. The second was identified as follows:[10]

“2.   The sentencing judge had improperly decided to suspend each of the sentences of imprisonment he would impose, before considering questions of totality and concurrence and accumulation of sentences. The Crown referred to R v JRD [2007] NSWCCA 55 especially per Howie J at [33]. It was submitted that, although the sentencing judge had referred to the issue of totality in this part of his remarks on sentence, he had done so, only after having decided that the sentences of imprisonment should be suspended and the sentencing judge had in truth never adequately considered the issue of totality.”

6. Interpretation Act 1987 (NSW), s 35(1).

7. Sentencing Procedure Act, s 12(1).

8. [2013] NSWCCA 196 at [83], set out in RM at [56].

9. [2009] NSWCCA 5; 193 A Crim R 23 at [111].

10. Burnard at [102].

25. James J (with whom Tobias JA and Price J agreed) stated:

“[111]   As to the second of the two submissions, I am, however, of the opinion that the sentencing judge, as a judge sentencing an offender for multiple offences, was required to give consideration to questions of totality and to what extent the sentences for different offences should be made concurrent or cumulative, before making any decision to suspend the execution of any of the sentences. Such a consideration would necessarily involve a determination of what would be appropriate sentences for all of the offences, before determining whether any of the sentences should be suspended.

[112] Such a consideration would be required, in order to determine whether, having regard to the restrictions in s 12 of the Crimes (Sentencing Procedure) Act on the making of orders suspending the execution of sentences of imprisonment, it would even be open to suspend the execution of a particular sentence and in order to ensure that the sentences for the individual offences would be consistent with each other. Very importantly, such a consideration would be necessary in order to give effect to the sentencing principle of totality, ‘that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct’ (see R v Weldon (2002) 136 A Crim R 55 per Ipp JA at 62 [46]).

[113]   As was stated by Howie J in JRD at [33]:-

‘So when a court is sentencing for multiple offences and before it imposes the sentence for any one offence, it will have considered the outcome for all offences. It will have done so for at least two reasons: firstly, in order to ensure that the court imposes sentences that fall within statutory limitations, that are consistent with sentencing principles and that do not conflict with one another. Secondly it will ensure that the overall sentence imposed reflects the overall criminality of the offences before the court.’

[114]   In the present case I consider that the sentencing judge’s remarks on sentence indicate that his Honour decided to suspend each of the sentences for imprisonment he would impose, before considering the questions of totality and the extent to which the sentences for the different offences should be made concurrent or cumulative. His Honour then gave only limited effect to the principle of totality by imposing a number of fines in addition to the sentences of imprisonment for 12 months. The shift in his Honour’s remarks from holding that a period of 12 months imprisonment which was suspended would be justified, having regard to the nine charges, to holding that sentences of imprisonment of 12 months should be imposed on four only of the charges and that fines should be imposed on the other five charges indicates that his Honour had not properly considered the question of totality before deciding that sentences of imprisonment should be suspended.

[115]   A consequence of the sentencing judge’s failure to apply properly the principle of totality was that four fully concurrent suspended sentences of the same length were imposed, even though the sentences were for four different offences by the respondent involving four different victims, and the aggregate sentence for these four offences did not reflect the total criminality in the four offences.”

26. An order under s 12 suspending a sentence of imprisonment cannot be made until an appropriate sentence has been determined. General law principles and statutory provisions relevant to the determination of the individual sentence must therefore continue to operate in relation to the sentence imposed pursuant to s 12(1). Consistently with that scheme, s 12(3) as originally enacted, provided that, “Part 4 does not apply to a sentence of imprisonment the subject of an order under this section except to the extent to which it deals with setting the term of the sentence.” While the purpose was clear, the language was confusing, because Pt 4, Div 1 was headed “Setting terms of imprisonment” and included numerous provisions which might be thought inappropriate to setting the term of a sentence which was to be suspended, including setting a non-parole period (ss 44-46), directing when the sentence is to commence (s 47), providing information about eligibility for release on parole (s 48) and the making of parole order (ss 50 and 51).

27. The first amendment to this provision was consequential upon the introduction of the standard non-parole periods, which commenced on 1 February 2003. [11] The result was that Pt 4 did apply “to the extent to which it deals with setting the non-parole period and the balance of the term of the sentence.” The effect of the amendment was twofold; first, it either assumed or ensured that a non-parole period would be fixed for a sentence, even where the sentence was to be suspended. Secondly, it ensured that the new guideline, namely standard non-parole periods, would operate when fixing a sentence for an offence to which such a standard applied.

    11. Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 1[4], introducing Pt 4, Div 1A; Sch 3.2[3].

28. The third amendment occurred in 2006 when the exception was removed from s 12(3), leaving the blanket statement that Pt 4 does not apply to a sentence the subject of an order under s 12. [12]

    12. Crimes and Courts Legislation Amendment Act 2006 (NSW), Sch 1.9[2].

29. The purpose of that amendment was explained in some detail in the second reading speech for the Bill, in the following terms: [13]

“Item [2] deals with suspended sentences by amending section 12(3) to abolish the practice of setting the non-parole period of the sentence, at the time of imposing a suspended sentence. The current laws regulating imposing, and revoking, suspended sentences, require that the non-parole period of the suspended sentence is set at the time the sentence is imposed. Then, if the suspended sentence bond is later revoked, the court may only determine whether the sentence is to be served by way of full-time custody, periodic detention or home detention.

This current procedure prevents the courts from complying with section 24 of the Crimes (Sentencing Procedure) Act, which requires that where a person who has been subject to a bond is to be sentenced, the court must at the time of imposing sentence take into account ‘anything done by the offender in compliance with the offender's obligations under the order or bond’. The current scheme does not allow the court to take into account whether a person has substantially complied with the bond and requirements to undertake Probation and Parole Service supervision. The proposed amendment will enable the court to take such matters into account when sentencing.”

13.    Parliamentary Debates (Hansard), NSW Legislative Assembly, 27 October 2006 at pp 3664-3665.

30. That purpose is confirmed by a consideration of the changes to s 99, dealing with the consequences of revoking a good behaviour bond. As enacted, s 99 provided:

99   Consequences of revocation of good behaviour bond

(1)   If a court revokes a good behaviour bond:

…

(c) in the case of a bond referred to in section 12:

(i) the order under section 12(1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and

(ii)   Part 4 applies to the sentence, except to the extent to which it has already applied in relation to setting the term of the sentence, and

(iii)   subject to the requirements of Part 4 having been complied with, the sentence takes effect.

31. The 2002 amendments, consistently with the change to s 12(3), added reference in s 99(1)(c)(ii) to setting “the non-parole period and the balance of” the term of the sentence. [14]

    14. Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), Sch 3.2[6].

32. The 2006 amendments replaced par (c)(ii) with the following:[15]

(ii) Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part.

As noted in the second reading speech, the purpose of requiring the court to have regard to s 24 was to ensure that in imposing a sentence following revocation, the court took account of the conduct of the offender in compliance with the bond.

15. Crimes and Courts Legislation Amendment Act 2006 (NSW), Sch 1.9[3].

33. Neither s 12 nor (relevantly) s 99 has been amended since 2006.

34. The introduction of a non-custodial penalty in the form of a sentence of imprisonment suspended upon the offender entering into a bond to be of good behaviour for a period no longer than the term of the sentence involved the reconciliation of two conflicting goals. First, it was necessary to fix a term of imprisonment in accordance with standard sentencing principles. Secondly, the term was not to have effect unless there was a breach of the bond, leading to revocation. At that point it was necessary to reconsider the penalty which should be imposed in the light of the conduct of the offender since the original sentence. With that in mind, the legislature vacillated as to whether it was appropriate to fix a non-parole period for the original sentence and, if so, how that should affect the further sentencing exercise on revocation of the bond. The current resolution of that conflict is to have the original sentencing court fix the term of the sentence, without identifying a non-parole period, or a commencement date. It follows that where there is more than one offence for which a sentence must be fixed, there can be no accumulation because the court does not fix the commencement date of the individual sentences.

35. When the table of standard non-parole periods was introduced into the Sentencing Procedure Act, it was logical to place it in Pt 4, which contained other provisions dealing with the fixing of non-parole periods. When it was thought appropriate that the original sentencing court should fix both the term of the sentence and the non-parole period, the court would clearly have regard to the standard non-parole period, even if the sentence was suspended in accordance with s 12. However, with the change in policy, so that the original sentencing court no longer fixed a non-parole period, the standard non-parole period did not become irrelevant to the exercise of fixing the term of the sentence; it remained, like the maximum penalty, an important guideline to which the original sentencing court would be expected to have regard. The amendments in 2006, as revealed in the second reading speech, were not intended to remove appropriate consideration being given to the standard non-parole period in fixing the term of the sentence. Although it is not necessary to determine the question for the purpose of this case, the better view appears to be that a court sentencing a person for an offence to which a standard non-parole period applies should not disregard the existence of that guideline even if a decision is made ultimately to suspend the sentence. Indeed, this Court has adopted that approach, albeit without considering the effect of s 12(3): see R v Dungay,[16] discussed below.

    16. [2012] NSWCCA 197 at [26]-[34].

36. There are other provisions in Pt 4 which cannot sensibly be disregarded by a court in fixing a term of imprisonment which may be subject to an order for suspension. Thus, as enacted, Pt 4 contained s 53, which was in the following terms:

53   Multiple sentences of imprisonment

(1)   When a court imposes more than one sentence of imprisonment on an offender, the court must comply with the requirements of this Division in relation to each sentence.

(2)   The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

37. On one view, s 53, requiring the application of Pt 4 with respect to each sentence, is manifestly inconsistent with s 12(3) which, in terms, now denies any application of Pt 4. However, s 53 also reflected a general law principle articulated in the joint reasons of McHugh, Hayne and Callinan JJ in Pearce v The Queen:[17]

“To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

Even if the judge proposing to suspend a sentence did not fix a non-parole period or a commencement date, in order to suspend multiple sentences, effect had to be given to the obligation to fix a separate appropriate sentence for each offence. Arguably, that was done in compliance with s 53.

17. (1998) 194 CLR 610; [1998] HCA 57 at [45].

38. In 2010, Pt 4 was amended by the addition of s 53A, permitting a court to impose an aggregate sentence of imprisonment with respect to all or any of two or more offences, instead of imposing a separate sentence of imprisonment for each. [18]

    18. Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), Sch 2[14].

39. Just as the court sentencing for multiple offences before the commencement of s 53A (on 14 March 2011) was required to comply with the principle of imposing separate sentences pursuant to s 53, and Pearce’s case, thereafter, there would be no sound policy reason for not allowing the court to consider, where appropriate, imposing an aggregate sentence as a sentence to which s 12 might apply. Indeed, the reason for providing such a power clearly operates in relation to the determination of whether or not to suspend a sentence. Any sentence of imprisonment may be suspended if it is for a term of not more than 2 years. [19] Where an offender is sentenced for three separate offences involving different victims and each warranting a sentence of 2 years imprisonment, it will not be apparent, in circumstances where the judge is not able to accumulate sentences, as to whether the overall sentence period is greater than 2 years, except to the extent that the degree of accumulation which would have been imposed is revealed by the judgment. By contrast, the formulation of an aggregate sentence would be transparent, because it would reveal the total term of imprisonment thought appropriate. If that term exceeded 2 years, the sentence could not suspended.

    19. Sentencing Procedure Act, s 12(1).

40. Having regard to the operation of s 53A, and its inter-relationship with s 12(3), two approaches are possible. One, being that outlined above, is to read down the apparent blanket disapplication of Pt 4 as not engaging factors to be taken into account in determining the length of a sentence to be imposed. That might be seen to include the exercise of the power to impose a single sentence for multiple sentences, as now provided in s 53A. That is because the absence of such a power prior to March 2011 was properly sourced to s 53, which also appeared in Pt 4. If s 12(3) did not free the court from the obligation to impose separate sentences for each offence, as it clearly did not, there is no reason for reading s 12(3) as disapplying s 53A, to the extent that it qualified s 53.

41. The alternative approach is to understand the amendment made by the addition of s 53A as impliedly limiting the operation of s 12(3), which would otherwise have an ambulatory effect of picking up and disapplying any subsequent amendment to Pt 4.

42. On either approach, s 12(3) should not be read as precluding the imposition of a suspended sentence where the sentence is an aggregate sentence.

Consequence of upholding aggregate sentence

43. If the foregoing reasoning is erroneous, there was no dispute that s 43 of the Sentencing Procedure Act allowed the sentencing judge to take the step of reopening his earlier judgment and imposing separate sentences for each offence. The Director’s appeal in that regard would remain effective. However, if the foregoing analysis is correct, the imposition of an aggregate sentence which was then suspended was not contrary to law and the power in s 43 was not engaged. In that situation, there is a question as to whether the second sentencing exercise was invalid, so that the substituted sentences have no effect. No doubt the validity of those sentences can be determined on appeal, but neither party in fact challenged their validity.

44. In Director of Public Prosecutions v Edwards [20] the Victorian Court of Appeal was faced with the reverse of the problem identified above. Mr Edwards had entered a plea of guilty in the County Court to a charge of recklessly causing serious injury. The judge had imposed a sentence of 3 years imprisonment, which he then suspended. The power of suspension was not available with respect to such an offence unless dealt with summarily. There was no doubt that the order was made without power. The sentencing judge then vacated his original order and imposed a substitute order, being a 3 year community correction order. The majority (Weinberg JA and Williams AJA) found that, absent a statutory power to vacate the earlier sentence and substitute a fresh sentence, the sentencing judge was functus officio and the purported vacation of the earlier sentence was invalid. The subsequent sentences were also invalid.

    20. (2012) 44 VR 114; [2012] VSCA 293 (Warren CJ, Weinberg JA and Williams AJA).

45. This case is the reverse as, on the basis that the original order was not contrary to law, there was no statutory power to intervene; only if the original sentence was contrary to law was there a statutory power to reopen. The question concerning the validity of the substitute sentences only arises if the original sentence was valid.

46. Where there is inconsistency between the original orders and the substitute orders, there is a question as to whether the offender could be subject to both. Although it may have been intended that the later good behaviour bonds replaced or superseded the earlier bond, the record of the orders made on 28 July 2017 does not identify an order vacating the earlier orders. It may have been assumed that, if the aggregate sentence were invalid, the bonds were also invalid. The bond into which the offender was directed to enter on 26 May 2017 was said to commence on that date and continue for two years. It would therefore expire on 25 May 2019. The longer of the two bonds imposed on 28 July 2017 was required to be entered into within seven days and extended for 18 months. Assuming it was entered into on the last day (4 August 2017) it would expire on 3 February 2019. An issue would then arise as to whether conduct in apparent breach of the bonds which occurred between 3 February and 25 May 2019 involved a breach of the earlier bond. There could also be a question as to whether conduct which occurred between 26 May 2017 and 28 July 2017 constituted a breach of the earlier bond. It was common ground that there had been no breach of the bond as at the date of the hearing in this Court and, further, that the applicant had completed 30 hours of his community service work.

43. The Director submitted that the Court would not find it necessary to determine the validity of either set of orders, on the basis that the appeal against manifest inadequacy could be agitated in respect of both sets of orders. That approach was not opposed by the respondent. Although the better view is that the first orders were valid, and have not been rescinded, the Court should not determine the effect of the reopening of the sentencing or the imposition of the later sentences, but should address the merit of the Director’s appeal.

Challenge to adequacy of sentences

(1)   general approach to offending

48. Counts 1 and 3 both concerned violence against Ms Stanton. While they occurred in the course of a single evening, they were separated in time, although the temporal span was not established on the facts available to this Court. The prosecutor handed up a précis of the facts at the sentencing hearing, noting that the offender took objection to parts. The parts were not identified at any stage, but it is also true that the statement recounted evidence and statements of the victims, which may not have been accepted by the offender. Nevertheless, it is clear that some of the background to the events on 25 and 26 March 2016 would have been known to the sentencing judge as a result of presiding over the trial.

49. The judge stated that the offender and the victim had been in a domestic relationship for some 12 years, but that over a period of about three years prior to the offences, the relationship had deteriorated. He stated that “they became increasingly antagonistic towards each other, partly fuelled by alcohol and by Mr Darcy-Shillingsworth’s admitted infidelity to his partner.” [21] The judge recounted: [22]

“On 25 March 2016, they had been at home drinking in a situation of mistrust by Ms Stanton as to again, Mr Darcy-Shillingsworth’s fidelity towards their relationship. During an argument about tequila Mr Darcy-Shillingsworth pushed Ms Stanton in the chest while she was holding a bottle of beer in one hand. The push was hard enough to cause her to fall to the ground, the bottle in her hand broke and severely lacerated her right hand.”

21.    Judgment on sentence, 26/05/17, p 1.

22.    Judgment on sentence, 26/05/17, p 2.

50. The judge then noted that the offender “in his evidence at the trial, said that he merely nudged the complainant.” Why that statement was recounted is unclear; the judge did not say whether he accepted or rejected the evidence. It is unlikely that the jury accepted that evidence in finding that the offender, in wounding Ms Stanton, was reckless as to causing actual bodily harm to her.

51. Ms Stanton then wrapped her hand in a towel and said she needed to go to the hospital; the offender told her to go herself. She was not taken to Dubbo Base Hospital until the following day. In the meantime, the offender, in circumstances which are not recounted, drove Ms Stanton in his vehicle around various streets in Goodooga, doing burnouts, before returning to their home.

52. It was this performance which led Mr Stanton, who had been asleep, to follow the offender back to his home. The judge recounted (apparently accepting as accurate) Mr Stanton’s account of what he saw: [23]

“I got out of my vehicle, I saw Guy, that is Guy Darcy-Shillingsworth hit her in the car, Guy went around the passenger side and pulled her out and hit her again, she fell to the ground. Ms Stanton got up and saw me she come up to me and told me to go, she had bruises and a blood lump and her nose was bleeding she had marks on her chest area. I said ‘I’m not going home.’ Mr Darcy-Shillingsworth then frog marched her to the back door. Mr Stanton said ‘I’m calling the police’ and Guy said ‘You called the police before.’”

23.    Judgment on sentence, 26/05/17, p 2-3.

53. It was the blow to the chest which caused Ms Stanton to fall again, which constituted count 3, being a charge of assault occasioning actual bodily harm.

54. The judge noted that the reference to calling the police “was in relation [to] a prior incident involving a golf club where damage was done to the house and as a result of which AVOs were taken out.” The judge then returned to Mr Stanton’s account: [24]

“Guy was coming towards me he hit her on the chest with both fists and she fell over. I was dialling triple-0 before I knew it the phone was thrown out on the road. Guy was very angry I was punched several times to the jaw with a closed fist at least twice I grabbed him to get in closer, I didn’t hit him I had no chance but I was hit five or six times to the head and I was moving around trying to dodge him.”

24.    Judgment on sentence, 26/05/17, p 3.

55. The judge said that in moving backwards, Mr Stanton had caught his foot against a raised septic tank cover and when hit again had fallen over, fracturing his ankle “very badly”. The attack on Mr Stanton gave rise to count 4 on the indictment, alleging that the offender caused Mr Stanton grievous bodily harm, being reckless as to causing actual bodily harm to him. The harm was described in the following terms: [25]

“When Mr Stanton fell he sustained a fracture to the right tibia and fibula which needed plating and screwing at Dubbo Base Hospital, to where he was evacuated by air ambulance. As a consequence, Mr Stanton suffered deep vein thrombosis in his right calf and was prescribed anti-coagulants. As at 3 March 2017 he still has ankle pain, swelling, [decreased] sensation and increased pigmentation [on] the lateral side of his ankle. Mr Stanton was aged 48 at the time that he was assaulted.”

25.    Judgment on sentence, 26/05/17, p 6.

56. In a victim impact statement, Mr Stanton noted, in a passage recited by the sentencing judge:

“I have had many visits to the fracture clinic in Dubbo which is 450km away from home. I would say that I have been there at least 10 times since the attack. Every trip requires a large amount of money to be spent including petrol costs, accommodation and food whilst away. Those costs add up and have been putting a lot of financial strain/stress on me and my family.

I’ve got another appointment at the fracture clinic in July. The doctor was telling me that if my ankle hasn’t improved that I may need to have more surgery to fix it and replace the plates and screws.”

57. Mr Stanton described the effect on his work, the fact that he had exhausted all his sick leave, and that he was no longer able to play lawn bowls on the weekends as he had done.

58. With respect to the injuries to Hayley Stanton, the judge accepted that she had “various bruisings and abrasions as well as the injury to her hand”. [26] These were revealed in photographs in evidence. Ms Stanton said in her victim impact statement that she was advised to go to Sydney for complex surgery, given that the cut to her hand involved damage to a tendon. However, she was not willing to leave the children in Goodooga for long enough to undertake the trip, and accordingly had surgery in Dubbo. The surgery appears to have been successful although she stated that her hand “is still not 100 per cent”.

    26.    Judgment on sentence, 26/05/17, p 4.

59. Count 1, being the reckless wounding of Hayley Stanton, carried a maximum penalty of 7 years imprisonment and a standard non-parole period of 3 years imprisonment. In considering the aggravating features of the offence, the judge noted that it was committed in the victim’s home[27] and that the injuries sustained were “serious”. [28] In that sense, by inference, the injury caused by the offence was “substantial”.

    27. Sentencing Procedure Act, s 21A(2)(eb).

    28. Section 21A(2)(g).

60. By way of mitigating factors, the judge noted that the offences were not planned,[29] the offender had no criminal record,[30] that he was otherwise a person of good character,[31] he was unlikely to reoffend,[32] and had good prospects of rehabilitation. [33] Although the judge had referred to an apprehended domestic violence order taken out against the offender in 2015, he did not identify the breach of that order as an aggravating circumstance in relation to the offending generally. Rather, he noted, in favour of the offender, that “at the age of 30 [he] had not committed any domestic violence offences, or any alcohol related offences or indeed any offence at all.” [34]

    29. Section 21A(3)(b).

    30. Section 21A(3)(e).

    31. Section 21A(3)(f).

    32. Section 21A(3)(g).

    33. Section 21A(3)(h).

    34.    Judgment on sentence, 26/05/17, p 21.

61. In addressing the objective seriousness of the offences, the judge assessed that count 1 fell “towards the lower end of objective seriousness”, that count 3 fell between the low and mid-range of objective seriousness and that count 4, was “just below the mid-range of objective seriousness”. [35]

    35.    Judgment on sentence, 26/05/17, p 22.

62. The effect of the finding with respect to count 1 was that little weight would be given to the standard non-parole period of 3 years imprisonment. However, with respect to count 4, a finding that the culpability was just below the mid-range of objective seriousness suggested that significant weight should be given to the standard non-parole period of 4 years imprisonment as a guideline to the appropriateness of a sentence of full-time imprisonment.

63. The judge noted that the statistics available from the Judicial Commission indicated that 75% of offenders committing an offence of recklessly causing grievous bodily harm received full-time custody, and that 76% of offenders committing reckless wounding received full-time custody. He also considered statements and sentences in a series of cases, to some of which consideration will be given below. Beyond stating that the variety of circumstances made it difficult to discern any particular trend, no explicit reasoning was provided as to why the present circumstances did not warrant a custodial sentence, but rather a sentence of imprisonment which should be suspended.

(2)   reasoning of sentencing judge

64. The challenges raised by the Director as to the adequacy of the sentence focused on several aspects of the reasoning of the sentencing judge. In a small number of specific respects, it was said that the reasons were erroneous. In other respects, the complaint was, in effect, that although the sentencing judge had referred to particular features of the case, it was by no means clear how they were taken into account. The respondent, on the other hand, noted that little weight should be given to infelicities of expression in an ex tempore judgment and contended that where relevant factors had been expressly identified, little more could be required. Thus, the process of achieving a synthesis of conflicting considerations did not allow reasoning by way of precise and logical steps.

65. There is something to be said for both approaches. Nevertheless, the purpose of delivering reasons on sentencing is, as with other exercises of judicial power, to provide transparency as to the process by which the judge reached a particular conclusion. This important function of providing reasons for orders is not diminished by the unfortunate practice of referring, colloquially, to “remarks” on sentence. The identification of relevant considerations is not an exercise in ticking items off on a list; it requires explanation of the direction in which the particular consideration operates and some indication of the weight to be accorded.

66. The point may be illustrated by reference to the circumstances noted by the sentencing judge that the violence occurred in an Aboriginal community without a police station where there were few organised social activities, everyone knows everyone else, and there are “few outlets for the pressures of life other than alcohol and some sport.” These were described as “limiting and confining factors” which needed to be “taken into account when dealing with offending in such communities.” [36]

    36.    Judgment on sentence, 26/05/17, p 16.

67. The judge also stated: [37]

“No doubt alcohol was a significant factor. As well it is difficult for me as a white urban Australian to understand the dynamics of a very small and remote, mainly Aboriginal community.”

37.    Judgment on sentence, 26/05/17, p 5.

68. Given the leniency of the sentences imposed, there must be a concern that in a relatively small remote Aboriginal community alcohol-fuelled violence was to be treated more leniently than would be the case in other communities and that Aboriginal victims of domestic violence were not to be accorded the same protection by way of enforcement of apprehended violence orders and by means of penalties reflecting the need for both specific and general deterrence, as would be true in other communities. Such reasoning would be impermissible. However, simply outlining facts without saying how they were taken into account leaves open the possibility that the undoubted leniency of the sentence was explained by such impermissible assumptions. Whether that occurred, one cannot be sure.

69. Apparently in the context of considering the range of sentences for similar offences, the judge referred to Drew v R. [38] That case involved a serious stabbing by the offender of his domestic partner, resulting in an initial charge of wounding with intent to murder. He entered a plea of guilty to a charge of wounding with intent to cause grievous bodily harm. The maximum penalty for that offence was 25 years imprisonment with a standard non-parole period of 7 years. He was sentenced to imprisonment for 12 years 6 months, with a non-parole period of 9 years 4 months. An appeal to this Court was dismissed. The nature of the offending provided no assistance in determining the present case. However, the trial judge noted that it had raised an issue as to whether the victim was to be regarded as being vulnerable, for the purposes of the aggravating factor identified in s 21A(2)(l) of the Sentencing Procedure Act. (In fact, the basis of vulnerability, as identified in the main specific ground of appeal, involved a number of elements. [39] ) The judge extracted passages from the reasons of Natalie Adams J as to whether the victim could be characterised as a member of a vulnerable class of victims and, the quite separate point, as to whether “a court may take judicial notice of disadvantage suffered by Aboriginal offenders”. [40] Adams J noted that the latter approach had been rejected by the High Court in Bugmy v The Queen. [41] However, the only reliance placed on the reasoning in Drew appears to have been in reaching the conclusion (unchallenged) that the victim was not a member of a vulnerable class. [42] It will be necessary to return to that finding for a different purpose.

    38. [2016] NSWCCA 310; Judgment at p 18.

    39.    Drew at [3] (Fagan J).

    40. Drew at [83].

    41. (2013) 249 CLR 571; [2013] HCA 37.

    42.    Judgment, p 21.

(3)    challenge to findings of objective seriousness

70. In referring to possible comparable authorities, the judge considered first the decision of this Court in R v Dungay. [43] Dungay had potential relevance in that it involved a single punch assault, causing serious harm to the victim when, being knocked unconscious, he fell and hit the road, fracturing his skull. A sentence, following a guilty plea, of 1 year and 9 months had been imposed and an order suspending the sentence had been made under s 12. The Director appealed. The reasons of the Court were given by McCallum J, Macfarlan JA agreeing. Grove AJ joined in the orders of the Court dismissing the appeal, but only because, although the sentence was manifestly inadequate, the Court should not, in the exercise of its discretion, intervene. Grove AJ expressed his reasons in six paragraphs. The sentencing judge extracted the following paragraph:[44]

“The offence of recklessly causing grievous bodily harm can be seen to lie in a chain of types of offence by battery ranging from common assault to forms of homicide. As the prescribed maximum penalties for the various crimes demonstrate, the seriousness attached to each is reflected by the outcome, hence such crimes are sometimes referred to as being in the category of ‘result offences’.”

43. [2012] NSWCCA 197.

44. Dungay at [44].

71. After citing that passage, the sentencing judge continued: [45]

“By that it seems to me his Honour means that the resulting injury dictates the charge that is to be laid against an offender. But that has nothing to do with the moral culpability which depends upon issues such [as] how and why the offence was committed.”

45.    Judgment, p 17.

72. There are two observations to make in relation to this conclusion. First, the escalation of offences from least serious to most serious is not simply a function of the seriousness of the injury; it depends also upon the state of mind of the offender. Secondly, to suggest that moral culpability is unaffected by the category of the offence is to disregard the escalating maximum penalties (and standard non-parole periods) prescribed by the legislature. [46]

    46. R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94 at [27]-[28] (Howie J, Giles JA and Fullerton J agreeing); McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 at [37] (Howie J, McClellan CJ at CL and Simpson J agreeing).

73. The limited significance attached by the sentencing judge to the injuries sustained by the victims was confirmed by the following passage: [47]

“In the present case, the injuries sustained by Ms Stanton and Mr Stanton in regard to s 35(4) and 35(2) were collateral to the assaulting act in that, Ms Stanton was not hit with the bottle and it was Mr Stanton’s awkward fall that led to his injury. Neither attack involve[d] the use of a weapon, let alone a weapon that caused the injury in question. It seems to me that this is a case of criminal negligence, rather than criminal intent, as causing the victim’s injuries in that in each case there was an appreciable risk of actual bodily harm of some sort occurring to each victim because of what Mr Darcy-Shillingsworth was doing….”

47.    Judgment, p 6.

74. There are two problems with this passage. First, to dismiss the consequences of blows to the body or head as “collateral” to the assault was to underplay the objective seriousness of the harm caused by the assault. Thus, four years ago in Pattalis, this Court considered a sentence of imprisonment for 2 years, with a non-parole period of 12 months for a one-punch attack outside a nightclub. In dismissing an appeal against the severity of the sentence, Hoeben CJ at CL stated:[48]

“Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, [has] been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. Regrettably, it is now notorious (as his Honour recognised) that a single punch can not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers will impose meaningful penalties.”

48. Pattalis v R [2013] NSWCCA 171 at [23] (McCallum and Schmidt JJ agreeing).

75. The second difficulty with the passage set out above is that it diminishes the seriousness of the state of mind of the offender so as not to reflect the mental element of the relevant offences. The charges did not involve negligence rather than intent, nor was it sufficient that there was, objectively, an appreciable risk of actual bodily harm. The relevant state of mind in each case is being “reckless as to causing actual bodily harm”. Recklessness, as the term is used in s 35 of the Crimes Act, involves actual foresight of possible consequences. [49] The test is not objective. To suggest that it was understated the state of mind of the offender, which was a necessary element of both offences. That appears to have coloured the judge’s characterisation of the state of mind of recklessness as “quite a low mental threshold.” [50] The judge also found that the offender’s actions “were not intentional and that is reflected in the charges themselves.” [51] That statement, too, was apt to be misleading; there is no doubt that the acts of punching both Ms Stanton and her father were intentional. What the judge meant was that the consequences were not intended, although he should have added that the possibility of such consequences was foreseen by the offender. On more than one occasion, the judge referred to “reckless disregard” of the consequences. [52] However, it is clear that the judge played down the objective seriousness of all three offences.

    49. R v Coleman (1990) 19 NSWLR 467 at 476C-D (Hunt J, Finlay and Allen JJ agreeing), approved in Aubrey v The Queen [2017] HCA 18; 91 ALJR 601 at [46] (Kiefel CJ, Keane, Nettle and Edelman JJ), Bell J agreeing at [53].

    50.    Judgment, p 6.

    51.    Judgment on sentence, 26/05/17, p 5.

    52.    Judgment on sentence, 26/05/17, pp 4, 5.

75. Approximately one-third of the judgment was taken up in setting out the contents of a pre-sentence report, a psychological report and the character evidence of two persons who knew the offender. This evidence, as the sentencing judge recognised, was in part problematic because the offender did not give evidence on sentence. Apart from noting that fact, the judge said, “[t]o the extent that I can place reliance on the expressions of remorse indicated in the [pre-sentence report], the psychological report and some of the references, I accept that he has expressed remorse to those persons.” [53] It may be inferred that the judge himself, understandably in the absence of evidence from the offender, was unable to form a view as to whether he was in fact remorseful. Indeed, it may be that the judge formed an adverse view on this issue having stated: [54]

“What has been established is that he had a criminal reckless disregard for the consequences of his actions on that night. Further, it can be inferred from subsequent text messages from him to her, that whatever had occurred that night was regarded by him as an acceptable method of dealing with the situation.”

53.    Judgment on sentence, 26/05/17, p 21.

54.    Judgment on sentence, 26/05/17, p 5.

77. In recounting the contents of a psychologist’s report, he quoted the following passage, including curious use of the offender’s name when he was the narrator:

“He [the offender] reported that during the past 18 months of their relationship, Mr Darcy-Shillingsworth was consistently accused of being unfaithful, and was the cause of ongoing conflict. During an argument in May 2015, Mr Darcy-Shillingsworth described becoming aggressive and engaged in a sequence of destructive and violent acts which appear to have been motivated by desire to regulate his distress. He recalled hitting a window with a golf club and becoming destructive to other property. Mr Darcy-Shillingsworth was subject to domestic apprehended violence orders after these incidents. Mr Darcy-Shillingsworth denied physically assaulting the victim prior to the index offence, although reported that he had been assaulted by her several times, including allegedly having a bottle smashed over his head, and being threatened with a knife.”

78. It is not clear what was made of such passages from the report. The judge may have accepted that the offender was accused by his de facto partner of being unfaithful, which appears to have been true because he had started a relationship with his present partner shortly before the offences were committed. There was, however, no attempt to assess his insight into that aspect of his relationship with Ms Stanton, other than his being the victim of complaint. Further, despite the history of escalating violence, and the existence of the apprehended violence orders, the judge noted that he “has no previous history of violent behaviour”, but that his relationship with Ms Stanton had become “hostile and volatile.” [55] However, it may be assumed that, by setting out the reports in full detail, largely without comment, the judge was accepting the favourable inferences to be derived from them. In that event, some express consideration was required of the breaches of the apprehended violence orders which, with respect to Ms Stanton, required that he not assault, molest, harass, threaten or otherwise interfere with her, not engage in any other conduct that intimidated her and must not approach her or any place at which she from time to time resided or worked “within 12 hours of consuming intoxicating liquor or illicit drugs.”

    55.    Judgment on sentence, 26/05/17, p 8.

79. In short, although there was much favourable in the offender’s personal circumstances, it provided no basis for discounting the objective seriousness of the offending.

(4)   conclusions as to adequacy of sentences

80. The sentencing judge correctly identified the most serious of the three offences as that involving Mr Stanton. Mr Stanton sought merely to protect his daughter from an ongoing illegal assault. He did not physically confront the offender, but was confronted by him. The offender delivered several blows to his head, which he was unable to avoid. The injury which resulted directly from the attack was undoubtedly a really serious injury with ongoing and probably permanent disabilities as a result. It is possible to imagine a more forceful punch and it is possible to imagine the use of a weapon, such as a knife. The sentencing judge remarked on those features. He did not, however, consider the possibility that an offence with a knife involving wounding with intent to cause really serious bodily harm, might render the offender liable to imprisonment for 25 years under the far more serious offence under s 33(1) or, in the case of any offensive weapon, an offence under s 33B. Absent the erroneous considerations noted above, the sentencing judge should have concluded that the offence was in the mid-range of objective seriousness, thereby warranting close attention to the salience of the standard non-parole period.

81. Further, the judge appears to have dismissed the need for general and specific deterrence as matters of little consequence. He referred to the offender’s current circumstances in the following terms: [56]

“He was in employment and still is. He now lives away from Goodooga and is unlikely to return, so that the domestic relationship leading to the offence, no longer exists. He is in another relationship that at this [time?] at least, is in equilibrium. He is also in fulltime work.”

56.    Judgment, p 21.

82. In the absence of any finding of remorse or significant insight into the behaviour which led to the offending, the issue of specific deterrence should have been a significant consideration.

83. Further, as the Director noted, general deterrence is a matter of some importance in cases of domestic violence. In The Queen v Kilic,[57] the High Court noted that “current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim.” The joint reasons continued:

“So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations.”

57. [2016] HCA 48; 91 ALJR 131 at [21].

84. Taken in context, this statement has been understood in this Court as reflecting the current response of the criminal law in relation to domestic violence as requiring “rigorous and demanding consequences for perpetrators for the purpose of protecting partners, family members and the wider community.”[58] In Cherry, this Court also held that the principles relevant to the punishment of an individual who took the life of his de facto spouse were to be recognised with respect to offences of domestic violence generally. Thus, in Munda v Western Australia,[59] the joint reasons recognised “the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence.” [60] The reasons continued:[61]

“A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

58. Cherry v R [2017] NSWCCA 150 at [78] (Johnson J, Macfarlan JA and Harrison J agreeing).

59. (2013) 249 CLR 600; [2013] HCA 38.

60.    Munda at [54] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).

61. Munda at [55].

85. These principles should have focused attention on the community interest in general deterrence in a case such as the present. These principles were not adequately reflected in the sentences imposed.

Discretion to resentence

86. The importance of these principles also provides a basis for exercising the discretionary power of the court, error having been identified, to intervene and resentence the offender.

87. The countervailing considerations relied upon by the respondent were effectively twofold, namely his substantial progress towards rehabilitation, which is likely to be impeded by incarceration, and the actual stress and anxiety resulting from the appeal.

88. The offender’s submissions relied upon the affidavit of the offender affirmed on 7 September 2017. He gave evidence of the stressful period involved in going to court over the last year, though without specific reference to the relatively short period pending determination of the appeal. He gave evidence as to his activities since being sentenced, including the completion of 30 hours of community service work which should undoubtedly be taken into account in considering a custodial sentence.

89. So far as rehabilitation is concerned, he gave evidence that an officer with Community Corrections at Bourke “is helping me enrol in some programs at the Aboriginal Medical Service”, which he understood “will help me to manage my drinking and help me with better ways to deal with my anger.” There is no evidence that any formal program of rehabilitation has commenced, let alone progressed a significant distance since the sentencing. Whilst this material is properly taken into account in considering the discretion as to whether to intervene, in the circumstances of the present case the factors favouring intervention outweigh other considerations to a significant extent.

Resentencing

90. It is convenient to start with the most serious of the three sentences, namely the offence of causing grievous bodily harm, being reckless as to occasioning actual bodily harm, contrary to s 35(2) of the Crimes Act, involving the assaults on Mr Stanton. The maximum penalty of 10 years imprisonment is a guideline of limited assistance in this case. The harm caused, though very serious, is not of the kind which may result from a serious head injury. The worst aspect of the offence was that Mr Stanton’s presence, not being confrontational, was an entirely reasonable response to the injuries the offender was in the process of inflicting on Mr Stanton’s daughter. To attack Mr Stanton merely because he sought to ring the police was a disgraceful act of violence. Nor was it a single blow; it involved multiple blows to the head whilst Mr Stanton was trying to back away.

91. On the other hand, the offender has no criminal record for violent assault and enjoys the benefit of a number of mitigating circumstances noted above. [62] Subject to the recognition that earlier aggression had led to the imposition of apprehended violence orders, these factors are entitled to be given weight.

    62. At [60].

92. The existence of a standard non-parole period for an offence where the objective factors place the offence in the middle of the range of seriousness[63] indicates that the legislature envisages that a custodial sentence will usually be imposed. The sentencing statistics bear out the correctness of that assumption. The subjective factors attending the circumstances of the offender do not allow a non-custodial sentence. Questions of both specific and general deterrence require the imposition of a custodial sentence bearing an appropriate relationship to the standard non-parole period, which is the more important of the two arithmetical guidelines. If he were to be sentenced separately for this offence, it would warrant a sentence of 2 years imprisonment.

    63. Sentencing Procedure Act, s 54A(2).

93. The second most serious offence, as reflected in the penalty and standard non-parole period, is the wounding of Ms Stanton, the offender being reckless as to causing her actual bodily harm. Although the trial judge saw the offender give evidence at his trial, it does not appear that anything was done or said on that occasion which constituted evidence of remorse in relation to his attack on his de facto partner and the mother of their three children. The evidence noted above tendered at the sentencing hearing does not demonstrate any significant element of remorse. The trial judge did not have the benefit of any evidence from the offender and did not make a finding that he was remorseful. Accordingly, the leniency which can be accorded the offender for this unacceptable violence against his partner is limited. In my view it warranted a custodial sentence of 12 months imprisonment. Because it was an entirely separate act from the attack on Mr Stanton (albeit in the course of aggressive conduct on one evening) there should be a significant degree of accumulation.

94. The third count related to the blow struck by the offender which threw Ms Stanton to the ground, as she was getting out of the car. The gratuitous nature of the continued attack cannot be explained by a momentary loss of control caused by anger. It indicates a continuing vicious streak. However, because the result of the attack was not serious, the offence was assault occasioning actual bodily harm, carrying a maximum penalty of 5 years imprisonment. With respect to that offence, I agree with the sentencing judge that a sentence of 6 months imprisonment was warranted. Again, given the passing of time over the course of the evening, it warranted a degree of accumulation on the other two offences.

95. Questions of accumulation and totality loom large in the present circumstances. I agree with the sentencing judge that the appropriate course is to impose an aggregate sentence. As I do not propose that the sentence be suspended, there is no difficulty in now taking that course. Two other matters warrant consideration. First, although s 24 does not apply in its terms to circumstances where an offender who has been on a good behaviour bond is resentenced on appeal without breach of the bond, nevertheless, it is appropriate to take into account that (i) the respondent has been the subject of a bond or bonds since 26 May 2017, (ii) he has complied with a community service order and undertaken 30 hours of community service obligations and (iii) he has not in fact breached the bond. Given that those circumstances have pertained over a period a little short of five months, they are best taken into account by giving the offender credit for the whole of that period, by back-dating the sentence to 26 May 2017.

96. There remains a question as to whether, in fixing the relevant non-parole period and the balance of term, the Court should find special circumstances pursuant to s 44 of the Sentencing Procedure Act. That course is appropriate for a number of reasons. First, the offender will be facing his first custodial sentence. Secondly, while there are good prospects of rehabilitation, he will undoubtedly benefit from the discipline of a longer period of conditional liberty than would operate if the balance of term were not to exceed one-third of the non-parole period. Thirdly, his rehabilitation is likely to be promoted, rather than impeded, by early release into the community in circumstances where he has a good employment record and is likely to be able to maintain that record, with significant advantages to both himself and the community.

97. These factors may be accommodated by a sentence of 2 years 6 months imprisonment, comprising a non-parole period of 15 months and a balance of term of 15 months. The sentence should be deemed to have commenced on 26 May 2017, so that, on the assumption that he is taken into custody forthwith on the imposition of the sentence, the Court should direct that he be released to parole on 25 August 2018.

98. Accordingly, the Court makes the following orders:

1. Allow the appeal by the Director pursuant to the Criminal Appeal Act 1912 (NSW), s 5D.

2. Set aside the sentences imposed in the District Court on 26 May 2017 and 28 July 2017.

3. Resentence the respondent as follows:

1. in relation to counts 1, 3 and 4, impose an aggregate sentence comprising a non-parole period of 15 months deemed to have commenced on 26 May 2017, with a balance of term of 15 months, giving a sentence of 2 years 6 months;

2. direct that the respondent be released on parole on 25 August 2018.

99. BEECH-JONES J: Subject to four matters I agree with Basten JA and the orders his Honours proposes.

100. First, I do not consider it necessary to determine whether the effect of s 12(3) of the Crimes (Sentencing Procedure) Act 1999 (the ‘Sentencing Act”) is to preclude the suspension of an aggregate sentence provided for in s 53A thereof. As the judgment of Basten JA demonstrates, there are a number of difficulties that follow from any construction of s 12(3) that has that effect. However, it is not necessary to decide this issue because, even if on 28 July 2017 the sentencing judge did not have the power under s 43(1) of the Sentencing Act to reopen the suspended sentence imposed on 26 May 2017, the orders made on 28 July 2017 are sufficient to ground an appeal to this Court by the Director of Public Prosecutions under s 5D of the Criminal Appeal Act 1912 (NSW). In any event, the Director appeals both sentences. Further, as I consider that appeal should be upheld and the Respondent resentenced it is not necessary to determine which of the two sets of orders made by the sentencing judge is the operative one.

101. Second, I agree with Basten JA at [65] that the identification of relevant considerations by a sentencing judge “is not an exercise in ticking off items off on a list”. I also agree that generally the transparency of sentencing judgments would be enhanced if sentencing judges explained “the direction in which the particular consideration operates and [gave] some indication of the weight to be accorded” to that consideration. However, I do not accept that this Court can impose that as a requirement. The task of this Court is to ascertain error. It is not to specify prescriptive guidelines for sentencing judges about how to write judgments.

102. Third, I do not accept that the sentencing judgement in this case is open to the construction that victims of violence in Aboriginal communities are not to be accorded the same protection by way of enforcement of apprehended violence orders and the imposition of penalties that reflect the need for general and specific deterrence as other communities. Instead I understand the passage from the sentencing judgement set out in the judgment of Basten JA at [67] as simply referring to the difficulties that the sentencing judge experienced in determining how it was the Respondent came to commit the offences that he did.

103. Fourth, before this Court determines that it will resentence a Respondent to a Crown appeal against sentence, the prosecution must first “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised” (R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at [12] per Heydon JA cited in CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9; at [34] per French CJ and Gageler J and [56] per Kiefel, Bell and Keane JJ). For the reasons given by Basten JA, especially at [86] to [89], I am satisfied that it has done so.

104. FAGAN J: It is under the orders made by the learned sentencing judge on 28 July 2017 that the respondent's liberty is presently conditional and that he is required to perform community service. I agree with Basten JA that the sentences imposed by those orders are manifestly inadequate. It is sufficient for resolution of the appeal that the orders of 28 July 2017 be set aside on that ground, without determining whether the sentences earlier passed on 26 May 2017 were lawful (so that there was no power to replace them). When this Court's sentencing orders are pronounced in lieu of those made by the learned sentencing judge on 28 July 2017, there will cease to be any need to determine the question whether the aggregate suspended sentence of 26 May 2017 was valid. I therefore prefer not to express a view on the issue of statutory interpretation which is involved.

99. I agree with the reasons of Basten JA for holding that the sentences imposed for the three offences of which the respondent was convicted are manifestly inadequate and that he should be resentenced to an aggregate term of 2 years and 6 months with a non-parole period of 15 months. The Crown has satisfied its burden of showing that this Court should not exercise its residual discretion to refrain from interfering.

100. Of the various purposes of sentencing recited in the Crimes (Sentencing Procedure) Act, those of particular importance in this case are (1) "deterring the offender and other persons from committing similar offences", (2) denouncing the conduct of the offender and (3) recognising "the harm done to the victim[s] of the crime and the community".

101. The violence to the respondent's female partner was perpetrated in a remote community at least a hundred kilometres from the nearest permanent police presence. It was a serious aspect of count 3 that this assault, constituted by punching Ms Stanton in the face, pulling her from the car and knocking her to the ground with another blow, took place in the presence of her father. He had attended to try to stop the attack. Although police could not be summoned quickly enough to provide the immediate physical protection which his daughter's situation evidently required, Mr Stanton did not escalate the violence or take the law into his own hands. He warned that he was calling the police. This ought to have caused the respondent to come to his senses and draw back from his cowardly attack. Instead, as charged in count 4, he commenced to beat Mr Stanton himself. Grievous bodily harm resulted. As the jury found, the respondent foresaw this as a possible outcome of his actions.

102. For the statutory purposes of sentencing to be served and for the criminal law to play its part in the endeavour to quell and redress violence of this nature, offences of such gravity, even when committed by a man with much to be said for his otherwise good character, cannot be dealt with as leniently as was done in this case.

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Endnotes

Amendments

23 October 2017 - [108] - Deleting "to" after "cannot".

Decision last updated: 23 October 2017