DU v R

[2022] NSWCCA 149

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

DU v R [2022] NSWCCA 149

Hearing dates:

27 June 2022

Date of orders:

17 August 2022

Decision date:

17 August 2022

Before:

Beech-Jones CJ at CL at [1]
Garling J at [2]
Wilson J at [72]

Decision:

See [71]

Catchwords:

SENTENCING — appeal against sentence — subjective considerations on sentence — special circumstances — failure to give effect to finding of special circumstances — error requiring resentencing

SENTENCING — appeal against sentence —informers — sentence reduced because of assistance provided to law enforcement authorities

SENTENCING — appeal against sentence — co‑offenders — disparity between sentences

Legislation Cited:

Crimes Act 1900 ss 33B, 35, 59, 86

Crimes (Sentencing Procedure) Act 1999 ss 9, 23

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Christian v R [2021] NSWCCA 300

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Greentree v R [2018] NSWCCA 227

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

LS v R [2020] NSWCCA 27

R v Cartwright (1989) 17 NSWLR 243

R v XX [2017] NSWCCA 90; 266 A Crim R 132

TL v R [2017] NSWCCA 308

West v R [2017] NSWCCA 306

Texts Cited:

Not Applicable

Category:

Sentence

Parties:

DU (Appellant)
The Queen

Representation:

Counsel:
D Barrow (Appellant)
C Curtis (Crown)

Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2014/272972

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 and on the grounds appearing in subss 8(1)(a), (c) and (e) of the Act, the Court orders that until 16 September 2030:
1. There be no publication of the name of the appellant in these proceedings;
2. Any court listings of the matter the appellant be referred to as “DU”;
3. Orders 1 and 2 operate throughout the Commonwealth.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

19 October 2016

Before:

Delaney ADCJ

File Number(s):

2014/272972

Judgment

1. BEECH-JONES CJ at CL: I have had the advantage of reading the judgment of Garling J. Although the assessment of the objective seriousness of each of the applicant’s individual crimes hovers around or just below the mid-range, overall, his criminality was high. He cruelly inflicted suffering on a defenceless child over a sustained period. Nevertheless, bearing in mind parity and the assistance given by the applicant, I agree with the orders and sentence proposed by his Honour and his Honour’s reasons.

2. GARLING J: The applicant, to whom the Court has given the pseudonym “DU”, seeks leave to appeal against the sentence imposed upon him by Delaney ADCJ on 19 October 2016.

3. The applicant was sentenced to an aggregate term of imprisonment of 16 years with a non-parole period of 12 years for six offences against a 4-year-old boy involving varying degrees of violence.

4. The details of the charges and the indicative sentences announced by Delaney ADCJ are as follows:

Charge	Maximum Sentence/SNPP	Indicative Sentence
Count 1: Aggravated (in company) detain for advantage s 86(2)(a) Crimes Act 1900	20 years	4 years
Count 2: Use offensive weapon with intent to commit indictable offence of assault s 33B(1)(a) Crimes Act 1900	12 years	5 years
Count 3: Assault occasioning actual bodily harm s 59(1) Crimes Act 1900	5 years	2 years
Count 4: Assault occasioning actual bodily harm in company s 59(2) Crimes Act 1900	7 years	3 years, 6 months
Count 5: Assault occasioning actual bodily harm in company s 59(2) Crimes Act 1900	7 years	4 years
Count 6: Recklessly inflict grievous bodily harm in company s 35(1) Crimes Act 1900	14 years SNPP: 5 years	6 years, 3 months NPP 3 years, 6 months

5. Each of the indicative sentences were arrived at after the application by the Judge of a 12% discount for the applicant’s pleas of guilty. Those pleas were entered shortly prior to his trial commencing.

6. In sentencing the applicant, the Judge was asked to proceed on an agreed set of facts to which reference will shortly be made.

7. The aggregate sentence imposed by the Judge was fixed to commence on 16 September 2014, which was the date upon which the applicant had been arrested. He had remained in custody since his arrest.

8. On 21 December 2021, the applicant lodged an Application for Leave to File a Notice of Appeal After Expiry of the Filing Period. The applicant included with his Application an affidavit by his solicitor which explained the reasons for the late filing of the Notice of Appeal.

9. The extension of time required is for a lengthy period. In part, that period is explained by accounting for the completion of a trial of a co-offender, and the imposition of sentence. There is an inadequate explanation for the balance of the period. Ordinarily, an extension of time would not be granted. However, as will become apparent, the Crown concedes that the Judge fell into error by failing to give effect to his undoubtedly correct finding of special circumstances. In light of that concession, I am disposed to make an order extending time for the filing of the application for leave to appeal up to 20 December 2021. For the same reason, it is appropriate to grant leave to appeal. I will now refer to the applicant as the appellant.

10. The appellant relied on two Grounds of Appeal. They were that:

1. His Honour erred in failing to give effect to the finding of special circumstances; and

2. The aggregate sentence is manifestly excessive.

Error – Failure to Give Effect to Finding of Special Circumstances

11. It will be observed from the aggregate sentence which was imposed that the non‑parole period was 75% of the total term of imprisonment of 16 years. That ratio accorded with the statutory ratio. However, in the course of his remarks on sentence, the Judge had made a finding of special circumstances “… relating to how the offender will ever be able to be reintegrated into society after his period of incarceration”.

12. The appellant submitted that this finding of special circumstances was not reflected in the aggregate term which was imposed.

13. In reliance on the decisions of this Court in Christian v R [2021] NSWCCA 300 at [28] and West v R [2017] NSWCCA 306 at [62]-[71], the appellant submitted that the failure to vary the statutory ratio in the aggregate sentence which was imposed constituted an error.

14. In its written submissions the Crown conceded that Ground 1 was established and that, as a consequence, leave to extend the time within which to file a Notice of Appeal ought be granted.

15. In oral submissions the Crown made it clear that it would be appropriate for this Court to move to resentence the appellant.

16. I agree that this is the correct approach. In those circumstances, it is inappropriate for the Court to consider and rule on the second Ground of Appeal of manifest excess, but it will be appropriate for the Court to take into account the submissions made with respect to that Ground in considering what sentence ought be imposed on the appellant.

Objective Seriousness

17. It is now time to consider the facts which were agreed by reference to each of the six offences and make findings as to the objective seriousness of those offences. This can be done in a somewhat abbreviated way because the appellant accepted that the findings as to objective seriousness of the Judge were appropriate.

18. The six offences all occurred over a two-week period at a time when the victim was 4 years old. The victim and his mother were living in the home of a woman, to whom I will give the pseudonym “NR”, and with whom the appellant was also friendly. NR lived in the house with her three children. The appellant moved into the house around the same time as the victim and his mother, a short time before the offending commenced. NR and the child victim did not get along, and NR became more and more intolerant of the child victim’s behaviour. Each of the counts to which DU pleaded guilty arose out of NR’s erroneous perception of misbehaviour on the part of the child victim.

Count 1 – Aggravated Detain for Advantage

19. NR perceived that the child victim had called her an unflattering name. An argument followed. NR and the appellant took the child victim to the bathroom and made him sit on a chair. His hands were tied behind his back with a strap and the cold water of the shower was turned on repeatedly with the child victim being berated by NR and the appellant, demanding that he tell the truth. This incident lasted for about an hour. The child victim was observed when he was released to have red marks on his wrists.

20. The Judge found, and I agree, that this offence was “slightly below mid-range”.

Count 2 – Use Offensive Weapon with Intent to Assault

21. A few days later, all of the occupants of the house were sitting at the dining room table. NR became angry with the child victim because she believed that he had given her a “dirty look”. The appellant left the table and picked up a baseball bat. He returned to the table and threatened to hit the child victim with it. Despite the child victim’s mother’s objection, the appellant asserted he could do what he wanted to the child victim because this was his and NR’s house. At some point in the course of this argument, the appellant struck the child victim with the bat to his arm, causing him to cry.

22. His Honour found, and I agree, that this offence fell below the mid-range of objective seriousness.

Count 3 – Assault Occasioning Actual Bodily Harm

23. For a reason which was not apparent from the facts, the appellant took the child down the side of the house in which they were all living. The child called out to his mother for help, but NR told her not to interfere as the appellant was going to teach her son a lesson. The appellant struck the child a number of times to the legs and bottom with the baseball bat, causing the child to cry and scream.

24. Later that day, when the child victim was taken to the toilet, his mother noticed that he had red marks to his legs and bottom.

25. His Honour found, and I agree, that this offence fell below the mid-range of objective seriousness.

Count 4 – Assault Occasioning Actual Bodily Harm in Company

26. On this occasion, the child victim refused to eat the dinner which had been provided to him. He was again accused of giving NR “dirty looks”. The child victim was taken by the appellant and NR and placed on top of a freezer. He asked to come down but was made to stand up there. At some point, NR knocked the freezer and the child victim fell to the ground sustaining a cut to his head. As a consequence of this fall, the child victim sustained a laceration to the back left-hand side of his head caused by blunt force trauma which became infected.

27. His Honour found, and the parties accepted, that this offence fell slightly below the mid‑range of objective seriousness. I see no reason to depart from that finding.

Count 5 – Assault Occasioning Actual Bodily Harm in Company

28. NR made the victim stand against a side-fence for over an hour whilst repeatedly asking the victim why he had given her a strange look. The victim kept responding “I don’t know”.

29. NR then told the appellant to have the victim hold a sandstone brick, about 20‑30cm long and about 10cm wide and 10cm thick, above his head. The victim was crying. If he dropped or lowered the brick, he was told either by the appellant or NR to hold it back over his head. This went on for some considerable period. The victim continued to cry and complained that his arms hurt.

30. After some time, the victim swore at NR. The appellant got up and swept the victim’s legs out from under him. The victim fell and hit the right side of his head on the cement path. The victim began to cry and scream.

31. After the appellant checked to see that the victim’s head was not bleeding, he was made to return to where he had been standing and again hold the brick above his head.

32. At a later point in time, the appellant obtained a “Super Soaker” filled with water and soaked the victim with water. It was very cold, and the victim was crying. He was only allowed to go back inside for a warm shower at around midnight.

33. His Honour determined, correctly in my view, that this offence fell above the mid-range of objective seriousness.

Count 6 – Recklessly Inflict Grievous Bodily Harm Whilst in Company

34. The night following the events constituting Count 5, there was again a dispute between NR and the victim. NR assaulted the victim by telling him to open his mouth and stick out his tongue. He did so. She then slapped the bottom of the victim’s chin – forcing him to bite his tongue. She then punched him twice to the chin. At that stage, the appellant became involved. He grabbed the victim from behind with both hands on his biceps and lifted him off the ground. On three occasions, the appellant shook the victim backwards and forwards aggressively for about 10 seconds on each occasion – asking him whether he was going to change his behaviour towards NR. In the course of this, a visitor to the property attempted to intervene. The appellant only desisted from shaking the victim because that visitor demanded that the appellant put the victim down, which he did. Shortly after this occurred, the victim collapsed on the ground and started shaking.

35. The appellant and NR told the visitor not to call an ambulance, and they took the victim inside and put him in the shower. The appellant and NR told the victim’s mother that he was to sleep outside that night and the appellant put a pillow and blanket outside so that the victim could sleep there. He was later brought inside.

36. On 26 May 2014, a case worker from FACS who attended the property noticed that the victim had bruising and swelling to both eyes and his forehead. He took the child to hospital for an examination.

37. The Judge held that the offence fell in the mid-range of objective seriousness. This was an appropriate conclusion which I accept.

Injuries

38. The doctors at Mount Druitt and Westmead Hospital identified, including by CT scan, injuries to the child victim which included significant and widespread bruising all over his body, including around his face, head and eyes, to his spine, buttocks, thighs and shins. He was missing a tooth. He suffered from an infected laceration on the back left side of his head and an abrasion to his right lower thoracic area. An x-ray revealed that his left radius and ulna, foot and sixth and seventh ribs were all fractured. There was a high-energy impact trauma to the right side of his head.

39. He suffered an extensive and relatively thin right-sided subdural haematoma. He suffered another subdural haematoma around the posterior aspect of the lumbosacral spinal canal. He also suffered likely subdural haematomas around the left frontal and occipital poles and overlying the sellar and clivus. Finally, the doctors noted compression fractures of his thoracic vertebrae from T4-T5, which together with the subdural haematomas were consistent with shaking injuries.

Appellant’s Subjective Case

40. No evidence was called or tendered on the appellant’s behalf. However, a pre‑sentence report which had been ordered by the Court was tendered by the Crown.

41. That pre-sentence report, which was prepared by Jodie McMahon, disclosed that the appellant was 26 years old at the time when the offences were committed. He had a relatively minor criminal record of convictions in the Local Court and had not previously served a term of imprisonment. At the time of these offences, he was the subject of a good behaviour bond for 18 months imposed pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 for a conviction of common assault.

42. The report noted that the appellant was the father of six children aged between 3 years and 9 years – all of whom were in the care of Family and Community Services (“FACS”) as a consequence of their parents’ drug use. The appellant told Ms McMahon that he had no family, friends, or social support in the community. He described leaving school in Year 7, and later obtaining his School Certificate at the end of Year 10 through the assistance of Youth Off The Streets. He had only had one short term job collecting supermarket trolleys and had been receiving a Disability Support Pension for the last five years as a result of autism and a drug‑induced psychosis.

43. The appellant had used alcohol from 9 years of age and cannabis from 10 years of age until the time of his arrest, together with a period of heroin and methylamphetamine use.

44. The appellant’s description of his childhood is recorded in the following terms:

“One of two children from his parents’ union, [DU] described a difficult upbringing. He reported that he was placed in the care of Family and Community Services (FACS) from the age of five years. He stated that he has no memory of his mother and his father is dead. [DU] claimed that he has limited memory of his time in care. He stated that he was informed that the memory loss is related to Post-Traumatic Stress Disorder due to ongoing abuse by his carers. He recalled that his grandfather removed him from care at the age of 13 years and he went to reside with his grandparents. He stated that his elderly grandparents became unable to care for him so he moved in with his father. He claimed that his father’s alcoholism forced him to become homeless soon after and became involved with Youth Off the Streets for three years.”

45. The appellant described being treated in custody with anti-psychotic medication and told Ms McMahon that he had been diagnosed with various psychiatric conditions over his lifetime and had attempted suicide. Ms McMahon considered that the appellant was at high risk of reoffending having regard to his social circumstances, his alcohol and drug intake, his emotional and personal difficulties and his aggression and violence. She thought that the appellant would benefit from a thorough mental health assessment and ongoing professional intervention.

46. Although the appellant did not give evidence in support of this factual account, the Crown did not suggest to the Judge, or to this Court, that the account ought not to be relied upon as a largely accurate depiction of the appellant’s early life.

47. I am satisfied that the appellant’s childhood and teenage years were ones of deprivation, abuse and dysfunction combined with a lack of stable family environment, periods of homelessness, drug and alcohol addiction, and the absence of any developed social friendships or community connections. This background is a relevant factor in sentencing: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44] and [56].

Additional Evidence

48. A number of matters have occurred since the appellant was originally sentenced.

49. First, in February 2020, NR stood her trial before Sweeney DCJ without a jury. Her Honour delivered her judgment and verdicts on 9 March 2020 i.e., about 3½ years after the appellant pleaded guilty and was sentenced by the Judge. NR was convicted of the same offence as the appellant in respect of Count 1, and the same offence as the appellant with respect to Count 4. She was convicted of a further and entirely different count of causing poison to be taken by the child victim with intent to injure or cause distress or pain.

50. NR was found not guilty of two counts which reflect Counts 5 and 6 to which the appellant pleaded guilty.

51. For the equivalent of Count 1, the indicative sentence for NR was 4 years imprisonment, and for the equivalent of Count 4 to which the appellant pleaded guilty, the indicative sentence was 18 months imprisonment.

52. It is appropriate to set out an extract of the Remarks of Sweeney DCJ in sentencing NR for the two offences which were equivalent to Counts 1 and 4 for the appellant. She said:

“For the offence of detaining [the victim], equivalent to [NR]’s Count 1, [DU] was given an indicative sentence of four years imprisonment. He received a 12% discount for his guilty plea. I have found that [NR] instigated that offence and [DU] assisted her.

For the offence of assault occasioning actual bodily harm corresponding to [NR]’s Count 3, which is placing [the victim] on the freezer from which he fell, [DU] received an indicative sentence of three years six months imprisonment, again with a 12% discount for his plea of guilty. Again, I have found that [NR] was the instigator of placing [the victim] on the freezer as punishment, assisted by [DU], and it was her act which caused [the victim] to fall.”

53. Her Honour noted that NR was two years older than DU. She also noted from the sentencing judgment that DU had had a life of deprivation and dysfunction. Her Honour went on to say this:

“… However the material before me shows that [NR] has support from her family, friends and her current partner, so her subjective circumstances are less difficult than [DU]’s.

I consider that the sentence indicated for [DU] for the detaining offence taking into account that he received a 12% discount for his plea of guilty, he had a prior record for offences of violence although not significant, that his subjective circumstances involve more deprivation and dysfunction than [NR]’s, and that she instigated the offence, is a not inappropriate guide to the sentence for [NR] for that offence.

I consider the sentence indicated for [DU] for the assault occasioning actual bodily harm in company offence to be higher than I consider appropriate for that offence by NR.”

54. In resentencing the appellant, it will be necessary to bear in mind the indicative sentences for NR because of the principle of parity.

55. That principle is an aspect of equal justice and requires that there be consistency in punishment because unequal treatment is likely to lead to an erosion of public confidence in the integrity of the administration of justice: Lowe v The Queen (1984) 154 CLR 606 at pp 610-611; [1984] HCA 46; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [28]-[30]; [2011] HCA 49.

56. Secondly, the appellant has placed material before the Court of a kind which he submits entitles him to an additional discount on each of the sentences pursuant to the provisions of s 23 of the Crimes (Sentencing and Procedure) Act 1999.

57. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43], French CJ, Hayne, Bell and Keane JJ said that when a court moved to resentence an offender, error having been shown, that this court may take “… into account all relevant matters, including evidence of events that have occurred since the sentence hearing …”.

58. This Court has held that evidence may be admissible on resentence which is not limited to evidence relating to the rehabilitation of an offender: Greentree v R [2018] NSWCCA 227 at [68] per Beech-Jones J, Hoeben CJ at CL and McCallum J agreeing. On a number of occasions this Court has taken into account material relevant to s 23, which has arisen since the original sentence was imposed, into account for the purpose of resentencing: see TL v R [2017] NSWCCA 308 at [101]; LS v R [2020] NSWCCA 27 at [85].

59. The history and construction of s 23 and the manner of its application was the subject of consideration by Beech-Jones J (with whom Bathurst CJ and RA Hulme J agreed) in R v XX [2017] NSWCCA 90; 266 A Crim R 132 at [24]‑[55]. The general rationale for discounting a sentence to account for the provision of assistance is that it is “… in the public interest that offenders should be encouraged to supply information to the authorities which will assist them to bring other offenders to justice, and to give evidence against those other offenders…”: R v Cartwright (1989) 17 NSWLR 243 at 252.

60. In proceeding to assess any discount which ought to be given, the Court is required to consider each of the matters set out in s 23(2)(b)-s 23(2)(i). Consideration of the value of the assistance is in this case made easier by the fact that NR’s trial, at which DU gave evidence, was heard before Sweeney DCJ, whose description of the value of the appellant’s evidence is to be found in her reasons for entering verdicts.

61. In her Honour’s judgment following the trial of NR, Sweeney DCJ noted that the Crown case depended heavily on DU’s evidence. However, her Honour did not accept all of the evidence DU gave. She recorded that she found his accounts partly “involved his stepping back and minimising his behaviour” and “contained some embellishments or exaggeration”. In the circumstances, Sweeney DCJ accepted DU’s evidence to the extent it was consistent with evidence given by the child victim’s mother.

62. The appellant’s assistance included, as is obvious, the giving of evidence in open court and being subjected to cross-examination. Such assistance was in this case more than the appellant had merely given information to police in the course of an interview. Any benefit which the appellant obtains is confined to such discount as the Court allows. The appellant’s offer to assist occurred after he was sentenced for these offences and whilst NR’s trial was in its interlocutory stages.

63. It is unnecessary, and inappropriate, to set out in this judgment at any length the content of the assistance provided. It is sufficient to say that I am satisfied, having regard to all of that material, including the views expressed by Sweeney DCJ, that the appellant is entitled to a discount. I would allow, in addition to the 12% discount for the plea of guilty, an additional discount for the assistance rendered of 8%.

64. This has the effect that the appellant will receive a combined discount of 20% on any sentence which might otherwise be imposed.

Resentence

65. I keep in mind the indicative sentences imposed on NR. The appellant’s history of upbringing included far greater instances of deprivation and disadvantage than those of NR. The appellant’s subjective circumstances were significantly more mitigating than those of NR.

66. Including adjusting for the proposed combined discount of 20%, I would indicate the following sentences for the appellant:

1. Count 1:    3 years 3 months;

2. Count 2:    3 years

3. Count 3:    18 months

4. Count 4:    18 months

5. Count 5:    3 years

6. Count 6:    5 years 9 months with a non-parole period of             3 years 3 months.

67. It will be observed by reference to the indicative sentence imposed by Delaney ADCJ for Count 4 that the indicative sentence I propose is a significantly shorter one. I have fixed this indicative sentence having regard to the need to give effect to the principle of parity so as to reflect the indicative sentence imposed on NR by Sweeney DCJ. Prior to the application of the discount identified, this indicative sentence is longer than that indicated for NR. This reflects my assessment of the role of the appellant in that offence.

68. It is appropriate to proceed by way of aggregate sentence.

69. It is also necessary to keep in mind at this point the Judge’s finding of special circumstances, with which I agree. The appellant will need a longer period than provided for in the statute to assist with re‑entering the community. An alteration to the statutory ratio so that the non-parole period is two-thirds of the total sentence is an appropriate one to reflect the special circumstances established in this case.

70. In my view, an appropriate aggregate sentence is a term of imprisonment of 13 years and 6 months with a non-parole period of 9 years, commencing on 16 September 2014.

Orders

71. I propose the following orders:

1. Extend the time for the filing of an application for leave to appeal to 21 December 2021.

2. Grant leave to appeal.

3. Appeal upheld.

4. Quash the sentence imposed by Delaney ADCJ on 19 October 2016.

5. In lieu thereof, impose an aggregate term of imprisonment with a non‑parole period of 9 years commencing on 16 September 2014, with a balance of term of 4 years and 6 months.

6. The first date upon which the appellant will be eligible for release will be 15 September 2023.

7. The Court will defer publishing this judgment beyond providing a copy to the parties for a period of 14 days, during which any party may lodge an application with the Registrar for the suppression or redaction of any part of this judgment.

8. Any such application will be determined by the Court on the papers.

72. WILSON J: I agree with Garling J that error has been established and it is necessary for this Court to resentence, for the reasons given by his Honour.

73. The offences committed by the appellant against his 4 year old victim were barbaric and brutal. They were offences committed against an unprotected and very vulnerable child over a protracted period, and it is likely that they have left far more than physical scars upon him. Denunciation and the recognition of harm done must play a significant role in re-sentencing the appellant for his cruel and callous abuse of such a young child.

74. Having regard to the requirement to observe the principle of parity, and – as slight as is the evidence of it - the dysfunctional and disadvantaged circumstances of the appellant’s upbringing, the aggregate sentence proposed by Garling J is within the available range of sentence. On that basis, I agree with the orders his Honour has proposed.

75. I also agree with the additional observations of the Chief Judge at Common Law.

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Decision last updated: 29 August 2022