Evans v The Queen

[2012] NSWCCA 59

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Evans v R [2012] NSWCCA 59
Hearing dates:	9 February 2012
Decision date:	09 February 2012
Before:	McClellan CJ at CL at [1] Johnson J at [29] Rothman J at [31]
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW - appeal - sentence - whether the trial judge failed to account for the fact that an offence could have been dealt with in the Local Court - determination of objective seriousness in circumstances where there is no standard non-parole period for an offence - whether the trial judge considered an irrelevant factor in determining objective seriousness - whether the total sentence reflected the criminality of the offences committed - leave to appeal against sentence refused.
Legislation Cited:	Crimes Act 1900
Cases Cited:	Bonwick v R [2010] NSWCCA 177 Dagdanasar v R [2010] NSWCCA 310 Lewis v R [2011] NSWCCA 206 Palmer v R [2005] NSWCCA 349 Pearce v R (1998) 194 CLR 610 R v EI Masri [2005] NSWCCA 167 R v Koloamatangi [2011] NSWCCA 288
Category:	Principal judgment
Parties:	Todd Evans (Applicant) The Crown
Representation:	Counsel: K H Averre (Applicant) M M Cinque (Crown) Solicitors: Legal Aid of NSW (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2010/147454
Decision under appeal	Date of Decision: 2010-12-15 00:00:00 Before: McLoughlin DCJ File Number(s): 2010/147454

Judgment

1. McCLELLAN CJ at CL: The applicant pleaded guilty to two offences being:

Count 1:between 10 June 2010 and 13 June 2010 at Kempsey in the State of NSW did assault Riley Erin Wheeldon and at the time of such assault did commit an act of indecency on her contrary to s 61L of the Crimes Act 1900.

Count 2:on 12 June 2010 at Kemspey in the State of NSW was armed with a weapon, namely a knife with intent to commit an indictable offence namely intimidation contrary to s 114(1)(a) of the Crimes Act 1900.

1. The maximum penalty for the offence the subject of count 1 was 5 years imprisonment and for count 2 was 7 years imprisonment. The applicant was sentenced as follows:

Count 1:imprisonment for 8 months to commence on 24 July 2010 and expire on 23 March 2011 with a non-parole period of 6 months to expire on 30 January 2011.

Count 2:imprisonment for 2 years 8 months commencing on 23 November 2010 and expire on 22 July 2013 with a non-parole period of 22 months to expire on 22 September 2012.

1. The dates for these sentences were adjusted after the original sentence hearing. At the time that the applicant committed the offences he was on parole which was then revoked. The sentencing judge did not have accurate information as to the expiry date of the previous sentence to which the parole period was relevant when first imposing the present sentences, necessitating a later adjustment.

1. The trial judge provided the following account of the relevant facts:

"The circumstances giving rise to the commission of these offences are that the complainant Radi Wheeldon is some eighteen years of age. On the afternoon and evening on 11 June 2010 the complainant was socialising and drinking at home at 15 Kidman Avenue, West Kempsey. Also at the house was Sally Steele and her partner Noah Jones, Timothy Dyksmar and his fiance Katie and Timothy Carroll, the offender and his girlfriend Bethany Robertson.

At about 11.30pm the complainant went for a drive to pick up her ex-boyfriend Lee Lamoine. She went in the car with Timothy Carroll and Sally Steele who were in the front seats. The complainant and the offender were in the back seats, the complainant was wearing jeans, a black jacket with a hood, black T-shirt and black underpants. On the way to Mr Lamoine's place the accused kept trying to grab the complainant inappropriately, she kept pushing his hand back. At the time this was happening Ms Steele and Mr Carroll were not aware of what the accused was doing.

When they arrived at Mr Lamoine's house both the complainant and the offender knocked on the door. They were told that Mr Lamoine was asleep so they all left to go back home.

The seating arrangements on the return journey were the same, that is the offender and the complainant were sitting in the back seat. On the way back the offender kept trying to grab the complainant, again she kept pushing his hand back. The offender was sitting on the complainant's right side and grabbed her right leg just above the knee with one of his hands. The offender moved his hand all the way to her vagina area, touched her on the vagina on the outside of her clothing, he also tried to put his hands down the front of her jeans.

The complainant kept pushing the offender's hand away about five times and told him to "stop it" and "no" each time she pushed his hand away. The offender kept saying "Baby it's okay," every time that the complainant pushed his hand away. At the time that this was happening Ms Steele and Mr Carroll were not aware what the offender was doing as loud music was playing. At this time the offender was kissing the complainant on the neck saying "It's okay," saying this more than once.

When they got close to home the complainant said "Fuck this," and jumped out of the car and started walking down the road as she just wanted to get away. Ms Steele asked the complainant what was wrong, the complainant said "Nothing, I'm fine, just leave me alone." The complainant was taken back inside the house. When asked what was wrong the complainant kept saying "Nothing." She was crying at this stage.

Mr Timothy Dyksmar asked the complainant what happened and the complainant told him the offender had touched her "you know where".

Ms Steele then called for an ambulance. The police and ambulance arrived, the complainant told police he touched me. The complainant was taken to the hospital but she just wanted to go home and sleep so she left and walked home.

Ms Robertson called the offender and told him what the complainant had said. The offender denied anything happened. At some time around 2.30am the offender returned back to the house, he had been given a lift to the next street earlier by Mr Carroll when the ambulance and police arrived.

The offender at this time was really worked up saying "I'm going to stab this bitch." Mr Dyksmar went over to the offender and said "Give me the knife," a few times. The offender refused to hand over the knife. The offender walked away and stood on the front lawn. When the complainant arrived home she saw that the offender was there with Ms Steele, Ms Robertson and Mr Dyksmar. When the complainant saw the offender she was so angry she wanted to punch him and as she was about to do this the offender grabbed her shirt around her stomach with his left hand, at the same time the complainant saw his right hand with something shiny in it holding it back and out to the side.

The offender said to the complainant "I'm going to stab you, you cunt." Mr Dyksmar ran in, grabbed the complainant, pulled her away, grabbed the offender's right wrist with his left hand, pushed the offender's arm outwards away from his body. Mr Dyksmar also grabbed the offender by the back of the neck with his right hand. The offender struggled with Mr Dyksmar however he did not let go of the knife, Mr Carroll called triple-0.

The offender pushed the point of the knife against Mr Dyksmar's stomach and said, "Let me go or I'll stab you and cut your guts out cunt." Mr Dyksmar pushed the offender's hand and knife away from him, pushed the offender against the fence, the offender released the knife.

The offender settled down and Mr Dyksmar released him. The police arrived, a black plastic handled Wiltshire brand steak knife with a blade about twenty centimetres long was handed to police. The offender was spoken to at the scene, cautioned and arrested and taken to Kempsey Police Station.

At the police station the offender told police, "I know I shouldn't have done it. I was going to hurt no-one with it." He declined to be interviewed and was charged."

1. There was no pre-sentence report before the sentencing judge. However, the applicant's criminal history was provided. It is lengthy and contains various offences of assault, stalking, contravention of domestic violence orders and includes an offence of robbery in company, detaining a person with intent to obtain advantage and the use of a carriage service to threaten to kill persons. It is a very serious record.

1. After considering the applicant's criminal history the sentencing judge said, correctly, that it is not a record which would allow the court to extend any leniency whatsoever.

1. There are four grounds of appeal.

Ground 1:The learned sentencing judge erred in failing to have any or proper regard to the fact that counts 1 and 2 could have been dealt with in the Local Court and failed to have any proper regard to the maximum penalty in such a case.

1. The applicant submitted, correctly, that both of the offences could have been dealt with summarily in the Local Court where a maximum penalty of 2 years imprisonment could have been imposed. The sentencing judge did not advert to that possibility and it was not raised by either the prosecutor or counsel for the applicant. This is not surprising having regard to the applicant's extensive criminal record and the serious objective criminality, particularly in relation to the second count.

1. In Lewis v R [2011] NSWCCA 206 Harrison J (Whealy J A and Latham J agreeing) cited (at [34]-[37]) various statements of principle with respect to this issue, including those by Hall J in Palmer v R [2005] NSWCCA 349; Davies J in Bonwick v R [2010] NSWCCA 177 and Price J in Dagdanasar v R [2010] NSWCCA 310.

1. In the last of these cases Price J set out the relevant principles. Dagdanasar had pleaded guilty to a number of offences, including one count of knowingly driving a conveyance without the consent of the owner contrary to s 154(10)(b) of the Crimes Act 1900. The offence had a maximum penalty of 2 years imprisonment if dealt with in the Local Court, and one of 5 years imprisonment if dealt with on indictment. Dagdanasar was sentenced to a non-parole period of 2 years with an additional term of 18 months. He had a "lengthy record that included convictions for offences of break enter and steal, assault occasioning actual bodily harm, receiving stolen property and contraventions of apprehended domestic violence orders and has a record for matters dealt with in the Children's Court including offences of stealing a motor vehicle, taking and driving a conveyance and being carried in a conveyance without the consent of the owner."

1. In the course of his judgment Price J said at [40]:

"It is unsurprising that the sentencing judge did not mention that the offence could have been dealt with summarily. The objective seriousness of the offence, the criminal record of the applicant and the fact that it was committed in breach of parole all called for a sentence in excess of two years. The applicant was not entitled, in my opinion, to any weight being given to the loss of chance of summary disposition."

1. Price J then referred to what Johnson J said in R v EI Masri [2005] NSWCCA 167 at [29]:

"It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford (1994) 72 A Crim R 160 at 195; R v Griggs (1999) 109 A Crim R 484 at 485-6; Crombie, at paragraph 16; Doan, at 123ff (paragraph 35ff); R v LPY (2002) 135 A Crim R 237 at 240. But it is not a universal rule (Sandford, at 195) nor a factor which operates universally to reduce sentence (Doan, at 124). In some circumstances, the Court may conclude that the offender's criminality was too serious to be dealt with in the Local Court and that the matter was properly before the District Court: R v Hanslow [2004] NSWCCA 163 at paragraph 21. The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma [2003] NSWCCA 382 at paragraph 13."

1. To my mind, similar observations to those made by Price J are appropriate in the present case and lead inevitably to the conclusion that this ground of appeal must fail.

Ground 2(i):The sentencing judge erred in making a determination as to where in any range of objective seriousness the offending fell in that ... this was a finding the sentencing judge was not required to make.

1. It was submitted that his Honour, contrary to authority, carried out a two-stage approach to sentencing the applicant. I reject this submission. A careful reading of his Honour's remarks makes plain that he considered the objective seriousness of each of the offences using terminology appropriate to offences which carry standard non-parole periods. The present offences do not carry standard non-parole periods. However, this is of no moment. A sentencing judge must always consider the criminality involved in the offending and it was for this purpose that the sentencing judge identified the objective seriousness of each offence. However, in so doing his Honour did not engage in a two-stage process of reasoning.

Ground 2(ii):The sentencing judge erred in making a determination as to where in any range of objective seriousness the offending fell in that ... the sentencing judge erred in taking into account the fact the offence was committed whilst on conditional liberty as going to the objective seriousness of the offence.

1. Under this ground the applicant submitted that his Honour erred by having regard to the fact that the offence was committed whilst the applicant was on conditional liberty when considering the objective seriousness of the offence.

1. The relevant passage from his Honour's remarks was:

"These crimes are prevalent and serious. Both reflect an attitude towards women and violence and the use of weapons by the offender, however I regard the indecent assault as being well below the middle of any scale constructed for such offences and the charge of being armed to intimidate a little below the middle of such scale. Both offences must result in prison sentences with the aggravating feature to which I have referred."

1. The aggravating feature to which his Honour had previously referred was the fact the offences were committed whilst the applicant was on parole. However, as I understand the passage quoted, his Honour did not include this matter in his assessment of the objective seriousness of the offence. Rather, he included it in his consideration of the appropriate sentence.

1. The applicant asserted that his Honour erred in his assessment as to the objective seriousness of the "armed with intent" offence. As is often noted by this Court, the characterisation of the degree of objective seriousness of an offence is a matter for the sentencing judge. It is only if this Court determines that, upon application of the correct principles, error is established that it may intervene: see R vKoloamatangi [2011] NSWCCA 288.

1. It was submitted by the applicant that this offence was not objectively serious, since it was to be seen in the context of what had happened, with the applicant being easily overcome by others and ultimately no violence being inflicted.

1. It was further submitted that the indictable offence contemplated, being the intention to commit intimidation, seems to have been the least serious of the indictable offences with which an offender can be armed to commit. It was submitted that it was significant that the applicant was armed with a knife and not a firearm, and the objective seriousness of the armed with intent offence was "a little below the middle [of the range of objective seriousness]." I am not attracted by this submission. This was a very serious offence. The applicant was carrying a knife and, but for the fact that he was restrained, the situation could have ended up with far more significant consequences. There are many offences which the section contemplates which would be of less serious criminality than the circumstances in which the applicant offended.

1. To my mind, none of the matters to which the applicant draws attention establish that his Honour was not entitled to form a view as he did that the objective seriousness of the armed with intent offences was "a little below the middle [of the range of objective seriousness]." Indeed, in my opinion, given the state of fear induced by the applicant's actions, his Honour was, if anything, favourable to the applicant.

Ground 3:The sentencing judge erred in his approach to the structuring of the sentences for the individual offences in that there was an inappropriate accumulation of the sentences imposed which led to a combined sentence that overstated the total criminality of the offending.

1. In support of this ground the applicant submitted that his Honour did not fix the sentences in accordance with the principles provided in Pearce v R [1998] HCA 57; (1998) 194 CLR 610. I reject that submission. The sentencing judge provided the sentence which he believed to be appropriate for each offence and then considered questions of accumulation or concurrence as well as questions of totality. Although he did not expressly refer to Pearce it was plain he carried out the sentencing task as the High Court requires. The extent to which the sentencing judge accumulated the individual sentences does not reveal error and was entirely appropriate.

Ground 4:The individual sentence imposed on count 2 was manifestly excessive and the overall sentence was manifestly excessive.

1. In support of this ground the applicant referred to the sentencing statistics of the Judicial Commission and submitted that they reveal that in some 754 cases only 33 percent of offenders were given fulltime custodial sentences and 82 percent of those were jailed. The statistics reveal that when sentencing in the higher courts, a sentence of fulltime imprisonment is imposed in 61 percent of cases with a total term of 30 months or less being imposed in 67 percent of cases. Accordingly, it was submitted that the sentence which his Honour imposed in the present case in relation to count 2 was excessive.

1. The appropriate use of the sentencing statistics has been commented upon by this Court in many cases. They provide useful information in respect of the range of sentences which have previously been imposed for a particular offence. However, an individual offender must be sentenced having regard to the particular circumstances of his or her offending and the personal circumstances of the offender.

1. In the present case the applicant has a very significant criminal history extending back to when he was 16 years of age when he was sentenced for an offence of custody of a knife. He has numerous prior convictions for offences of violence including assault, intimidation and breach of apprehended violence orders. His record includes an offence of robbery in company.

1. The present offences were committed whilst the applicant was on parole, which was an aggravating factor correctly identified by the sentencing judge. Although the trial judge observed that it was likely the applicant had psychiatric or psychological "short comings" the applicant did not seek to tender any professional report in relation to his psychological well being.

1. To my mind, the applicant's manifest disregard for the constraints which the law imposes on his behaviour towards others justified a significant sentence in the present case. Without evidence which suggested any mitigating circumstances in the applicant's personality or other personal circumstances, the sentence which his Honour imposed was entirely appropriate.

1. In my view the application is entirely without merit. I would refuse leave to appeal.

1. JOHNSON J I am of the view that these were serious offences committed by the applicant. The applicant was on parole at the time of the commission of the offences. The offence under s 114(1)(a) of the Crimes Act 1900 involved the placing of people in significant fear by his actions.

1. In my view the grounds of appeal are unmeritorious and the appropriate order is that leave to appeal against sentence ought to be refused.

1. ROTHMAN J: I agree with the Chief Judge at Common Law.

1. McCLELLAN CJ at CL: The orders of the court are as indicated.

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Decision last updated: 11 April 2012