Foster v The Queen

[2011] NSWCCA 285

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Foster v R [2011] NSWCCA 285

Hearing dates:

3 November 2011

Decision date:

20 December 2011

Before:

McClellan CJ at CL [1]
Adams J [5]
Hoeben J [55]

Decision:

1.Leave to appeal is granted and the appeal is allowed.

2.The sentence in respect of count 1 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 5 years commencing 2 October 2009 and expiring 1 October 2014 with a balance of term of 2 years to expire on 1 October 2016.

3.The sentence imposed in respect of count 2 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 2 years commencing 2 October 2013 and expiring 1 October 2015 with a balance of term of 3 years expiring 1 October 2018.

Catchwords:

SENTENCE - standard non-parole period - statutory requirements - proper approach to sentencing.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986

Cases Cited:

DB v The Queen (2007) NSWCCA 27, 167 A Crim R 393
Kelly v The Queen (2007) NSWCCA 357
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Biddle [2011] NSWSC 1262
R v Blundell (2008) NSWCCA 63, 70 NSWLR 660
R v Muldrock [2010] NSWCCA 106
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

Category:

Principal judgment

Parties:

Timothy James Foster
The Crown

Representation:

C Davenport SC (Applicant)
J Pickering (Crown)
B Sandland (Applicant)
S Kavanagh (Crown)

File Number(s):

2009/220629 2009/218797

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2010-09-29 00:00:00

Before:

Conlon J

File Number(s):

2009/220629
2009/218797

Judgment

1. McClellan at CL: I have read the judgment of Adams J in draft. I have also read the short judgment of Hoeben J. I agree with the orders proposed by Hoeben J.

1. These were both serious offences the penalty for which cannot be mitigated by the fact that the applicant was intoxicated at the time. His Honour suggests that because the applicant was intoxicated he may have been less dangerous to his victims. I firmly reject that proposition. A person who is intoxicated welding scissors or any other weapon is most likely to be less inhibited than a person who is sober. Once their inhibitions have been released the potential for serious harm is increased.

1. The sentence for these offences must bring home to the applicant the seriousness of his offending. It is plain that although he may have refrained from offending for a period, when his personal circumstances changed he, no doubt disinhibited by alcohol, again committed serious crimes. His sentence must also recognise the need to deter him from again offending.

1. The sentence suggested by Adams J has been influenced by his acceptance of the principal of "parsimony" which his Honour discussed in DB v The Queen (2007) NSWCCA 27, 167 A Crim R 393 at 396 [10]. His Honour's views on this issue were not embraced by the majority in DB and were authoritatively rejected by this Court in R v Blundell (2008) NSWCCA 63, 70 NSWLR 660. They were also rejected by Basten JA in Kelly v The Queen (2007) NSWCCA 357 with which Adams J agreed.

1. Adams J: On 20 September 2010 the applicant was convicted by a jury of the following offences -

(i) On 2 October 2009 at Albion Park, whilst armed with an offensive weapon, took and drove motor vehicle without the consent of the owner. The maximum penalty for this offence is 14 years with a standard non-parole period of five years. Sentenced to a head of eight years with a non-parole period of six years commencing 2 October 2009.

(ii)   On 2 October 2009, using an offensive weapon to avoid arrest. This carries a maximum penalty of 12 years with no standard non-parole period. Sentenced to a head sentence of six years with a non-parole period of three years commencing 2 October 2014.

1. The applicant was also sentenced, following his plea of guilty, to a charge of receiving cigarettes and lottery tickets committed on 3 September 2009, for which he was sentenced to a fixed term of 18 months commencing on 2 October 2009. He was in custody from the date of his arrest on 2 October 2009.

1. The applicant was also dealt with under s166 of the Criminal Procedure Act 1986 for five offences comprising two charges of driving whilst disqualified, one charge of dangerous driving, one charge of failing to submit to a breath analysis and a charge of driving whilst under the influence of alcohol. The sentences for each of these offences were wholly subsumed within the sentences imposed for the indictable offences and are not the subject of this appeal.

1. In respect of count 1 the applicant was sentenced to a non-parole period of six years to commence on 2 October 2009 with an additional term of two years expiring on 1 October 2017. In respect of count 2 he was sentenced to a non-parole period of three years to commence on 2 October 2014 with an additional term of three years to expire on 1 October 2020. The overall effective sentence was therefore a head sentence of 11 years with a non-parole period of eight years.

1. The applicant relied on the following grounds of appeal -

(i)   His Honour erred by taking into account as aggravating features matters that were elements of the offence.

(ii)   The sentences imposed were manifestly excessive.

(iii)   (By leave) his Honour erred in using the standard non-parole period as the starting point for a mid-range offence after conviction.

1. The third ground of appeal applies only to the sentence on the first count in the indictment. As I am satisfied that this ground has been made out, it has not been necessary for me to consider whether the first two grounds of appeal should be upheld in respect of that offence. So far as the second count of the indictment is concerned, the only ground of appeal pressed was the second.

Facts

1. These were not in contention in the appeal and were found by the sentencing judge following trial from whose reasons for sentence the following account is largely taken. On the evening of 2 October 2009 the victim collected a takeaway order from a Chinese restaurant and got back into her motor car. The applicant put his head inside her car and said in a quiet but forceful voice, "Just move over, I want your car". She said she could smell alcohol and responded, "Look you can have my car, here are the keys, just let me go". The victim said that the applicant then moved something towards her, which she could see was a blade of a pair of scissors inside his hand. She said that the blade was pointing into her ribs. She still had the keys in her hand and the applicant said, "Just move over, you're coming with me, we're going for a drive". The victim said, "at that point, I thought I was dead, I'm in big trouble...". She climbed over the console and into the front passenger seat. The applicant entered the vehicle. At some stage the victim gave him the keys and noticed that he was struggling to put the keys into the ignition. It seems that at this time the scissors were no longer being brandished. The victim threw the passenger door open and jumped out of the car, which then took off, swerving onto the wrong side of the road. The victim started to scream. Two women ran to her aid, took her back into the Chinese restaurant and called 000. Shortly after the applicant ran the car into another vehicle, accelerated past it onto the wrong side of the road and collided with a pine tree on the footpath. He reversed and turned left into another street and, a short time later, mounted the footpath, entered the garden of a house, reversed again and, leaving the car at an angle on the street, fled and tried to hide behind some bushes.

1. Alerted by a 000 call made by a witness, police vehicles attended at the scene. One of the officers, as he drove past, saw the applicant lying on the ground and said to him, "Police mate, don't do anything stupid". The applicant swore at him and stood up. The officer told him he was under arrest, the applicant replied, "Fuck you cunt" and ran across the yard to a nearby fence which he climbed. The officer pursued him calling "Stop. Police". The applicant stopped and turned towards the officer raising his hands above his head holding the scissors. A capsicum spray used by the officer missed and the applicant ran away. Stopping near a garage at the rear of premises, the applicant turned to face the officer and, with the scissors held shoulder height, ran towards him making a slicing motion. The officer evaded him and aimed another burst of capsicum spray which, this time, started to affect the applicant who made another charge which the officer evaded again. The applicant ran down the driveway, chased by the officer. He stopped with the officer about two metres away from him and again raised the scissors in his right hand and again the officer sprayed the capsicum spray at him. By this time other police officers arrived and knocked the applicant to the ground, causing him to drop the scissors. He was then placed under arrest. It appears that the applicant was heavily intoxicated.

Subjective case

1. The applicant's prior record was described by the sentencing judge as follows -

"[The applicant's] record reveals a juvenile criminal history before receiving a substantial sentence of eight years penal servitude with a non-parole period of four years for a charge of armed robbery in 1984. In 1990 he received short fixed terms of imprisonment in respect of three charges of assault police, two charges of resist police and one of hinder police. In 1993 he received sentences for supply prohibited drug and break and enter and commit malicious wounding. In 2001 he was fined in respect of two counts of assault on officer in the execution of duty. It appears he then remained out of trouble until December 2008 when again charged with resisting a police officer in the execution of duty and ultimately received a fixed term of 3 months imprisonment (imposed after being taken into custody in respect to the present offences (sic))."

1. It appears that the sentencing judge accepted the following, put before his Honour by way of submissions from the bar table. The applicant had been married for 24 years and had three children out of that relationship aged as at the date of sentence 20, 14 and 3 years. Following the break up of his marriage at the end of 2008 "his life then went off the rails" and he began drinking heavily. This was supported to some degree by the criminal history showing a lack of offending from 2001 until December 2008. The applicant had been consistently employed and in the first half of 2009 had been working as a labourer and cleaner.

1. His Honour noted that no further subjective material had been placed before the court. There was no evidence, therefore, of remorse. His Honour made no reference to the applicant's prospects for rehabilitation but it seems to follow from his history that, given the nature of the events which it is probable precipitated the applicant's re-offending, there would be reasonable prospects for rehabilitation if he were able to resolve the problem that led him to resume excessive drinking.

Assessment of objective seriousness.

1. So far as the first count on the indictment is concerned, his Honour's assessment of objective seriousness was, with respect, conventional. He noted the presence of the standard non-parole period and the requirement "to hypothesise what as an abstract defence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence", taking up the language of this court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 -

"[72] It is evident that the sentencing exercise which is now required for Table offences requires a critical focus, not only upon the objective seriousness of the particular offence before the court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified.

[73] There is no statutory definition or guide as to what is an offence in the middle of the range of objective seriousness, even though this is a key to the sentencing exercise.

[74] It was urged upon this Court by counsel for the applicant and by the Crown that there is no need for a judge to determine, in any given case, what is an abstract offence in the middle of the range of objective seriousness. It was further submitted that, if any such exercise is required, then it should be approached intuitively and should be based upon the general experience of the

courts in sentencing for the particular offence.

[75] We do not have any difficulty with the second proposition, but we do not consider that the first proposition is correct.

[76] Unless some understanding is reached as to what is a midrange offence, we are unable to see how any meaningful comparison can be made between the offence at hand, and the offence for which the standard non-parole period is prescribed. Difficult and imprecise it might be, but the reference point identified in s 54A has to be kept in mind if the sentencing exercise is to comply with the legislative intention expressed in the Division.

[77] We do not however consider that the exercise which is required will differ, to any material extent, from that which has always been necessary in evaluating the objective seriousness..."

1. This approach was summarised by Simpson J in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 in the following proposition, which has been frequently restated, although the exercise of hypothesising an abstract offence, to judge by the cases that come to this Court and the judgments in this Court, has in fact rarely been undertaken -

[13] ... [a] sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence..."

1. Having cited this principle, the sentencing judge pointed out -

"The offender did not merely present a weapon and order the vehicle owner to step aside in order to drive off in it, the victim in this car offered her keys and asked to be let go. She observed him produce the scissors and point them into her ribs. He then said, "Just move over, you're coming with me, we're going for a drive". This no doubt was a terrifying experience for the victim and these factors that I have just identified significantly aggravate the offence. I also take into account that the offender was on a s 21A recognisance (imposed 7 August 2009) and also on bail at the time of the commission of these offences. There are no mitigating factors. So far as this offence is concerned my assessment of the objective seriousness is that it falls above the mid range though certainly short of the worst case category."

1. His Honour did not, it seems, regard the applicant's intoxication as material, although it was so great that he was unable to control the car in a meaningful way. Although the scissors were presented and brandished in a threatening way, it appears that they were easily evaded and the applicant did not come within actual striking distance.

The significance of the standard non-parole period

1. Although it was agreed that the significance of the standard non-parole period is to be assessed in light of Muldrock v R [2011] HCA 39 there were no arguments directed to the Court by either side as to what that decision actually required. Since this Court must resentence the applicant in accordance with Muldrock , it is necessary, as I see the matter, to set out how that decision impinges on the manner in which the standard non-parole period is to be utilised.

1. It is useful to begin by analysing the sentencing judge's reasoning in light of Way . His Honour commenced by referring to the standard non-parole period but, although he referred to the approach required by Way as to the need to hypothesise "an abstract offence in the middle of the range" did not actually do so, except possibly by way of the implication that, had the applicant merely presented the scissors and ordered the victim to step aside in order to drive off in her car, the offence would have been found to be in the middle of the range of objective seriousness. His Honour then identified the factors which he regarded as significantly aggravating the offence, implicitly taking it beyond the middle of the range. Taking up the list of matters in s 21A, his Honour referred to the two facts which differentiated the case from a middle of the range case, then to the "terrifying experience for the victim" (a reference to s 21A(1)(g)), noting, however, that though he had "taken all those matters into account, they do not constitute an additional aggravating factor under s 21A(2)(g)... [but] nevertheless served to highlight the most serious nature of the offending conduct", and then to the recognisance imposed on 7 August 2009 (a reference to s21A(1)(j)) and the fact that he was on bail. His Honour noted that there were no mitigating factors, these being listed in s21A(3) of the Act and concluding that the objective seriousness was above mid-range, fixed a non-parole period in respect of this offence of six years, exceeding the standard non-parole period by 1 year.

1. I turn now to Muldrock, in which the meaning of s54B of the Act and the correctness of its interpretation in Way was considered. The Court said -

"[17] The provisions introduced by the Amending Act focused upon the fixing of non-parole periods. It remained, and remains, essential to recognise, however, that the fixing of a non-parole period is but one part of the larger task of passing an appropriate sentence upon the particular offender. Fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end-point in framing a sentence to which Div 1A applies.

[18] At common law the exercise of the sentencing discretion is the subject of established principles. These include proportionality ( Veen v R [No2] (1988) 164 CLR 465) , parity (Lowe v R (1984) 154 CLR 606) , totality ( Mill v R (1988) 166 CLR 59), and the avoidance of double punishment ( Pearce v R (1998) 194 CLR 610) . In R v Way , the Court of Criminal Appeal held that s 21A(1) preserves the entire body of judicially developed sentencing principles, which constitute "law" for the purposes of both s 21A(1) and (4) ( R v Way (2004) 60 NSWLR 168 at 183 [56]-[57]) . No question of the correctness of that interpretation was raised in this appeal and it may be accepted. In this statutory context the principles of the common law respecting the sentencing of offenders answer the description of "matters that are required ... to be taken into account by the court under any ... rule of law" ( Cf R v Hoar (1981) 148 CLR 32 at 38 per Gibbs CJ, Mason, Aickin and Brennan JJ) . "

1. The High Court noted that the Court of Criminal Appeal in Way took as its starting point that s54B(2) was expressed in "mandatory terms" which then required a determination of "what would constitute an abstract offence in the middle range of objective seriousness" in order to determine (by comparison) whether the offence in question fell within this range. The High Court accepted as correct the respondent's submission that "the effect of ... [s 54B] is not to mandate a particular [non-parole period] for a particular category of offence, rather it preserves the full scope of the judicial discretion to impose a non-parole period longer or shorter than the [standard non-parole period]" (ibid at [24]). The Court added -

[25] [It] follows ... that Way was wrongly decided ... [and] it was an error to characterise s 54B as framed in mandatory terms. The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness." (Emphasis added.)

1. This passage apparently leaves open the possibility that asking and answering the question whether there were reasons for not imposing the standard non-parole period ("the Way question": see Way ibid at [117], [122]) might not be inappropriate. This question is, I think, answered by the approach which the Court described in the ensuing discussion. First, the Court noted that all the factors relevant to determining an appropriate sentence were required to be taken into account, bearing in mind "two legislative guideposts: the maximum sentence and the standard non-parole period" ([27]). Since "meaningful content" cannot be given to the latter factor by taking into account "matters personal to a particular offender or class of offenders", the objective seriousness of the offence "is to be determined wholly by reference to the nature of the offending". (With respect, it is not clear whether, on the one hand, this means the offending conduct in the particular case or, on the other, the offending implied by the legal character of the offence. I attempt to answer this question in paras [26]-[27] below.)

1. Of fundamental importance is the principle that the legislation -

[26] ... requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 359 at 378 [51] -

[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. (Emphasis added.)

And -

[28] Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period. (Emphasis added.)

1. The Court did give content to the term "standard non-parole period": it "represents the non-parole period for an offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case " ([31], emphasis added). (This appears to be a statement of the effect of s 54B(3), which provides that the standard non-parole period can only be departed from for the reasons specified in s 21A whilst that section lists every matter capable of being relevant to sentence (with the possible exceptions of s 22A and s 23). Since those matters provide the grounds for departing from the standard non-parole period, it does not make sense that they - or at least, the objective features - can also be the matters taken into account to decide whether the offence is in the middle of the range of objective seriousness in the first place. The solution of allowing departure only by reference to the subjective matters listed in s 21A requires limiting the general language of s 54B significantly at odds with its natural meaning.) Since it is impossible to evaluate the objective seriousness of particular offending without taking into account all the circumstances of its commission, the objective circumstances that bring an offence into the middle of the range must necessarily remain, as it were, skeletal and, in the nature of the case, hypothetical since every offence is committed in particular circumstances. The High Court has now made it clear that the middle of the range objective circumstances placing the standard non-parole period does not reflect the facts in a particular case or, necessarily, any other facts than the bare elements of the offence, given that it is not permissible to hypothesise circumstances against which to compare the particular case. It need hardly be said that this is a very significant departure from the approach taken in Way .

1. At the same time, it is obvious that it is essential part of the sentencing process to identify and take into account all the objective circumstances of the commission of an offence. However, the "court is not required ... to proceed to an assessment of whether the offence is within the midrange of objective seriousness ( Muldrock at [25]) or "to classify the objective seriousness of the offending" ( ibid at [29]). An assessment that the objective circumstances place the case in the middle of the range of objective circumstances is not, as I understand Muldrock , prohibited but it is difficult to see why such an assessment should be made, since it yields no useful concomitant information: the objective facts are what they are and must be taken into account with all the other relevant material to arrive at the appropriate sentence. Certainly, it does not suggest in any way that the sentence should reflect, in any way, the arithmetical midpoint between zero and the maximum sentence. Even if, in a particular case, the objective circumstances, as it happened, were thought to be in the middle of the range of seriousness, this process is undertaken for the fundamental purpose of determining the appropriate sentence, of which the "fixing of a non-parole period is but one part of the larger task of passing an appropriate sentence upon the particular offender" (ibid at [17]) and not for ascertaining whether the standard non-parole period is to be imposed. Thus, since the middle of the range of objective seriousness for the purpose of giving content to the notion of the standard non-parole period, that is to say, as it were, for seeing where the guidepost is pointing, does not contain the circumstances in which the particular offence was committed, of necessity it cannot determine the sentence, let alone the non-parole period, at all events. Moreover, it is wrong in principle to determine a non-parole period independently of the overall sentence, let alone to start with a non-parole period (standard or otherwise) and build upon that calculation.

1. The sentence is thus set by bearing in mind the standard non-parole period in the sense ascribed by the High Court, namely as a guidepost, together with the maximum sentence, pointing to the seriousness of the offence. Merely because, taking all relevant factors into account, the offending happens to fall within the middle of the range of objective seriousness, does not justify undertaking a two stage approach and starting with the standard non-parole period to calculate the sentence.

1. So far as taking account of the objective circumstances are concerned, it is meaningful as well as conventional to describe that conduct in terms of its relative triviality or gravity, even though this would or at least should be clear from an adequate account of the relevant facts. What is important, as I understand it, is that this not be directed to applying or departing from the standard non-parole period as a step in the process of deriving a sentence.

1. The requirement of s54B(4) that the court must make "a record of its reasons for increasing or reducing the standard non-parole period" is satisfied by the requirement at all events imposed upon a judge "to identify fully the facts matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed". Section 54B(4) does not suggest a need either "to attribute particular mathematical values to matters regarded as significant" or "classify the objective seriousness of the offending": Muldrock at [29].

1. It seems to me that Muldrock establishes that the ordinary, longstanding method of setting sentences and, where appropriate, non-parole periods that applies to offences without standard non-parole periods, is now to be understood as entirely applicable to offences for which standard non-parole periods are prescribed, with the additional feature in the latter class of case that the court must bear in mind as guideposts not only the maximum sentence but also the standard non-parole period as statutory indications of the gravity of an offence . This does not entail the need to hypothesise possible conduct that might be so characterised but requires advertence to and consideration of the objective circumstances of the case in order to utilise the standard non-parole period as a guidepost.

1. In R v Biddle [2011] NSWSC 1262, Garling J summarised the effect of Muldrock in the following way -

"[23] In considering the imposition of a sentence under s 54B, the following considerations are appropriate:

(a) The effect of the s 54B(2), despite its apparently mandatory terms, is to preserve the full scope of judicial discretion to impose a non-parole period longer or shorter than a standard non-parole period: Muldrock at [25];

(b) When read with s 21A, s 54B requires an approach to sentencing which is consistent with the judgment of McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]: Muldrock at [26];

(c) In considering all factors relevant to sentencing the Court must keep in mind the two legislative guideposts: the maximum sentence and the standard non-parole period: Muldrock at [27];

(d) In giving content in a specific case to the statutory phrase "... an offence in the middle of the range of objective seriousness ...", the assessment is made without reference to matters personal to an offender or class of offenders, and is made by reference wholly to the nature of the offending: Muldrock at [27];

(e) The standard non-parole period is not the starting point in sentencing for a mid-range offence after conviction: Muldrock at [31], nor does it have determinative significance in sentencing an offender: Muldrock at [32]. "

1. If I may respectfully say so, I would agree with this summary of the position (so far as it goes) but, for the reasons I have given, subject to the (I think significant) qualification as to what is meant by the phrase "nature of the offending" in paragraph (d).

Consideration

1. The Crown submits that the sentencing judge did not use an approach contrary to Muldrock , contending that his Honour did not use the standard non-parole period as a starting point. Nor, it is submitted, did his Honour engage in two-stage sentencing. The Crown submits that, whilst it may not be necessary to classify the objective seriousness of an offence on the hypothetical range, it would not be an error to do so, nor would it indicate two-stage sentencing.

1. However, this was not the approach taken by the sentencing judge, which I have described above. It seems to me unarguable that his Honour was following the sequence of reasoning that s54B of the Act apparently required. In my respectful view, the sentencing judge approached the sentence by answering the Way question and dealing with the objective seriousness of the applicant's conduct as determining the non-parole period rather than as material to the sentence as a whole. In my view, this omitted to apply the emphasis expressed in Way of the importance of exercising the court's discretion by way of intuitive or instinctive synthesis in accordance with established sentencing practice and the need to avoid an approach which would lead to the standard non-parole period dominating "the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act": ibid at [131]. It is inescapable, with respect, that the standard non-parole period dominated the sentencing judge's determination of the sentence for this offence. For reasons that are made clear above, the approach of his Honour significantly differed from that required by Muldrock .

1. Accordingly, this Court must resentence the applicant in respect of this offence.

1. So far as the second count on the indictment is concerned, the sentencing judge noted that the police officer clearly announced himself as such and implored the applicant not to do anything stupid. Even when confronted with the capsicum spray, the applicant did not relinquish his weapon but continually charged at the officer, causing him to take evasive action. His Honour regarded this as an aggravating feature. That the applicant resisted lawful apprehension by attacking the officer and repeating this aggression several times plainly makes the offence more serious than it would have been had there been a mere non-aggressive presentation of the weapon and a momentary hindering of his apprehension. His Honour assessed the objective seriousness of this offence as "falling within about the mid-range or perhaps slightly above".

1. Counsel for the applicant referred to the fact that the weapon used was a pair of scissors as opposed to a firearm or a knife and pointed to the statistics kept by the Judicial Commission which showed, in a sample of 74 cases only two were sentenced to six years, one to seven years and one to nine years' imprisonment, the bell curve topping at about three years (23 cases). So far as the non-parole period statistics are concerned (a sample of 42 cases) seven were given non-parole periods of three years, one of four years and one of six years, 23 having non-periods of 18 months or less. It is necessary to exercise considerable caution when dealing with statistics of this kind, as has been repeatedly stated in this Court. Were that the sole matter relied on, I would take it as indicating, if anything, that his Honour imposed a sentence that was higher than the middle of the range of sentences usually imposed for offences of this kind and not for this reason justifying a conclusion that he erred in the exercise of his discretion.

1. Furthermore, as the Crown points out, all of the cases specified in the non-parole periods/ fixed terms statistics were pleas of guilty whilst the total sentence statistics contained only five cases where the pleas were not guilty.

1. There was no finding by the sentencing judge that the police officer was ever at serious risk of being injured, although it was necessary for the officer to evade the applicant and use the capsicum spray a number of times. As I have already mentioned the applicant was so significantly intoxicated that he was unable to control a motor vehicle for any substantial distance. Though on one level, this meant he was not amenable to reason, it also meant that he was a far less dangerous assailant than otherwise. The judge was quite right to emphasise the need to deter attacks on police officers who are doing their duty to protect the public and this certainly required the imposition of a significant gaol sentence.

1. The sentencing judge assessed the objective seriousness of this offence as being in or near the middle of the range, but gave no further explanation of this assessment than describing the circumstances of the offence itself. Whether or not this description were justified, the question, at the end, is whether the sentence is manifestly excessive having regard to all the relevant circumstances, including the subjective features.

1. Subjectively, it is relevant to the assessment of the need for personal deterrence in particular to note that the applicant had been convicted on some ten prior occasions of either resisting an officer in the execution of his duty or assaulting police. The first occurred in 1983 when the applicant was seventeen years of age (apparently connected with an assault occasioning actual bodily harm); four years later he was convicted of three offences of assault police (almost certainly arising out of the same situation) and fined $150 on each charge; in July 1989, an offence of resisting arrest and fined $150; in January 1990, two charges of assaulting police (again I think arising out of the same situation) for which he was sentenced to concurrent terms of three months imprisonment; in March 1990 one offence of assaulting police and hindering police and two offences of resisting police (also apparently arising out of the same incident); in August 2001, two charges of assaulting police for which he was fined $150 and placed on a s9 bond. There are then no other offences until he was charged in December 2008 with resisting police. He apparently had absconded and was eventually sentenced to three months imprisonment on 6 October 2009, in the meantime having been arrested for another resisting police offence on 20 September 2009 for which he received a concurrent three month sentence also on 6 October 2009. Most of the offences involving police were associated with offensive behaviour, with some of common assault or malicious damage. Without minimising his criminal record, leaving aside charges in March 1984 of breaking, entering and stealing and armed robbery and a breaking and entering with wounding to which the primary judge has referred, it contains nothing approaching the seriousness of the present offences. It is difficult to assess the seriousness of the offences involving police. Judging by the penalties, they were not significantly serious. Resisting or hindering police will usually be less serious than assaulting police. Using an offensive weapon certainly increases the criminality by a substantial margin.

1. The fact that there was a substantial period during which the applicant had not committed any offences was a most significant matter and required at least some consideration to be given to the likelihood that, had it not been for the circumstance of his separation and his excessive drinking, these offences would not have occurred. It also suggests that he is capable of rehabilitation.

1. I have mentioned that the primary judge did not advert to the intoxicated state in which the applicant committed these offences. Intoxication is not, of itself, mitigation. However, it is not immaterial, since it might explain the offences, if it did not excuse them. In this case, it seems to me fair, given the very substantial gap in the applicant's offending to which I have referred, to ascribe the applicant's relapse as at least significantly contributed to by his drinking brought on by the break-up of his relationship. It therefore reflected a judgment warped by drunkenness rather a deliberate return to criminality. This is material both to the criminality of the offences themselves as well as prospects for rehabilitation.

1. Personal deterrence needed to be given some greater emphasis in the applicant's case, having regard to his past dealings with police. Although the applicant's drunkenness apparently made him impervious to reason and thus more dangerous, it also made his brandishing of the scissors easier to evade and him easier to subdue. The offence was impulsive rather than premeditated. In my respectful view, the sentence was manifestly excessive in all the circumstances of the case.

Proposed sentences

1. It is therefore necessary to re-sentence the applicant for both offences charged on the indictment.

1. Having regard to the recent adoption by the High Court in Muldrock of the principles of sentencing emphatically stated by McHugh J in Markarian v R [2005] HCA 25; (2006) 228 CLR 357; (2005) 215 ALR 213; (2005) 79 ALJR 1048 (18 May 2005), I think it is helpful to set out parts of his Honour's judgment which are of particular importance (most references omitted) -

[50] ... The appellant was granted special leave to appeal in this case because he contended that the key question in the case was whether "two-tier sentencing" in contrast to "instinctive synthesis" is the correct approach to sentencing. In this case, the Court of Criminal Appeal applied the "two-tier" approach. It erred in doing so.

[51] By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

[52] The two-tier sentencer contends that using the instinctive synthesis is inimical to the judicial process and is an exercise of arbitrary judicial power, unchecked by the giving of reasons. The two-tier sentencer claims ... [as the primary judge] did in this case, that, where the sentence is the result of an instinctive synthesis, it makes one "wonder whether figures have not just been plucked out of the air ..." The instinctive synthesiser, on the other hand, contends that the two-tier sentencer mistakes an illusion of exactitude for the reality of sentencing because there is no method of sequential arithmetical reasoning that produces the correct sentence for any case. A sentence can only be the product of human judgment, based on all the facts of the case, the judge's experience, the data derived from comparable sentences and the guidelines and principles authoritatively laid down in statutes and authoritative judgments. The instinctive synthesiser asserts that sentencing is not an exercise in linear reasoning because the result of each step in the process is not the logical foundation for the next step in the process. Nor in practice can it be an exercise in multiple regression where one starts with particular coefficients and adds to or subtracts from their result by changing the weighting of each variable as new variables are added to the process. The circumstances of criminal cases are so various that they cannot be the subject of mathematical equations. Sociological variables do not easily lend themselves to mathematization. Hence, when judges embark on a process that seeks to adjust incrementally or decrementally a hypothetical sentence, "they but illustrate the way in which the human mind tries, and vainly tries, to give to a particular subject matter a higher degree of definition than it will admit", as Lord Porter said ... in another context.

...

[54] Moreover, by concentrating on the objective circumstances of a crime, the judge is giving effect, and ultimately greater weight, to the retributive or deterrent theory of sentencing. Indeed, the judgment of the Court of Criminal Appeal in this case makes it clear that the Court thought that the issues of retribution and deterrence were the dominant issues in the case. Consciously or unconsciously, the judge who commences with a notional sentence downplays the importance of mitigation, reformation and rehabilitation in the sentencing process. Cognitive psychology has long emphasised the difficulty that the human mind has in giving correct weightings to each of a number of variables. In particular, people frequently fail to distinguish between the strength of evidence and its relative weight in determining the outcome or prediction...

The tendency of the mind is to seize on one or two variables - usually those with which the decision-maker is most familiar or which seem most cogent - and give that variable or those variables undue weight. Overconfidence - but sometimes underconfidence - in the significance of factors or the accuracy of the assessment is very common. The tendency to err must increase when particular circumstances are selected as the starting point for the decision and further factors are allowed to modify the starting point.

[55] One fact that critics of the instinctive synthesis approach do not face up to - assuming they are aware of it - is that the first tier of the two-tier approach - unless it is the maximum sentence - is itself derived by an instinctive synthesis of the "objective circumstances" of the case. Or on another view of the two-tier approach, the first-tier sentence is the product of a value judgment that is proportionate to the offence. But as the Victorian Court of Criminal Appeal said in R v Young [1990] VicRp 84; [1990] VR 951 at 960:

"What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence ... Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error. Upon what facts is the proportionate sentence to be fixed?" (Emphasis in original.)

[56] Analysing the process involved in two-tier sentencing reveals that its appearance of objectivity and unfolding reason is illusory. Whether the starting point is a sentence derived from the objective circumstances or a sentence proportionate to the offence, the correctness of the sentence always depends on the correctness of the value judgment involved in assessing the first-tier sentence. But even if the judge can correctly assess the first-tier sentence, the judge must still correctly assess the quantum of the increment or decrement for each factor in the process. With great respect to those who think the contrary, it would require a judge to have the statistical genius and mental agility of a Carl Friedrich Gauss ... to arrive at the correct sentence using these methods. As Gaudron, Gummow and Hayne JJ pointed out in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611 [74], "mathematical increments and decrements to some pre-determined notional sentence are "apt to give rise to error".

1. The necessity that, in the end, the sentence must reflect the sentencing judge's view of the way in which the interlocking considerations apply in the particular case, leads to the requirement that the sentence which the judge imposes should not be greater (or, for that matter, lesser) than those considerations imply. I am not suggesting that the judge should pass a sentence at the bottom of what might be thought to be the available discretionary range. It seems to me, however, that it is helpful, as a useful check, to ask the question whether a lesser sentence will adequately answer the case as the sentencing judge sees it . It may be naive to say so, but surely it must be the case that it is unjust to pass a sentence that is greater than the relevant considerations of sentencing require. Of course, reasonable minds may well differ as to what result those considerations entail. But to seek to pass the sentence that is the least that satisfies the function of criminal punishment is, I think, appropriate. I would ask rhetorically, why, if that sentence fulfils the interests of criminal justice, would one wish to pass a heavier sentence?

1. Since writing the above, I have had the benefit of seeing, in draft, the judgment of McClellan CJ at CL, in which his Honour discusses this passage in light of my remarks in DB v The Queen (2007) NSWCCA 27, 167 A Crim R 393 at 396 [10] and subsequent decisions of this Court. In DB I said -

[10] The first part of the requirement is not difficult to apply. It is a fundamental assumption of sentencing jurisprudence that in no case will only one sentence be correct. The sole exception might be life sentences under s 61 of the Crimes Act 1900, not only in principle but also because of the terms of the section itself. In every other case the circumstances will justify a range of sentences, often quite a wide range, that may properly be passed. Although not articulated, so far as I am aware, in the decisions of this Court, it seems to me that it is also fundamental that the minimum sentence that [it] reflects the objective and subjective features of a case and satisfies the purposes of sentencing (such as protection of the public: Veen v The Queen [No.2] (1988) 164 465 at 473) should be that which is imposed. This has been called the principle of parsimony, a phrase that originated in the judgment of Napier CJ in Webb v O'Sullivan (1952) SASR 65 at 66 and has become common in Victoria see, eg, R v Storey (1996) [1998] 1 VR 359 at 366; R v PP (2003) 142 A Crim R 369 at 374. To impose a more severe sentence is, ex hypothesi , to intrude other inappropriate purposes into the administration of criminal justice. It is trite that minds may well reasonably differ as to what this minimum sentence might be in the circumstances of any particular case. Whether one applies this approach or not, it is unarguable that more than one sentence will invariably be warranted in law. This assumption is fundamental to the application of s6(3) of the Act.

1. It is not possible to maintain that it is proper to pass a sentence that is greater than the requirements of criminal justice require. Of course, reasonable minds might well differ as to what this sentence will be. Thus it is accepted that, in respect of any case, a range of sentences will be available. There is no bright line at the "borders" but, when considering an appropriate sentence, the sentencing judge will not wish to pass a sentence that is either manifestly excessive or manifestly too lenient. Weighing up all the relevant considerations will yield a term even though the judge would accept that another judge might come to a different sentence. By suggesting that the sentencing judge should take a step back and ask whether his or her proposed term could be less and still answer, in his or her view, the requirements of the case, I did not say and I did not mean to suggest that the bottom of the discretionary range should be the resulting sentence. The sentencing judge might well consider that such a sentence, though within his or her discretion to pass - in the sense that it will not represent appealable error as manifestly excessive or manifestly too lenient - will not in a particular case answer the requirements of criminal justice.

1. As McClellan CJ at CL points out, the Court in R v Blundell (2008) NSWCCA 63, 70 NSWLR 660 disapproved the approach I proposed. Simpson J, with whom the other judges agreed said -

[39] The other members of the bench in DB; DNN were McClellan CJ at CL and Latham J, neither of whom endorsed the observations. Neither do I. Indeed, it seems to me that there is a fundamental contradiction in the paragraph: his Honour plainly accepts, as indeed he must, the well recognised and thoroughly entrenched principle that, in any case, a range of sentences exists. Where a sentencing judge imposes a sentence within that range, it will not be held to be erroneous, notwithstanding that another judge might have selected a different sentence. That cannot stand with the proposition, said to be "fundamental", that the minimum sentence that reflects the objective and subjective features of a case and satisfies the purposes of sentencing should be that which is imposed. The two simply cannot stand together.

1. I regret that perhaps I did not make it completely clear that I was not suggesting that a sentence at the bottom of the range should always be imposed or that a sentence that was within the discretionary range might nevertheless be appealably wrong simply because it was not the minimum sentence that satisfied the requirements of criminal justice. By proposing that the sentencing judge should consider what sentence criminal justice required and inflict no heavier penalty or, as I put it, should impose the minimum sentence that he or she considered to be adequate to achieve that result, I was not suggesting a ground of appeal. In no way was I seeking to qualify the "entrenched" principle to which Simpson J refers. On the contrary, my suggestion was proposed as a guide as to how to approach the placing of the case within that range. To say that a sentence should not be heavier than the case calls for may be not much more than saying that a sentence should be appropriate having regard to all the circumstances. But it is a way of casting that question that provides, to my mind, a helpful perspective.

1. In Kelly v The Queen (2007) NSWCCA 357 Basten JA said -

[30] To suggest that there will not be, almost inevitably, a range of sentences which could appropriately be characterised as "warranted in law" is to misunderstand his Honour's judgment; Adams J expressly stated the contrary in the balance of [10] through to [12]. If the "principle of parsimony" is taken to imply that there cannot be such a range, that language should be abandoned. Indeed, "parsimony" is a slightly curious word to use in this context, albeit it has, as his Honour noted, a respectable lineage in Victoria. In the South Australian case to which Adams J referred, Webb v O'Sullivan [1952] SASR 65 at 66, Napier CJ, in dealing with a traffic offence, had merely stated:

"Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest."

I agreed with Basten JA because, of course, I had not suggested that what I called the "principle of parsimony" implied that there was not a range of appropriate sentences; indeed, as his Honour pointed out, quite the opposite was the case. As it happened, the phrase struck me as a reasonable description of the approach I suggest, but obviously the label is unimportant. Although Napier CJ, in the passage quoted, was dealing with a traffic offence (and, as Simpson J rightly pointed out, did not actually refer to parsimony), his Honour's observation struck me as generally applicable, self-evidently correct and certainly unobjectionable although, given the present time, and in this Court, I chose rather to base the principle on rationality than mercy.

1. In respect of the first count on the indictment, I have described above the objective circumstances and the relevant subjective features, limited though they are. This is a serious example of an offence of this kind and requires a sentence of imprisonment. Bearing in mind the maximum term of imprisonment and the standard non-parole period for a case falling in the middle of the range of objective seriousness, I propose a sentence of four years' imprisonment to date from 2 October 2009. Having regard to the period of apparent rehabilitation and the likely cause of his relapse, I consider that a longer period on parole than would be available if the statutory ratio provided by s44 of the Act were to apply is necessary to encourage and support the applicant's rehabilitation, which his record suggests is within his capacity to undertake. These constitute special circumstances justifying a variation of that ratio. Accordingly, I would impose a non-parole period in respect of this offence of two years. In respect of the second count on the indictment I would impose a sentence of four years' imprisonment commencing on 2 October 2010 with a non-parole period of two years. The effective sentence will therefore be a head sentence of five years imprisonment with a non-parole period of three years imprisonment.

1. Hoeben J:

The factual background and remarks on sentence have been fully reviewed by Adams J in paragraphs [1] - [17] of his judgment. While I agree with his Honour's conclusion that the approach of the trial judge to the first count on the indictment was not in accordance with the guidance provided by the High Court in Muldrock v The Queen [2011] HCA 39 I am not prepared to endorse his Honour's comprehensive analysis of the meaning and application of that decision. This is not because I necessarily disagree with his Honour's conclusions, but the matter was not fully argued before the Court and I would prefer to defer reaching a final decision on that issue until full argument takes place in an appropriate case. Accordingly, I agree that the applicant has to be re-sentenced in respect of count 1.

1. I also agree with the conclusion of Adams J that the sentence imposed for count 2 was manifestly excessive and that the applicant is to be re-sentenced in respect of that offence.

1. Regrettably I differ from his Honour's assessment of what the appropriate sentence should be on re-sentencing. As his Honour pointed out personal deterrence in this matter needs to be given greater emphasis. I also assess the level of risk to the driver of the car and to the police officer from the actions of the applicant to be more serious than does his Honour. Finally, while I accept that the applicant's intoxication explains how these offences occurred, it should not be taken to excuse them.

1. The orders which I propose are as follows:

(1) Leave to appeal is granted and the appeal is allowed.

(2) The sentence in respect of count 1 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 5 years commencing 2 October 2009 and expiring 1 October 2014 with a balance of term of 2 years to expire on 1 October 2016.

(3) The sentence imposed in respect of count 2 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 2 years commencing 2 October 2013 and expiring 1 October 2015 with a balance of term of 3 years expiring 1 October 2018.

1. The effective overall sentence is one of 9 years with a non-parole period of 6 years. The applicant will be eligible for release on parole on 1 October 2015.

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Decision last updated: 10 January 2012