Gavin v The Queen

[2013] NSWCCA 99

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gavin v R [2013] NSWCCA 99

Hearing dates:

21 November 2012

Decision date:

06 May 2013

Jurisdiction:

Common Law

Before:

Macfarlan JA at [1]
Hall J at [2]
Campbell J at [3]

Decision:

1. Leave to appeal granted;

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - application for leave to appeal against sentence - armed robbery causing grievous bodily harm contrary to s98 Crimes Act 1900 (NSW) - whether sentence was manifestly excessive - whether ground made good by reference to comparable sentences

Legislation Cited:

-Crimes Act 1900 (NSW)
-Crimes Sentencing (Procedure) Act 1999 (NSW)
-Criminal Appeal Act 1912 (NSW)
-Judicial Officers Act 1986 (NSW)

Cases Cited:

-Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
-Henry v R [2007] NSWCCA 90
-Hili v The Queen [2010] HCA 45; 242 CLR 520
- House v R [1936] HCA 40; 55 CLR 499
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
-Markarian v the Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
-R v Engert (1995) 84 A Crim R. 67
-R v Henry [1999] NSWCCA 111; 46 NSWLR 346
-Wong v The Queen [2001] HCA 64; 207 CLR 584

Category:

Principal judgment

Parties:

William Gavin (Applicant)
Regina (Respondent)

Representation:

Counsel:
C. T. Loukas SC (Applicant)
F. Veltro (Crown/Respondent)
Legal Aid New South Wales (Applicant)
Solicitor for Public Prosecutions (Crown/Respondent)

File Number(s):

2008/199303

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-04-29 00:00:00

Before:

Judge Keleman S.C.

File Number(s):

2008/199303

Judgment

1. MACFARLAN JA: I agree with Campbell J.

1. HALL J: I agree with the orders proposed by Campbell J.

1. CAMPBELL J: The applicant seeks leave pursuant to s.5(1)(c) Criminal Appeal Act 1912 (NSW) to appeal from the severity of the sentence imposed upon him in the District Court of NSW by his Honour Judge Keleman S.C. on 29th April 2011.

1. The only ground advanced in support of the application is that the sentence is manifestly excessive.

1. The applicant was sentenced for one count of armed robbery causing grievous bodily harm, contrary to s.98 Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years imprisonment with a standard non-parole period of seven years.

1. The sentence consists of a non-parole period of six years commencing on 20th June 2009 and expiring on 19th June 2015, with an additional term of three years commencing on 20th June 2015 and expiring on 19th June 2018. The earliest date on which the applicant is eligible to be released on parole is 19th June 2015.

Facts

1. The offence was committed on 7th April 2008. The victim was a housemate residing in accommodation which the applicant was then sharing with his brother at Lalor Park.

1. The applicant was armed with two offensive weapons, being an iron bar and a small knife. The iron bar was a metal wheel brace. During the commission of the offence he struck his victim a number of times with the iron bar and stabbed him once with the small knife.

1. He robbed the victim of $15 (which was all the money the victim had), his ATM card (forcing him to provide the PIN number), and a mobile phone, on which he made numerous phone calls.

1. Viewed objectively, the offence involved significant cruelty and callousness. The applicant entered the victim's bedroom in the shared accommodation and roughly woke him from his sleep. He menacingly demanded money from him. When the victim remonstrated with the offender, he struck him hard on the top of his head with the iron bar and reiterated his demands.

1. The victim handed over his $15. The applicant was not satisfied and struck the victim again, this time on his back. He then demanded the ATM card, pin number, and phone, all of which the victim surrendered.

1. When the victim told the applicant that there was little money in the account, the applicant made it clear he did not believe him. He threatened the victim that if the PIN number was wrong "I will be back to finish you".

1. While the applicant was using the victim's phone, the victim tried to escape. The applicant chased him and knocked the victim's hands off the front door by striking them with the bar. He then told the victim to lie down. As he was doing so the applicant struck him again on the back with the metal bar, causing him to fall.

1. The applicant then "hog tied" the victim and again threatened to kill him if the PIN number was wrong.

1. The victim tried to feign a loss of consciousness in the hope that the applicant would stop assaulting him. But the applicant said, "You're just foxing me. Well let's see if you are foxing me." He then stabbed the victim in the foot eliciting a scream of pain, which provoked laughter on the part of the applicant.

1. The applicant then left the premises, warning the victim against calling the police.

1. The victim was left "hog tied", drifting in and out of consciousness for some hours before being able to free himself.

1. A neighbour arranged for an ambulance to attend which took the victim to Nepean Hospital.

1. The victim suffered a number of wounds and painful injuries, including five fractured ribs, an undisplaced fracture of the ulnar bone in the left arm and a fracture of the ring finger of his right hand. He required stitches, an above the elbow plaster cast on the left arm, and strapping of the right hand.

1. The applicant did not return to the premises, but absconded to Victoria, using the stolen mobile phone to call family and friends.

1. Victorian Police arrested him for breaching the bail previously granted in that State for unrelated matters, and he was remanded in custody.

1. An arrest warrant was issued from the Local Court of NSW on 14th July 2008 in respect of the subject offence.

1. I interpolate that the sentencing judge partially accumulated his sentence so it commenced 12 months after the applicant went into custody for the Victorian offences. This had the effect of backdating the sentence in New South Wales by about thirteen months and one week.

1. The sentencing judge assessed the objective seriousness of the offending as falling "at the upper end of the middle range of objective seriousness for such offences".

Aggravating factors

1. The applicant's offending was attended by a number of significantly aggravating factors:

(a)   the offence involved actual and threatened violence;

(b)   the offence involved the use of weapons, being the iron bar and knife;

(c)   the applicant has a long record of previous convictions including crimes of personal violence;

(d)   the offence was committed in the victim's home;

(e)   the offence involved gratuitous cruelty;

(f)   the injuries caused by the offence were substantial;

(g)   the offence was committed while the offender was on conditional liberty in relation to offences in Victoria;

(h)   the victim was vulnerable in as much as he was asleep in his home when the applicant first approached him, and he was unarmed;

(i)   although only one offence was charged, it involved a series of criminal acts; and

(j)   the offence was committed for financial gain.

The applicant's subjective case

1. The applicant was born on 29th September 1954 and accordingly was 53 years and 7 months of age at the time of the offending. The primary judge found that he had a most unfortunate childhood. Both of his parents were alcoholics. His mother additionally suffered from mental illness and was violent towards him.

1. Rheumatic fever as a child led to deformity of his lower limbs which prevented him from walking until ten years of age. He had very little schooling, attending only between the ages of ten and thirteen years. Since then his employment history has been, as the sentencing judge put it, "sparse", involving unskilled work.

1. He was the victim of sexual abuse by an uncle from the ages of five to twelve years. He has been drinking alcohol since the age of ten and has abused it throughout his life. He is also an amphetamine user and according to his own account on the day of the offence he had used about 1.6 grams of amphetamine and had been drinking beer all day with friends. He told the psychiatrist, Dr. Furst (Exhibit 1), that he "was rushing off [his] head". The sentencing judge found that alcohol abuse and illicit drug use impeded the applicant's employment prospects, and contributed to his criminality, over the years.

1. Psychiatric evidence accepted by the primary judge was to the effect that, based upon psychological assessment, the applicant had a borderline intellect placing him in the lowest third percentile of the population, restricting his comprehension and capacity for logical and abstract reasoning. He suffered a degree of institutionalisation and an anti-social personality disorder manifesting itself in incidents of self-harm whilst institutionalised. He has an underlying dysfunctional personality.

1. During his most recent imprisonment in Victoria, the applicant had been employed manufacturing hot water heaters; had undertaken programs conducted through the Salvation Army; and had applied for the SMART Program, but it seems that he had not yet had the benefit of participation in the program by the time he was examined by Dr. Furst on the 15th of November 2010. According to an affidavit read on the hearing of this application, he has now undertaken that course in NSW. The sentencing judge seemed to accept that the offender required community based rehabilitation and psychiatric treatment. A pre-sentence report indicated that the applicant would benefit from a medium degree of supervision by the Probation and Parole Service. However, his Honour found that the applicant hoped to return to Victoria upon his release on parole.

1. The sentencing judge accepted the sincerity of the expressions of remorse contained in two letters the applicant wrote to the Court, forming Exhibit 2. Given the applicant's age and lengthy criminal history, his Honour was not able to conclude that he was not likely to re-offend in the future. For the same reasons, his Honour had no confidence in his rehabilitation prospects. They were fair only even if the applicant maintained his motivation to change his life, and abstained from alcohol and illicit drug use.

1. His Honour accepted that the applicant had pleaded guilty at the earliest available opportunity.

Reasons for sentence

1. The sentencing judge found the offence to be "objectively most serious". His Honour laid emphasis on the considerations of general and personal deterrence, and punishment. He referred to, as an aggravating feature, the fact that the offence was committed whilst the applicant was on conditional liberty.

1. He accepted that the offence was committed whilst the applicant was under the influence of alcohol and illicit drugs, and conventionally held that such a circumstance, whilst not mitigating, provided an explanation of "how the present offences came to be committed": R. v. Henry [1999] NSWCCA 111; 46 NSWLR 346 at 382 [178] per Spigelman CJ, at 396 [265] per Wood CJ at CL, at 409 [331] per Hulme J, and at 413 [348] - [349] per Simpson J.

1. At the outset of his reasons his Honour referred to the legislative guideposts of the maximum term of 25 years and the standard non-parole period of 7 years imprisonment. His Honour then discussed all the facts, matters and circumstances he considered relevant to sentencing before stating (at ROS 13-14):

In relation to the present offence a standard non parole period of seven years imprisonment is provided by the legislation. This applies for an offence falling within the middle range of objective seriousness for such an offence following conviction at trial. Following a plea of guilty the standard non parole period is nevertheless a reference point for sentencing purposes (see R. v. Way [2004] NSWCCA 131). While I am prepared to accept that the present offence was committed with little planning, it continued over a relatively lengthy period of time and involved the victim being tied up and on a number of occasions, the victim was physically attacked with a metal bar and at one stage with a sharp object resulting in the infliction of a number of injuries on the victim. I am satisfied that the present offence falls at the upper end of the middle range of objective seriousness for such offences.

I am not satisfied that any of the offender's subjective circumstances, including his intellectual limitations, whether considered individually or in combination, gives rise to any of the considerations referred to in R. v. Helmsley [2004] NSWCCA 228 at paras. 33 to 36.

1. His Honour then indicated that he allowed a 25 per cent discount for the utilitarian value of the early plea, confirmed that he was satisfied that the applicant's expressions of remorse were genuine, and "in order to reflect totality of criminality" backdated the sentence to 20th June 2009 to give effect to what he regarded as the need for partial accumulation. His Honour found special circumstances for the purpose of s.44(2) Crimes Sentencing (Procedure) Act 1999 (NSW), consisting of the applicant's institutionalisation, the need for extended supervision on parole, and the partial accumulation. He recorded his reasons for departing from the standard non-parole period.

The submissions of the parties

1. As I have said, Ms. C.T. Loukas SC, who appeared for the applicant, challenged the sentence passed on the applicant as being manifestly excessive. Ms. Loukas acknowledged the limitations of this ground of appeal by reference to Markarian v. The Queen [2005] HCA 25; 228 CLR 357 at 370 - 371 [27]; Wong v. The Queen [2001] HCA 64; 207 CLR 584 at 605 [58]; Hili v. The Queen [2010] HCA 45; 242 CLR 520 at 538 [59] - 539 [60]. To make good the ground, she argued that manifest injustice was demonstrated because the sentence imposed was outside the bounds of a sound discretionary range.

1. Acknowledging that consistency is not demonstrated by, and does not require, numerical equivalence, she relied upon a table of 23 cases which she argued demonstrated her main proposition. In particular she laid emphasis upon Henry v. R. [2007] NSWCCA 90 as being closely comparable. In that case, a 35 year old was re-sentenced by the Court of Criminal Appeal after a successful crown appeal to a non-parole period of 4 years and 6 months with an additional term of 2 years and 3 months. She argued that the similarities between the present offender and the offender in Henry, and their offences, required the imposition of a lighter sentence here.

1. The Crown Prosecutor, argued that the authorities referred to presented an insuperable barrier to the applicant in this case. He laid particular emphasis upon Director of Public Prosecutions (Cth) v. De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [303] - [305] per Simpson J, approved by the High Court in Hili at 537 [54]. The Crown said the Court could not be satisfied that a sentence other than that passed by the sentencing judge was warranted in law.

Decision

1. I accept the Crown's submissions that the outcome of the present appeal is governed by the dictum of Simpson J in De La Rosa at [303] - [305], which I set out in full:

A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts

But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: (citation omitted).

In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. Significant sentencing considerations include the role played by the offender in the particular importation or enterprise, the quantity of the drug involved, and its estimated street or wholesale value (having regard, inter alia, where relevant, to its purity). Also of considerable significance are the character andantecedents of the offender (s 16A(2)(m)). This last consideration bears upon the offender's prospects of rehabilitation, and also to any claim for leniency made on his or her behalf by reason of prior good character. (Emphasis added).

1. It needs to be borne in mind that this statement of principle, like those in Wong and Hili, were made in the exercise of federal jurisdiction. In the state jurisdiction, s.8 Judicial Officers Act 1986 (NSW) renders information, including reports, about sentencing disseminated by the Judicial Commission a relevant consideration to be taken into account in the interests of consistency. This statutory consideration may, therefore, extend the use which may be made of statistics and comparable sentences in the exercise of state jurisdiction. But strict limits remain. As Simpson J said in the extract above, sentencing is peculiarly individual: "It must be exercised by the individual judge, in respect of the individual offender". And, of course, in respect of the particular offending. As the High Court pointed out in Muldrock v. The Queen [2011] HCA 39; 244 CLR 120 at 132 [29], the sentencing task requires the 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

1. Moreover, as the plurality pointed out in Hili at 539 [60], "what reveals manifest excess", or inadequacy, of sentence is a consideration by the appellate court of all the matters that are relevant to fixing the sentence. The detection of manifest error is not "fundamentally intuitive".

1. I also bear in mind the basic rule stated in Lowndes v. The Queen [1999] HCA 29; 195 CLR 665 at 671 - 2 [15]:

...a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion.

1. I am unable to see that the helpful comparative information provided by the applicant demonstrates that the sentence passed on the applicant is plainly unjust. Necessarily, it is impossible for the Court to closely examine all of these cases in an attempt to distil a guiding principle, or guiding principles, in relation to this category of offence by which the appropriateness of the sentence passed may be measured. Given the fact sensitive nature of the sentencing task, even a close examination of the various sentences passed for offences falling into the same legal category, provided by a group of cases said to be comparable, can but rarely prove decisive. Naturally, when taken together, a group of cases said to be like will produce a numerical range; and sometimes this effect will be useful, even very useful. But the only true range, as Simpson J said, is the range fixed by Parliament. The principle of consistency calls for consistency of approach, not, as was said in Hili, numerical equivalence.

1. Having regard to all the facts, matters and circumstances that the sentencing judge considered appropriate to the individual sentencing task before him, as I have set out above, I cannot detect even latent error. A review of his reasons does not suggest that: the matters considered were not appropriate; other appropriate matters were overlooked; he was mistaken about the facts found; or that he made any error of principle. It may be that greater weight could have been given to the consideration of the applicant's lack of education, intellectual difficulties or personality dysfunction: Muldrock at 137 [50] - 139 [55]. This may have led to a diminution of the significance of the considerations of general deterrence and retribution which his Honour emphasised, but not necessarily: R. v. Engert (1995) 84 A Crim R 67 at 68 and 71. Moreover, such considerations, to the extent to which they suggest the applicant is dangerous, at least when drug and alcohol affected, may have brought the need for protection of society into sharper focus to the same overall effect: his Honour was unable to find that the applicant was unlikely to re-offend. Mere questions of weight, or emphasis, do not readily fit the House v. R [1936] HCA 40; 55 CLR 499 template. His Honour did refer to these considerations in his assessment of the facts, and also in the conclusions I have set out in full above ([32]). That I may have weighed them differently is not to the point.

1. I am not satisfied that the applicant's proposed ground of appeal has been made good. The sentence imposed was within the range reasonably open at first instance. I am not of the opinion that another sentence is warranted in law and should have been passed.

1. The orders I propose are:

(1)   Leave to appeal granted;

(2)   Appeal dismissed.

**********

Amendments

07 May 2013 - In the fifth sentence, the word "affect" changed to "effect".

Amended paragraphs: 45

Decision last updated: 07 May 2013