Henry v The Queen
[2019] ACTCA 5
•28 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Henry v The Queen |
Citation: | [2019] ACTCA 5 |
Hearing Date: | 06 November 2018 |
DecisionDate: | 28 February 2019 |
Before: | Burns, Loukas-Karlsson and Charlesworth JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – manifest excess – whether non-parole period manifestly excessive |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 7 Crimes (Sentencing Procedure) Act 1999 (NSW) s 44 Sentencing Act 1995 (WA) s 93 |
Cases Cited: | Afiouny v The Queen [2017] NSWCCA 23 Barrett v The Queen [2016] ACTCA 38 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | Mark Peter Henry (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr J Stewart (Appellant) Mr J Hiscox (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 10 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 27 February 2018 Case Title: R v Henry Citation: [2018] ACTSC 34 |
THE COURT
Introduction
Mark Peter Henry (the appellant) appealed against sentences imposed by Elkaim J (the sentencing judge) on 27 February 2018: see R v Henry [2018] ACTSC 34 (Henry).
The sentencing judge made the following orders in respect of the appellant:
(a)In respect of the offence of recklessly inflict grievous bodily harm (XO 2017/31260), the offender is sentenced to 18 months’ imprisonment commencing on 24 February 2018 and ending on 23 August 2019.
(b)I set a Non-Parole Period of 15 months commencing on 24 February 2018 and ending on 23 May 2019.
The sentence reflected a discount of 20% for the plea of guilty: Henry at [4].
The non-parole period is 83.33% (or five-sixths) of the total head sentence of 18 months of imprisonment.
Grounds of Appeal
At the hearing of the appeal, the appellant was granted leave to file an amended notice of appeal in court. That amended notice of appeal contained the following ground of appeal:
(a)The non-parole period is manifestly excessive in all of the circumstances.
The orders sought are that:
(b)The appeal be upheld;
(c)The conviction be confirmed; and
(d)The appellant be resentenced.
Facts
The appellant pleaded guilty on 29 November 2017 to an offence of recklessly inflicting grievous bodily harm. The sentencing judge summarised the facts of the matter as follows at [5]-[6] of Henry:
5.…It is sufficient to observe that, after consuming a large amount of alcohol, the offender struck the victim with a sword, causing very serious injuries. The sword belonged to another person who had been in an argument with the victim earlier that day. The offender was not involved in that argument and had no reason to become involved.
6.The offence was not premeditated, in the sense that there had not been any degree of planning. It did, however, involve the deliberate taking of the sword and a deliberate swinging of the sword “directly at [the victim]”.
The victim suffered extensive injuries, and were summarised by the sentencing judge as follows at [8]-[9] of Henry:
8.The injuries suffered by the victim are detailed in a medical report from a Dr Van Dieman, dated 21 July 2017. The injuries are extensive. They include the severing of the jugular vein and a major neck muscle. The victim also suffered a fracture to a vertebra in his neck and a compression fracture in his thoracic spine. The medical report provides a technical explanation of the injuries.
9.Equally significant is the Victim Impact Statement that was read out by the victim. In this statement, the victim discusses his disfigurement, disabilities, the limitations on his movement and the effect the offence has had on his social and financial life. The injuries have essentially dominated every aspect of his daily life, and will probably continue to do so for the rest of his life…
Sentencing remarks
The sentencing judge considered the offence to be “objectively serious” given the “nature and the extent of the injuries”.
10. In relation to the offender’s subjective matters, the sentencing judge noted at the outset that the offender is an “alcoholic”, and that “[a]lcohol…is responsible for his appearance before the Court today. It is also probably a key factor in his previous offending”. The sentencing judge noted that past rehabilitation attempts had been unsuccessful, and that the offender would be able to “pursue rehabilitation in prison or after serving his sentence”.
11. The sentencing judge further noted the offender’s history of mental health issues, in particular his diagnosis with a Post-Traumatic Stress Disorder. The sentencing judge considered that this diagnosis “may or may not have been a factor in his offending”, and that “[i]f it was, it was not to an extent that entitles the offender to any leniency.”
12. The sentencing judge noted that there were “indications of remorse on the offender’s part”, and noted that “offender’s criminal record, by its contents, has not had any effect on my decision”.
13. The sentencing judge did not make any specific remarks regarding the length of the non-parole period imposed.
The Appeal
14. The appellant submitted that the non-parole period was manifestly excessive, given that the “usual percentage range” was between 50 and 75% of the head sentence in the ACT. That range being “usual” was conceded by the respondent. The “usual” range of 50-75% has been noted in a number of Court of Appeal decisions: see Zdravkovic v The Queen [2016] ACTCA 53 at [74]; Barrett v The Queen [2016] ACTCA 38 at [52]; Taylor v the Queen [2014] ACTCA 9 (Taylor) at [20].
Approach of other Australian states and territories
15. The appellant referred to the different approaches of the states and territories in Australia. In New South Wales, s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows for a minimum 75% or three quarters of the head sentence to be fixed as a non-parole period, unless there are special circumstances to increase the parole period to more than one quarter of the head sentence.
16. In Victoria, the Victorian Court of Appeal has stated that the usual range for non-parole periods is between 60-75% of the head sentence: Kumova v The Queen [2012] VSCA 212; 37 VR 538 (Kumova).
17. In Queensland, where a prisoner is sentenced to less than three years of imprisonment, the court is required to fix a date for the offender to be released on parole: Penalties and Sentences Act 1992 (Qld) s 160B(3). There is no legislated proportion of the non-parole period.
18. In Western Australia, s 93 of the Sentencing Act 1995 (WA) provides that a prisoner is eligible to be released on parole after serving half of the term of imprisonment if the term is 4 years or less. If the term of imprisonment is more than 4 years, the prisoner is eligible for parole when the prisoner has served two years less than the total term.
19. In South Australia, there is no mandatory sentencing ratio. The South Australian Court of Criminal Appeal has noted that non-parole periods have “tended to range between 50% and 75% of the head sentence”: R v Devries [2018] SASCFC 101 at [19].
20. In Tasmania, s 17 of the Sentencing Act 1997 (Tas) permits the Court to set a parole eligibility period of no less than one-half of the period of sentence.
21. In the Northern Territory, s 53 of the Sentencing Act 1995 (NT) requires that a non-parole period be set for any person sentenced to a term of life imprisonment, or for a term of 12 months of imprisonment or longer. Section 54 of the Sentencing Act (NT) allows for a non-parole period of not less than 50% of the period of imprisonment to be imposed, but sets the minimum non-parole period at 8 months.
Appellant’s Submissions
22. The appellant submitted that a non-parole period being outside the range of 50-75%, though not necessarily indicating error in and of itself, calls for scrutiny as to why such a departure has taken place. The appellant submitted that nothing in this case, either from the sentencing judge’s remarks or from the factual considerations of the matter, indicates that the departure was warranted.
23. The appellant referred to the Victorian authority of Kumova, where Nettle JA (Redlich and Osborn JJA agreeing) at [6] cited the following passage of Redlich JA in R v Detenamo [2007] VSCA 160 at [26]:
A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period. However, where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given, and an absence of reference to the sort of factors mentioned by Callaway JA in R v VZ invites appellate scrutiny and may reflect error…
24. The relevant passage by Callaway JA in R v VZ [1998] VSCA 32; 7 VR 693 is at [15]:
I put to one side cases where a non-parole period is inappropriate. In other cases, it is apparent from the authorities to which I have just referred that a non-parole period cannot be fixed unthinkingly by some such method as taking two years, or one third or one quarter, off the head sentence. All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element: see, for example, Bugmy v. R. at p.538 and R. v. Chan (1994) 76 A.Crim.R. 252 at p.255. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period: see, for example, Power v. R. at p.628 and Director of Public Prosecutions v. Bulfin (unreported, Court of Appeal, 17th April 1998). The third, which requires no citation of authority, is that a prisoner's prospects of rehabilitation are almost always a significant consideration. The present offences called for condign punishment and general deterrence was a relevant sentencing objective, but it was common ground, and his Honour found, that the applicant was unlikely to offend again. He added that no question of specific deterrence arose for consideration. The offences had first come to light in 1981 but the evidence at that stage was insufficient to warrant a prosecution. That may explain why the applicant had not re-offended but it did not detract objectively from his prospects of rehabilitation. Assuming that a head sentence of eight years' imprisonment was appropriate, I consider that a non-parole period of six-and-a-half years was manifestly excessive in all the circumstances of this case.
25. It is to be inferred from the appellant’s reference to this case that the appellant seeks the Court to consider, in the absence of specific reasons from the sentencing judge, whether there are any factors which support the departure from the “usual” range, and where there is not, the departure ought to be considered to be “manifestly excessive”.
26. At the hearing, the appellant specifically pointed to one purpose of parole periods, being the successful release back into the community to support rehabilitation. In the case of the appellant, counsel conceded that alcohol was a significant factor in the commission of the offences. The appellant submitted that:
Prospects of rehabilitation often cause short non-parole periods so that someone can have a longer time subject to parole so that they can properly rehabilitate and assimilate back into the community.
27. The appellant submitted that the sentencing judge’s consideration of the appellant’s rehabilitation needs should not have lead “to an outcome that because alcohol is the driving factor, that there should be a higher than usual non-parole period”.
28. The appellant submitted that the purpose of setting a non-parole period is “to reflect the minimum proportion of the head sentence that must be served in order to achieve the purposes of the head sentence”: Power v The Queen (1974) 131 CLR 623 (Power).
29. Ultimately, the appellant submitted that the non-parole period was “so far out of the ordinary range of one-half to three quarters that the Court should intervene”: House v The King (1936) 55 CLR 499 at 504-505.
Consideration
30. A claim of manifest excess calls into question what is quintessentially a discretionary decision: Lowndes v The Queen [1999] HCA 2; 195 CLR 665.
31. The applicable principles were summarised in Dalton v The Queen [2015] ACTCA 48 at [18]:
The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:
· Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).
· The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323 at [61].
· In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principles: Melham at [85].
· It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at 309 [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].
32. See also Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 (Monfries) at [20]-[23]; Singh v The Queen [2015] ACTCA 65 at [54]-[60]; Jovanovic v The Queen [2015] ACTCA 29 at [41]-[44].
Non-Parole Periods
33. With respect to non-parole periods, in Taylor this Court (Murrell CJ with Refshauge and Penfold JJ agreeing) confirmed the proper approach to fixing a non-parole period, including that it is the minimum period of imprisonment that justice requires to be served, at [18]-[19]:
18.Part 5.2 of the Sentencing Act concerns the fixing of non-parole periods but leaves the assessment of an appropriate length of non-parole period to the sentencing judge.
19.The proper approach to fixing a non-parole period is well established and can be summarised as follows.
1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2.An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3.The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4.Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton vThe Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed:
... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
34. In Heard v The Queen [2015] ACTCA 6, this Court (Murrell CJ, Penfold and Ross JJ) emphasised at [51] that non-parole periods are not assessed mathematically by reference to a norm or usual ratio to the head sentence. The Court also emphasised that an offender’s prospects of rehabilitation will be given significant weight in the determination of a non-parole period:
What constitutes an appropriate relationship between the head sentence and the non-parole period depends on the circumstances of the particular case. Non-parole periods are not assessed mathematically by reference to some norm or usual ratio to the head sentence. In fixing a non-parole period, a sentencing judge takes into account all of the considerations which are relevant to the setting of the head sentence, but the weight attached to these factors and the way in which they are relevant will differ. Generally speaking, an offender’s prospects of rehabilitation will be given significant weight in the determination of a non-parole period.
35. In Martin v The Queen; Martin v The Queen [2015] ACTCA 38 (Refshauge, Burns and Ross JJ) this Court, after extensive recitation of principles espoused in Power and Bugmy v The Queen (1990) 169 CLR 525, underlined at [97] that a complaint that a ratio of 78% was higher than in other cases is in and of itself not particularly meaningful:
It follows from the above that the identification of the ratio of the non-parole period to the total sentence does not determine the appropriateness of the non-parole period. The appellant’s complaint that the ratio in his case, nearly 78 per cent, was higher than in other cases is, by itself, not particularly meaningful. In Conway, the ratio was 75 per cent and in Hillier it was set at 72 per cent, so that the ratio in the appellant’s case is not markedly different. The offenders in Conway and Hillier both had no prior convictions recorded against them, whereas the appellant has a lengthy criminal history and has been imprisoned on numerous occasions. At the time he commenced planning to rob the deceased, he was in prison. When he robbed and murdered him, the appellant was on parole. The appellant started offending when he was 14 years old. In 1996, he was sentenced in this Court to five years imprisonment with three years non-parole for armed robbery. In the 17 years since that sentence was imposed the appellant has spent only 7 years out of prison and has never successfully completed a period of parole since he was released on parole in 1999. In the period from 1999 to the date of sentencing, his parole had been revoked seven times. The trial judge was entitled to be pessimistic about the appellant’s prospects of rehabilitation. More importantly, the trial judge was entitled to consider that the non-parole period which he set was appropriate to adequately punish the appellant for this murder, and to act as a deterrent to him committing further serious crimes.
36. In Millard v The Queen [2016] ACTCA 14 (Millard) this Court referred at [65]-[66] to the Victorian decision of R v Bernath (1997) 1 VR 271 (Bernath), and the principles there set out and emphasised that it is not simply looking at the mathematical relationship between the head sentence and the non-parole period:
65.As has been said by appellate courts, such as in R v Bernath [1997] 1 VR 271 at 278, it is helpful to the court on appeal if a sentencing court articulates the reasons for setting a nonparole period, or at least for setting an unusual nonparole period. Indeed, in Director of Public Prosecutions (Vic) v Josefski (2005) 158 A Crim R 185 at 194-5; [43], Callaway JA, with whom Maxwell P agreed, set out relevant principles for the procedure of fixing a nonparole period in a series of propositions as follows:
(1)When a sentencing judge decides to fix a non-parole period that is unusual, reasons for taking that course should ordinarily be given.
(2) A non-parole period may be unusual by comparison with other cases or having regard to the facts of the instant case or the course of the plea. Those examples are not exhaustive.
(3) Where a non-parole period is unusual, a failure to give reasons does not inevitably betoken error but it invites appellate scrutiny.
(4) The purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner’s rehabilitation through conditional freedom.
(5) The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question when the prisoner should be eligible for release.
(6) The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case.
(7) It follows from (5) and (6) that a non-parole period cannot be fixed mechanically by some such method as taking two years, or one-third or one-quarter, off the head sentence.
(8) All the relevant factors have to be taken into account. They are many and varied, but they include —
(a) that a non-parole period has a penal element;
(b)that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c)that the prisoner’s prospects of rehabilitation are almost always a significant consideration.
See also R v Flowers [2014] ACTCA 13 at [2]-[6], [54]-[55], [73]-[74].
66.It is clearly not a case of looking simply at the mathematical relationship between the head sentence and the nonparole period.
37. Most recently, in R v Toumo’ua [2017] ACTCA 9 (Murrell CJ, Rangiah J and Walmsley AJ), this court referred to Afiouny v The Queen [2017] NSWCCA 23 at [46]–[47] and emphasised that the deterrent and punitive effects of a sentence should be reflected both in the head sentence and in the minimum term and that the need for rehabilitation had to be balanced against the requirement that the sentence be of a severity appropriate in the individual case.
Consideration of Head Sentence
38. The sentencing judge identified the factors which informed the objective seriousness of the offence. The sentencing judge considered that the predominant objective factor in this sentencing exercise was the seriousness of the attack, and the extent of the resultant injuries. The sentencing judge correctly identified this as an objectively serious offence (at [9]). A significant sentence of imprisonment was appropriate in this case.
39. The sentencing judge considered the subjective considerations and matters in mitigation, including the plea of guilty. The sentencing judge considered rehabilitation.
40. The sentencing judge arrived at a starting point of 22.5 months of imprisonment, reduced to 18 months on account of the plea of guilty. In our view, this is not a manifestly excessive sentence but a lenient sentence in the circumstances of this case.
Consideration of non-parole period
41. The appellant’s submission is based on a mathematical relationship with the head sentence. The appellant relies on a ‘usual range’ to establish manifest excess.
42. That a ‘usual range’ may be identifiable does not of itself indicate error in imposing a non-parole period that falls outside such a range.
43. Consonant with Millard and Bernath, when a sentencing judge decides to fix a non-parole period that is “unusual”, reasons should ordinarily be given. A failure to give reasons may invite appellate scrutiny.
44. As emphasised in Sampson v The Queen [2018] ACTCA 67 at [53] it is well established that arguments of manifest excess do not allow for much elaboration: “[a] sentence is either manifestly excessive or it is not”.
45. There is not one correct sentence: see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]. Given the breadth of the sentencing discretion, where a judge imposes a lenient head sentence, the appropriate minimum term or non-parole period to be served by way of full time detention may be “proportionally longer” than an equally appropriate sentence with a longer head sentence. Manifest excess is not thereby established in relation to the non-parole period.
46. The reasons of the sentencing judge do not expressly articulate why the non-parole period was fixed outside the “usual range” of non-parole periods fixed in the ACT, if expressed as a proportion of the head sentence. The absence of express reasons does invite appellate scrutiny.
47. However, the sentencing judge correctly determined that general and specific deterrence were important in this case. Additionally, the sentencing judge considered prospects of rehabilitation and the offender’s alcohol consumption (Henry at [11]). The seriousness of the attack on the victim, and the injuries that he suffered, dominated his Honour’s decision (Henry at [14]).
48. This Court does not intervene to conduct the sentencing itself, and will intervene only where there is error. It was recently stated by Hulme J (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed) in Obeid v R [2017] NSWCCA 221; 96 NSWLR 155 at [443] that:
·Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
·It is not to the point that this Court might have exercised the sentencing discretion differently.
·There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
·It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
49. In our view, the non-parole period of 15 months imprisonment cannot be said to be manifestly excessive. As earlier observed at [37], the deterrent and punitive effect of a sentence should be reflected both in the head sentence and the non-parole period. The non-parole period is fairly explained by the dominance the sentencing judge placed on the seriousness of the attack and its life-long effects on the victim. It was open to the sentencing judge to conclude that a non-parole period of 15 months was the minimum period that justice required be served. It is not to the point that the sentencing discretion might have been exercised differently.
Conclusion
50. Manifest excess has not been demonstrated in relation to the non-parole period. No error is made out by the appellant.
Order
51. The appeal is dismissed.
| I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for judgment of the Court. Associate: Date: 28 February 2019 |
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