Maxwell v R

[2007] NSWCCA 304

Reported Decision: 177 A Crin R 498

New South Wales

Court of Criminal Appeal

CITATION:	Maxwell v R [2007] NSWCCA 304
HEARING DATE(S):	24/10/2007
JUDGMENT DATE:	30 October 2007
JUDGMENT OF:	Handley AJA at 1; Howie J at 2; Price J at 33
DECISION:	1. The application for leave to appeal is granted and the appeal allowed. 2. The sentence imposed in the District Court is quashed. 3. In lieu the applicant is sentenced to a term of imprisonment comprised of a non-parole period of 2 years 6 months to date from 4 January 2006 and to expire on 3 July 2008. There is to be a balance of term of 1 year 6 months.
CATCHWORDS:	Criminal Law - Sentencing - application of standard non-parole period after plea of guilty - whether used as starting point rather than reference point - relevance of criminal record - applicant resentenced.
LEGISLATION CITED:	Crimes Act 1900 - ss 21A, 105A, 112(2)
CASES CITED:	R v Stambolis [2006] NSWCCA 56 R v AJP [2004] NSWCCA 434 R v McNaughton (2006) 66 NSWLR 566 Mulato v R [2006] NSWCCA 282 R v Way (2004) 60 NSWLR 168 Reaburn v R [2007] NSWCCA 60 R v Sanagalang[2005] NSWCCA 171 Marshall v R [2007] NSWCCA 24
PARTIES:	Dallas Aaron Maxwell v Regina
FILE NUMBER(S):	CCA 2007/00003215
COUNSEL:	M. Barr - Crown H. Cox - Applicant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/1059
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	13/12/2006

2007/00003215

HANDLEY AJA
HOWIE J
PRICE J

TUESDAY 30 OCTOBER 2007

Dallas Aaron MAXWELL v REGINA

Judgment

1 HANDLEY AJA: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant pleaded guilty on indictment to an offence of break and enter a dwelling house and commit a serious indictable offence, namely stealing, in circumstances of aggravation, being that he maliciously inflicted actual bodily harm on the victim. This is an offence contrary to s 112(2) of the Crimes Act and carries a maximum penalty of imprisonment for 20 years. There is a prescribed standard non-parole period of 5 years. The applicant also asked that a matter be taken into account on a Form 1, being an offence of assault.

3 On 13 December 2006 Judge Hughes (the Judge) sentenced the applicant to a term of imprisonment made up of a non-parole period of 3 years and 4 months with a balance of term of 1 year and 8 months. The sentence was to commence on 4 January 2006 and the applicant is eligible for release to parole on 3 May 2009.

4 The grounds of appeal relied upon are as follows:

1. His Honour erred in his approach to s 54B Crimes (Sentencing Procedure) Act 1999.

2. His Honour impermissibly confined his sentencing discretion.

3. The sentence imposed is manifestly excessive.

5 The facts can be briefly stated and are derived from an agreed statement placed before the Judge. There was an ongoing domestic dispute between the applicant’s friend, Mr Rogan, and a young lady, Ms Wilson, with whom Rogan had been in a relationship, about custody of their children. On 22 December 2005 she was visiting the home of the victim, a man named Norton, and another man named Mackenzie. The applicant and Rogan attended the premises to speak with Ms Wilson and eventually Norton summoned the police and the applicant and his companion left the premises.

6 At about 8 pm that evening the applicant forced his way into the premises through the backdoor. He had in his hand a stubby beer bottle. He threw it at Norton striking him in the head. He then assaulted Norton punching him about the head. He attacked Mackenzie who was able to block most of the punches. The assault on Mackenzie gave rise to the matter on the Form 1. The applicant told them both not to interfere with Dominique who was the daughter of Wilson and Rogan, but neither Norton nor Mackenzie understood what he was talking about.

7 Norton took hold of his mobile phone and fled upstairs from where he called police. On his way from the premises the applicant took $100 that was lying in the kitchen. He threatened that they should not call the police or else bikers would come to the premises and shoot them both. Norton received minor injuries for which he was treated at a hospital. On 1 January 2006 Norton and Mackenzie heard noises outside the backdoor and the voice of the applicant. The glass in the backdoor was shattered. The applicant was later arrested in hospital recovering from an injury caused by breaking the glass. He was interviewed on 4 January 2006 but denied the assaults.

8 The applicant was aged 33 years at the time of offences. He has a lengthy criminal history commencing in the Children’s Court in 1991. His first offence of violence that year resulted in him being placed on a good behaviour bond. There have since that time been recorded against him convictions for offences of dishonesty, traffic offences, assaults, breaching apprehended violence orders and offences against the police. He was first sentenced to imprisonment in 1993 and has received a number of gaol sentences since that time chiefly for offence of violence. He was sentenced to imprisonment in 2000 for an offence of break, enter and steal. He was granted the benefit of a suspended sentence in 2003 but breached the terms of the bond and was imprisoned. In 2004 he was sentenced to a term of imprisonment for assault and breached his parole on release. On 18 March 2005 he was placed on a bond for contravening a domestic violence order. The offence for which he was sentenced was in breach of that bond. He has a long history of offences against prison discipline.

9 There was in evidence a report from a psychologist, Mr Taylor. There is little in the applicant’s history set out in that report of relevance. He had a good relationship with his father who died when the applicant was aged 5 years. He did not get on with his stepfather who was abusive to the applicant and his siblings. He left school at the age of 15 and had been expelled once for fighting. He left home at the age of 18 years. He has worked as a labourer and stable hand but usually finds short-term unskilled employment.

10 He told the psychiatrist that he did not consider that he had a problem with alcohol but has been addicted to amphetamine since the age of 17 and occasionally uses heroin. He has never sought treatment for his drug use. He explained his criminal record by his poor impulse control. He felt that his greatest risk factors involved anger, drug abuse and inadequate impulse control. Because of a prior escape he has an E classification in gaol that apparently limits the availability of rehabilitative courses. He said that he wished to seek assistance with anger management and drug relapse prevention on his release.

11 He explained the offence on the basis that he was trying to help his friend Rogan. He said that he was moderately affected by alcohol and committed the offence as a result of “seeing my best mate being mucked around by those dickheads”.

12 The psychologist found that the applicant has a “personality disorder with some antisocial and aggressive characteristics”. He also had a substance abuse disorder. He has low self-esteem and a poor self-image. He was assessed as having a moderate degree of recidivism. The psychologist noted that gaol did not “represent significant deterrence for him” and that any further custodial sentence “is not likely to do anything to assist his rehabilitation”. He thought that the applicant would benefit from an ex–inmate programme such as that in which Mr Taylor was involved.

13 The Judge recognised that there were a number of aggravating features listed under s 105A of the Crimes Act present in the offending apart from that which was expressly relied upon by the Crown in the statement of the charge. The applicant knew that a person was present in the house: that was his whole purpose for being there. He was also armed with an offensive weapon, the beer bottle. For some reason that I do not understand perhaps because of transcription difficulties, the Judge disregarded the fact that the applicant engaged in corporal violence because of the allegation that he inflicted actual bodily harm. But the fact that the applicant used corporal violence against the victim is a distinct aggravating circumstance from the fact that actual bodily harm was caused to the victim. There was no reason in principle why it should not also have been taken into account when determining the seriousness of the applicant’s conduct.

14 The Judge indicated that the offence was a serious one and noted that a standard non-parole period was relevant notwithstanding that the applicant had pleaded guilty to the offence. He quoted from R v Stambolis [2006] NSWCCA 56 at [17] and what was said by Simpson J in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 as to the use of the standard non-parole period in such a case as a guidepost or reference point in determining the appropriate sentence to be imposed.

15 The Judge concluded that the matter was one that “falls squarely into the median range as required by s 4 (sic) and hence I have to consider the non-parole period of five years”.

16 Surprisingly, notwithstanding that he found that the applicant had “an appalling record of violence” the Judge used this finding only by declining to grant him any leniency. The Judge’s reasoning does not explain why he reached that conclusion in rejecting a Crown’s submission to the effect that it was an aggravating factor. With respect that was an unreasonable finding to make in light of the applicant’s long history of violence, breach of court orders, and the fact that he was on a good behaviour bond at the time of this offence, a matter to which no reference is made in the sentencing remarks. It was planned criminal conduct and the whole purpose of the applicant breaking into the victim’s house was to assault him and the other resident. The stealing of the money was an after-thought. This was a clear case where the applicant’s criminal record should have been treated as an aggravating factor under s 21A(2)(d) in accordance with R v McNaughton (2006) 66 NSWLR 566. This was an error in the applicant’s favour but it is a matter to be considered if this Court should have to decide whether any lesser sentence is warranted and what that sentence should be.

17 With respect much of the Judge’s reasons are difficult to understand. The sentencing remarks were apparently given ex tempore and there seems to have been some difficulty transcribing them. There does not appear to have been any attempt to correct them and, therefore, some of his Honour’s reasoning is not as transparent or as comprehensible as it might have been. Notwithstanding that the Judge apparently determined that the applicant’s record did not warrant a longer sentence for the purposes of specific deterrence or denunciation, he found that the protection of the community was an important factor given the propensity of the applicant to violence. These are findings that are difficult to reconcile.

18 The Judge found that the evidence of the psychologist presented a “glimmer of optimism”. As a result he was prepared to find special circumstances. That was a very favourable finding for the applicant. The result was a non-parole period that was two-thirds of the overall term of the sentence.

19 The first ground of appeal concerns the manner in which the Judge approached the standard non-parole period. As has already been noted, the Judge apparently found that the sentence was midrange in objective seriousness, and so he believed he had to consider “a non-parole period of 5 years”. However when he came to consider the sentence with more precision he stated:

“…..A non parole period of five years- that in effect, if one uses the usual ration (sic), means a head sentence of eighty months. However, I am not satisfied that given what I said (sic), I think it falls on the low side of the middle range and I am prepared to cut down the eighty months to six years which is seventy two months. For the seventy two months I prepared (sic) to roughly deduct fifteen per cent for his plea of guilty, which leaves it at sixty months as a head sentence”

20 A number of criticisms can be made of this passage. Firstly there is no basis upon which the Judge could have justified a discount of 15 per cent for a plea of guilty forthcoming on the day of the trial. No reason is given for choosing that figure. Applying the guideline an appropriate discount was no more than 10 per cent. Further there is an apparent discrepancy in the Judge’s assessment of where the objective seriousness of the offence fell within the range of offending covered by the section. He earlier decided that it fell “squarely into the median range” by which I take it he meant that it was midrange. Yet later he determined that it fell “on the low side of the midrange”.

21 But the major difficulty with the passage is the manner in which the Judge applied the standard non-parole period. It has been stated on more than one occasion in this Court that it is not appropriate to use the standard non-parole period as a starting point to which discounts are added or from which they are subtracted: see Mulato v R [2006] NSWCCA 282 where Spigelman CJ, with whom Simpson J agreed, stated:

[13] It is now well established that it is an error of principle to select a specific figure — whether that be a maximum sentence or a standard non parole period or a ‘subliminally derived figure’ (see Markarian [(2005) 79 ALJR 1048] at [39]) — and to add or subtract matters item by item in some sort of mathematical process. The reason that this approach constitutes legal error is because it impermissibly confines the sentencing discretion. Indeed, the use of the maximum sentence in such a manner was precisely the error identified by the High Court in Markarian.

22 Later, after referring generally to R v Way (2004) 60 NSWLR 168, the Chief Justice stated:

[17] In Way, the Court concluded:

[131] What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of the seriousness, and irrespective of whether the offender’s guilt was established after a trial or by a plea), at the standard non- parole period, and than to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act.

[18] This reasoning rejects the use of the standard non-parole period as a “starting point” or fulcrum for a mathematical process. Even where the offence attracts a standard non-parole period, because it is in the middle of the range of objective seriousness, error occurs whenever the standard non-parole is used as a “starting point” rather than as a “reference point”. (See R v Sangalang [2005] NSWCCA 171 esp at [19]–[24]; R v Hung Lo [2005] NSWCCA 436 at 159 A Crim R 71 esp at [64]–[71].) The description in AT supra at [36] of the maximum sentence as “a more appropriate start point“ should not be understood as indicating a different view.

23 A similar error in applying the standard non-parole period was identified in Reaburn v R [2007] NSWCCA 60.

24 The approach adopted by the Judge in this case was almost identical to that adopted by the judge in R v Sanagalang referred to in the passage quoted above from Mulato. In Sangalang the judge determined the sentence by starting with the standard non-parole period, deducted 20 per cent for the fact that the offence was less than midrange in seriousness and then further deducted a discount for the plea of guilty. The error identified was that the Judge used the standard non-parole period as a starting point rather than as a reference point.

25 In the present case the Judge determined what the head sentence referable to the standard non-parole period would be, deducted from it a period representing the degree to which the offence was lower than midrange and from that result deducted the discount for the plea of guilty. By approaching the sentencing exercise in this way he misused the standard non-parole period and his discretion miscarried.

26 The problem of applying the standard non-parole provisions in relation to a s 112(2) offence has been recognised by this Court: see Marshall v R [2007] NSWCCA 24. The difficulty is derived firstly from the fact that the standard non-parole period specified is 5 years imprisonment as against a maximum sentence of 20 years and, secondly, by the breadth of the range of offences that may fall within the scope of the section. One of the relevant matters referred to in Marshall for determining where the objective seriousness of the offence lies is the number of aggravating features present. As has been noted, there were a number of such features present in this case including, in my view, that the applicant used corporal violence against the victim. There was also to be taken into account the matter on the Form 1 that incorporated an act of violence against Mackenzie.

27 The aggravating factors set out in s 21A, additional to those falling within s 105A, were the applicant’s criminal record and the fact that he was on conditional liberty. The only mitigating factor of any significance was his plea of guilty. There was in my opinion little prospect of the applicant’s rehabilitation and nothing in the psychologist’s report to suggest otherwise.

28 Notwithstanding the number of aggravating factors, in my opinion the offence was significantly below midrange of objective seriousness having regard to all the circumstances of the offence including the injury actually occasioned to the victim, the type of offensive weapon and the use made of it, and the nature of the violence generally. It should be noted that the serious indictable offence charged was larceny and it was of itself of very minor criminality notwithstanding the other aggravating factors. It was simply the taking of $100 from where it lay as the offender was leaving the premises. As I have already noted it was very much an afterthought. However the offence is further aggravated in the manner in which I have mentioned by the personal circumstances of the offender. I would continue the finding of special circumstances even though had I been sentencing the applicant at first instance I would not have made such a finding.

29 Ms Cox for the applicant has placed much weight on statistical information as to the sentences imposed for this type of offence. It is pointed out that only 10 per cent of persons sentenced for such an offence received a term of six years or more, the starting sentence chosen by his Honour. Only 15 per cent received head sentences of 5 years,

30 One of the problems with statistics in cases where the standard non-parole period applies is that they tend to suggest that the standard non-parole period is being largely disregarded. If an offence is within midrange of seriousness and there is no reason to reduce the standard non-parole period, then the appropriate sentence is the standard non-parole period whatever the sentencing statistics might reveal. In respect of an offence where the maximum penalty is 20 years and the standard non-parole period is 5 years, it is surprising that so few persons have received a head sentence exceeding the standard non-parole period. The statistics tend to suggest that the sentences imposed for this offence do not fully take into account either the maximum penalty or the standard non-parole period. These are offences that generally involve the breach of the security of a person’s home in circumstances where there is a real likelihood of injury occurring, or where injury in fact does occur, to the householder. They are offences that generally require condign punishment. This is not borne out by the statistics.

31 There has been an affidavit filed by the applicant on the basis that this Court might be required to resentence him. It indicates that the applicant has been attending such programmes as are available to him including courses addressing anger management and relapse prevention. He is in employment in the prison. He believes that he is progressing in controlling his anger and is intending to participate in the course conducted by Mr Taylor when he is released.

32 In my opinion an appropriate starting sentence before the application of a discount for the guilty plea is 4 years 6 months. A discount of 10 per cent results in a sentence of about 4 years. In my view that is the appropriate head sentence for this offence after a plea of guilty on the trial date. A finding of special circumstances should result in a non-parole period of 2 years 6 months. That is in my opinion the least minimum period that the applicant should serve for the protection of the community before being considered for release to parole. The standard non-parole period has been reduced by reason of the plea of guilty, the fact that the offence is less than midrange in seriousness and the finding of special circumstances.

33 I propose the following orders:

1. The application for leave to appeal is granted and the appeal allowed.

2, The sentence imposed in the District Court is quashed.

3. In lieu the applicant is sentenced to a term of imprisonment comprised of a non-parole period of 2 years 6 months to date from 4 January 2006 and to expire on 3 July 2008. There is to be a balance of term of 1 year 6 months.

34 PRICE J: I agree with Howie J.

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