Neal v The Queen

[2008] NSWCCA 212

New South Wales
Court of Criminal Appeal

CITATION:	Neal v R [2008] NSWCCA 212
HEARING DATE(S):	8 September 2008
JUDGMENT DATE:	8 September 2008
JUDGMENT OF:	Allsop P at 36; Johnson J at 37; Price J at 1
EX TEMPORE JUDGMENT DATE:	8 September 2008
DECISION:	(i) Leave to appeal granted. (ii) Appeal dismissed
CATCHWORDS:	Criminal law - sentencing - break, enter and commit serious indictable offence contrary to s 112(1) Crimes Act 1900 - pursuit of domestic partner - attack on partners father - sentence not manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 s 112(1), s 112(2), s 562ZG(1), s 59(1),
CATEGORY:	Principal judgment
CASES CITED:	Markarian v The Queen (2005) 79 ALJR 1048 Marshall v R [2007] NSWCCA 24 R v Edigarov (2001) 125 A Crim R 551 R v McNaughton [2006] NSWCCA 242 Regina v Fernando [2002] NSWCCA 28
PARTIES:	Robert Walter Neal Regina
FILE NUMBER(S):	CCA 2007/3713
COUNSEL:	Mr T Gartelmann (Applicant) Mr P Ingram (Respondent)
SOLICITORS:	Steve O'Connor (Legal aid Commission) S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/31/1018
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	3 August 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Neal

2007/3713

ALLSOP P
JOHNSON J
PRICE J

8 September 2008

Neal v R

EX TEMPORE Judgment

1 PRICE J: The applicant, Robert Walter Neal, seeks leave to appeal against the severity of the sentence imposed in the District Court on 3 August 2007 for the offence of break, enter and commit serious indictable offence, namely assault occasioning actual bodily harm.

2 The offence being contrary to s 112(1) of the Crimes Act 1900 is punishable by imprisonment for 14 years. A standard non-parole period has not been prescribed for this offence.

3 Pleas of guilty had been entered by the applicant in the Local Court to three charges which he adhered to in the District Court. The first charge was that he on 31 August 2006 at Ettalong Beach assaulted and occasioned actual bodily harm to Ms Amara Roberts contrary to s 59(1) of the Crimes Act. The maximum penalty for the offence is 5 years imprisonment.

4 The second charge was that he on 31 August 2006 at Ettalong Beach, broke and entered the dwelling house of David Roberts and therein committed a serious indictable offence, namely that he assaulted David Roberts and occasioned actual bodily harm to him. It is the sentence imposed for this offence which is the subject of the present appeal.

5 The third charge was that on 27 September 2006 at Ettalong Beach the applicant sent a letter and other documents intending to persuade Ms Roberts, who was then a person to be called as a witness in judicial proceedings, to withhold true evidence contrary to s 323 of the Crimes Act. The maximum penalty for this offence is 7 years imprisonment.

6 An offence contrary to s 562ZG(1) of the Crimes Act, namely a contravention of an apprehended violence order made in favour of Ms Roberts, was included on a Form 1.

7 The Judge sentenced the applicant as follows:

On charge 1 (taking into account the offence on the Form 1) to imprisonment for a term of 2 years 3 months consisting of a non-parole period of 1 year 8 months commencing on 31 August 2006 and expiring on 30 April 2008 with a balance of term of 7 months commencing on 1 May 2008 and expiring on 30 November 2008.
On charge 2 to imprisonment for a term of 4 years 6 months consisting of a non-parole period of 3 years 4 months commencing on 1 March 2007 and expiring on 30 June 2010 with a balance of term of 1 year 2 months commencing on 1 July 2010 and expiring on 31 August 2011.
On charge 3 to imprisonment for a term of 2 years 3 months consisting of a non-parole period of 9 months commencing on 1 June 2010 and expiring on 28 February 2011 with a balance of term of 1 year 6 months commencing on 1 March 2011 and expiring on 31 August 2012.

8 As a result of partial accumulation, the total effective sentence was 6 years commencing on 31 August 2006 and expiring on 31 August 2012 with a non-parole period of 4 years 6 months commencing on 31 August 2006 and expiring on 28 February 2011.

9 The Judge had allowed a 25 per cent utilitarian discount for the pleas of guilty.

10 The sole ground of appeal is that the sentence for charge 2 was manifestly excessive.

11 An agreed statement of facts was tendered during the proceedings on sentence which the Judge summarised as follows (ROS at [16]):

“At about 1am on 31 August 2006 the offender arrived at the home at where he lived with Ms Roberts and their two children. He was affected by the intoxicating liquor that he had consumed. An argument between Ms Roberts and the offender developed. After abusing her, the offender attacked her, putting her on the ground and placing his hands around her throat. Ms Roberts struggled against the offender’s hold and scratched his face. The offender released his hold on Ms Roberts’ throat but put his arm across her chest pinning her to the floor. The family dog intervened and, when the offender punched at the dog, he released his hold on Ms Roberts and she was able to stand up. Ms Roberts went into the kitchen and used the telephone to ring triple 0. When the offender attempted to take the handset from her, Ms Roberts threw the handset at him and ran out from the kitchen to her father’s home, which was at the rear of her home.”

12 These were the facts in respect of charge one. His Honour then characterised that offence as falling above the middle of the range of seriousness for offences of its kind.

13 His Honour then continued:

“After she entered her father’s home Ms Roberts used his telephone to ring triple 0 and they waited for police. After a few minutes, they heard banging on the home’s front door and then the screen door being pulled away from its mountings. The offender entered Mr Robert’s home and attacked him, pulling his hair, punching him and pushing him onto the floor.”

14 The statement of facts reveals that Ms Roberts attempted to stand between the applicant and her father in an effort to stop the assault. The applicant then left the home and went out to the front yard when the police arrived. Mr Roberts was a 60 year old man who suffered from a heart condition. He was taken to hospital for observation due to this heart condition. He complained of soreness to the side of his face and was suffering from dizziness. He later noticed the loss of hair from where it had been pulled.

15 These are the facts in respect of charge two which is the charge the subject of this appeal.

16 The Judge characterised the offence as falling below the middle of the range of seriousness for offences of its kind.

17 The Judge summarised the facts of charge 3 by recounting that the applicant sent a letter and accompanying documents to Ms Roberts intending to persuade her to withhold from giving true evidence in the proceedings against him.

18 The applicant was born on 29 April 1973 and was 33 years old at the time of the offending. He had a record of previous convictions including offences relating to violence, breaches of apprehended violence orders, possession and use of prohibited drugs. He had previously served sentences of imprisonment. On 11 February 1999, in the District Court at Queanbeyan, the applicant was sentenced to a term of imprisonment of 15 months with a minimum term of 6 months and an additional term of 9 months for malicious wounding. At Cooma Local Court on 9 December 1998, he had been sentenced to a fixed term of imprisonment of 4 months for a contravention of an apprehended domestic violence order. On 11 March 2003, in the Cessnock Local Court, for the charge of assault occasioning actual bodily harm he was placed on a 3 year good behaviour bond which was subject to probation and parole supervision.

19 On 3 June 2005 the applicant was charged with an offence of common assault the victim of the offence being Ms Roberts.

20 On 17 August 2005 for that offence, he was ordered to perform 200 hours community service. An apprehended violence order had been made to protect Ms Roberts which was in force at the time of the offences on 31 August 2006. The applicant was also on bail for an offence of assault occasioning actual bodily harm with which he had been charged on 27 March 2005. On 15 January 2007 he was sentenced for that offence to imprisonment for 12 months with a non-parole period of 9 months to date from 31 August 2006. He was also re-sentenced on that day for the charge of assault, the community service order being revoked and sentence of 6 months imprisonment to date from 31 August 2006 being imposed. The sentences imposed by the Judge subsumed these sentences.

21 The applicant gave evidence during the proceedings on sentence. A report from Anna Robilliard, a psychologist, a Probation and Parole pre-sentence report, a letter from the Salvation Army’s Bridge Program and various certificates as to his achievements whilst in custody were tendered. Also tendered was a letter written by the applicant to the Judge.

22 The applicant does not suggest that his Honour’s characterisation of the offence as falling below the middle of the range of seriousness was inappropriate. What is submitted is that the sentence actually imposed in respect of the offence fails to reflect that evaluation and the sentence is, in all the circumstances, manifestly excessive. What was said by Howie J in Marshall v R [2007] NSWCCA 24 at [37]-[39] as to factors relevant to determining the seriousness of an offence contrary to s 112(2) of the Crimes Act was cited. It is contended that although as a general proposition, it may be that offences involving residential premises would be regarded as more serious than those involving other kinds of premises, in the circumstances of the applicant’s case that might be considered to be less relevant given that the premises concerned adjoined each other and the occupants of the respective premises were related to one another.

23 Furthermore, it is argued that the damage to the premises was confined to the screen door and the degree of bodily harm does not indicate a serious instance of assault occasioning actual bodily harm. The fact that the offence of assault occasioning actual bodily harm attracts a maximum penalty of five years is said to be relevant, although not a determinative consideration.

24 The undiscounted starting point of the sentence was 6 years imprisonment.

25 At the time of the offences, the applicant was in a de facto relationship with Ms Roberts. They resided together with their two daughters aged two and three in the premises at Ettalong. After being assaulted by the applicant, Ms Roberts had escaped to her father’s home which adjoined the premises in which the applicant and Ms Roberts lived. The applicant had pursued her to the home in which she had sought sanctuary and pulled away the screen door from its mountings. He then entered the home and attacked Ms Robert’s father. As the Judge remarked (ROS at [23]):

“The first [offence] involved a vicious attack upon a defenceless woman in her own home. The second involved an equally vicious attack upon a defenceless elderly man in his own home ” (italics added).

26 Offences for violent attacks in domestic settings, this Court has emphasised, must be treated with real seriousness. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community: see, for example, R v Edigarov (2001) 125 A Crim R 551.

27 There is no good reason, in my opinion, why those principles should not apply to an offender who in pursuit of his domestic partner has broken into her father’s home and then assaulted him. The victim was a 60 year old man with a heart condition. The applicant’s conduct was violent, cowardly and inexcusable. The lack of significant damage to the home or significant actual injury occasioned to the victim, to my mind, does little to diminish the seriousness of the offence.

28 At the time of the commission of the offences the applicant was on bail for the offence of assault occasioning actual bodily harm. The commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: see, for example, Regina v Fernando [2002] NSWCCA 28 at [40]-[42].

29 The applicant’s criminal history included serious offences involving violence. As the Judge remarked “it is obvious and fair to say that he has learnt nothing whatsoever from his earlier offending and from the penalties imposed upon him for those offences.” Having regard to the applicant’s criminal history, the Judge was entitled to give more weight to considerations of retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist: R v McNaughton [2006] NSWCCA 242. It was important that the applicant clearly understood that he could not continue his violent offending.

30 The maximum penalty of 14 years imprisonment was not irrelevant to his Honour’s sentencing task. It is the maximum penalty which has been legislated by Parliament. Whilst the maximum penalty for the offence of assault occasioning actual bodily harm of 5 years imprisonment is not an irrelevant consideration, the maximum penalty of 14 years for an offence contrary to s 112(1) of the Crimes Act serves as a yardstick or a basis of comparison between the case before the Court and the worst possible case: Markarian v The Queen (2005) 79 ALJR 1048 at [31].

31 Judicial Commission sentencing statistics have been included in the written submissions. The assistance provided by these statistics is limited largely because sentencing is an individual exercise. In the present case, it is to be borne in mind as a result of partial accumulation of the sentence for charge one, the effective non-parole period for charge two was significantly less than 3 years 4 months. It was, in fact, 2 years 2 months.

32 It is evident that the Judge gave careful consideration to the subjective case advanced on behalf of the applicant.

33 I do not think that the sentence for the offence of break and commit serious indictable offence, namely assault occasioning actual bodily harm was manifestly excessive.

34 Another issue arose during the appeal. It was pointed out by the Crown that the offence on the Form 1 should have been taken into account on charge two and the Judge did not do so. It is clear that the Judge took the offence on the Form 1 into account in the sentence imposed for charge one when it should have been taken into account on charge two. In view of the orders I propose it is unnecessary to consider this issue.

35 I propose that leave to appeal be granted but the appeal be dismissed.

36 ALLSOP P: I agree with Price J.

37 JOHNSON J: I agree with Price J.

38 ALLSOP P: The orders of the Court will be as proposed by Justice Price.

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