Ngatamariki v R

[2016] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Ngatamariki v R [2016] NSWCCA 155
Hearing dates:	26 July 2016
Date of orders:	09 August 2016
Decision date:	09 August 2016
Before:	Hoeben CJ at CL at [1] Hall J at [2] Bellew J at [3]
Decision:	(1)   Leave to appeal is granted. (2)   The appeal is dismissed.
Catchwords:	CRIMINAL LAW – Appeal – Sentence – Grievous bodily harm with intent – Assault by applicant upon his partner – Whether sentencing judge took into account the applicant’s prior conviction when assessing the objective seriousness of his offending – Whether sentence manifestly excessive – Brutal attack committed at a time when the applicant was affected by alcohol – No error on the part of the sentencing judge – Sentence not manifestly excessive   CRIMINAL LAW – Sentence – Use of sentences imposed in other cases to determine whether a sentence is manifestly excessive – Need to ensure consistency of application of sentencing principles as opposed to numerical equivalence of sentences
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 253 CLR 58 Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Briouzguine v R [2014] NSWCCA 264 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 MLP v R [2014] NSWCCA 183 Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 Newman v R [2015] NSWCCA 270 R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
Category:	Principal judgment
Parties:	George Michael Ngatamariki – Applicant Regina - Respondent
Representation:	Counsel: Ms J Painakulam – Applicant Ms S Dowling SC – Crown   Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions (NSW) – Crown
File Number(s):	2014/99078004
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Date of Decision: 28 August 2015 Before: Hanley SC DCJ

Judgment

1. HOEBEN CJ at CL: I agree with Bellew J.

2. HALL J: I agree with the orders proposed by Bellew J.

3. BELLEW J: On 21 May 2015 an indictment was presented against George Michael Ngatamariki (“the applicant”) in the District Court of NSW containing the following two counts:

“1. On or about 2 April 2014 at Ashford in the State of New South Wales caused grievous bodily harm to Deborah Lavender with intent to cause grievous bodily harm to Deborah Lavender.

2. On or about 2 April 2014 at Ashford in the State of New South Wales did cause grievous bodily harm to Deborah Lavender and was reckless as to causing actual bodily harm to Deborah Lavender”.

4. The applicant entered a plea of not guilty to the first count. His plea of guilty to the second (alternative) count was not accepted by the Crown in discharge of the indictment. Accordingly, the matter proceeded to trial before his Honour Judge Hanley SC and a jury. The jury subsequently returned a verdict of guilty in respect of count 1.

5. The offence in count 1 was contrary to s. 33(1)(b) of the Crimes Act 1900 (NSW). It carries a maximum penalty of 25 years imprisonment. A standard non-parole period of 7 years is prescribed.

6. On 28 August 2015 the applicant was sentenced to a non-parole period of 3 years imprisonment commencing on 2 April 2014 and expiring on 1 April 2017, with an additional term of imprisonment of 2 years commencing on 2 April 2017 and expiring 1 April 2019.

7. The applicant now seeks leave to appeal on the following grounds:

1. The sentencing judge erred by having regard to the applicant’s prior conviction in determining the objective seriousness of the offence.

2. The sentence passed on the applicant is manifestly excessive.

THE FACTS

8. In sentencing the applicant the sentencing judge found the facts to be as follows (ROS 3-8).

9. The applicant, who was born in the Cook Islands and came to Australia as a child, was in a relationship with the victim at the time of the offending and resided with her and their two children. On 1 April 2014 the victim accompanied her children to a day care centre, following which she went to work. The applicant travelled with the victim and waited for her until they collected the children, and picked up some hay for their horse. The hay was not capable of fitting into their car and accordingly they asked a friend, John Palmer, for assistance. The victim took the applicant to Mr Palmer’s house and went home with the children. After a period of time, not having heard from the applicant, the victim became concerned and drove back to Mr Palmer’s house where she discovered the applicant drinking. The applicant said to her:

“I’m just having a few drinks”.

10. The victim warned the applicant not to drink too much, and not to be too long in coming home.

11. Later that night the victim heard the applicant yelling from outside of their house. She then saw him mumbling and staggering. He could not walk in a straight line and he appeared to her to be drunk. The victim locked the applicant out of the premises and telephoned her sister. She told the applicant that she was going to call the police and he immediately left.

12. At about 9:30pm the victim’s cousin, Belinda Lavender, went to her mother’s home and saw the applicant there. She thought that he looked drunk and was unable to walk in a straight line. At that time the applicant shouted to Ms Lavender:

“She has called the police on me.”

13. In an attempt to placate the applicant, Ms Lavender said:

“George, let’s go over there and see what’s going on.”

14. Ms Lavender then drove the applicant to his home. Several times on the way, the applicant said:

“I’m going to kill her”.

15. Ms Lavender did not regard these threats as serious.

16. When they arrived at the applicant’s home (which, as previously noted, he shared with the victim) the victim told Ms Lavender that she did not want the applicant to be there. There followed a discussion about possible alternative places where the applicant could sleep. Eventually, Ms Lavender resolved to take the applicant to premises where a William Lavender, and his partner Sarah Krauss, lived. When they arrived at Mr Lavender’s premises the applicant fell over the front fence on the way up to the house. He appeared to be drunk but requested that Mr Lavender provide him with alcohol. That was refused.

17. Mr Lavender sat with the applicant for some time in the course of which the applicant said:

“She locked me out, the fucking bitch. I’m going to kill her”.

18. Mr Lavender formed the view that the applicant was well affected by alcohol. He apparently did not regard the applicant’s threats as serious. The applicant was left on a lounge and Mr Lavender went to bed. Sometime later Mr Lavender noticed that the front door of the premises was open and that the applicant had left.

19. At around 12:30am the following morning the victim was woken by knocking on the door of her premises. She heard a voice say:

“It’s George”.

20. The applicant was not yelling or screaming at that point and the victim decided to let him in. Having done so she told him to go to bed. Despite this, the applicant sat on the lounge and was mumbling:

“Why did you lock me out?”

21. The victim noticed that the applicant did not appear to be as drunk as he had appeared to be on the previous evening.

22. Having told the applicant to go to bed, the victim then noticed a light on at a computer in a room in the premises. She went into the room and found the applicant sitting at the computer. She again told him to go to bed. The applicant said that he wanted to go and see the children who were asleep at the time. The victim was not prepared to allow the applicant to do so as she was concerned that he would wake them.

23. The victim’s refusal to allow the applicant to see the children was found by the sentencing judge to have been the catalyst for what followed. Although the victim’s memory of the incident was not clear, it was evident that she suffered a number of injuries which were consistent with admissions made by the applicant when later interviewed by police.

24. Photographs tendered at the trial showed blood on the floor of the premises. The sentencing judge found that at some stage the applicant and the victim had ended up on the floor. The applicant was on top of the victim at one point. He had one hand around the victim’s throat. With his other hand, he punched her at least four times.

25. Around this time two nearby campers, Lawrence and Julie Somerton, heard shouting and screaming coming from the victim’s house. They also heard a man yelling out:

“I’m going to kill you, you fucking cunt”.

26. This was followed by what were described by the sentencing judge as “loud thudding noises”. Mr and Mrs Somerton called the police.

27. The victim found herself unable to move. She thought that the applicant was going to kill her and she began to cry. She had little memory of what had occurred leading up to that point in time, a fact found by the sentencing judge to be unsurprising in light of the injuries that she sustained.

28. The children then came out of the bedroom. This appeared to shock the applicant into some realisation of what had occurred. When he looked at the victim’s face the applicant said:

“Oh my God, you don’t look like you. Go and have a shower. You don’t look like you, I’m going to gaol.”

29. The victim went to the bathroom and observed her injuries. Her face was significantly swollen. Photographs tendered at the trial showed swelling of such magnitude that it was virtually impossible to recognise the victim as the person who was depicted in them.

30. As a result of (inter alia) the victim’s acknowledgement that she would not call the police, the applicant calmed down. The victim had in fact hidden her phone. She discreetly rang 000. The applicant, concerned about the gravity of what he had done and about the possibility that the police would intervene, was apparently reluctant to leave the victim alone. However he eventually agreed to allow her to call her sister. He apologised profusely saying:

“I love you. I don’t want to go to gaol. I’m so sorry.”

31. Police and ambulance officers arrived, at which time the applicant was cautioned. When asked what had occurred, he responded:

“I was having a few drinks with mates, I came home and ended up having a fight with the missus”.

32. The applicant was observed by police at that time to be unsteady on his feet and swaying. His eyes were bloodshot and glassy and he had blood on his left cheek.

33. The victim was taken to hospital where she was examined. There was no issue at the trial as to the extent of her injuries. Firstly, she suffered a comminuted fracture of the front and side walls of the maxillary antrum, meaning that the wall of the sinus base behind her cheek bone was fragmented into several pieces on the front and side walls. Secondly, she suffered a fracture of the right frontozygomatic suture or in other words, a fracture at the junction of the cheekbone and the skull. Thirdly, she suffered an undisplaced fracture of the right zygomatic arch or in other words, a fracture through the cheek bone. Fourthly, she suffered an undisplaced fracture of the lateral wall of the right orbit, i.e. a fracture of the bony casing of the right eye on the outside or lateral side. Fifthly, she suffered a comminuted fracture of the floor of the right orbit, which meant that the bony casing at the bottom of the right eyeball was fractured or splintered in numerous places.

34. The applicant participated in an interview with police. He asserted that he had consumed “four medium glasses of red wine” the night before. He said he had started drinking at 6:00pm and concluded at around 8:00pm. He agreed that he had beaten the victim with a clenched fist. When asked why he had done so, he told police that she had forced his anger and that he could not handle himself at the time, so he just punched her in the face.

35. There were marks around the applicant’s eyes and mouth which were consistent with attempted self-defence on the part of the victim. According to the applicant, he had pushed the victim’s hands away and kept punching her. He acknowledged that he punched her about four times, and that each of the blows was to her face. He agreed that they had ended up on the floor, but claimed that the victim had been abusive towards him. He said that he knew when he punched her he would cause her injury. He acknowledged that the punches that he threw were hard, and were inflicted in anger.

36. There was no issue at the trial that the injuries sustained to the victim constituted grievous bodily harm. There was also no issue that they had been sustained as a consequence of the applicant punching the victim. The sole issue was whether the applicant intended to cause the victim grievous bodily harm. That issue fell to be considered by the jury having regard to the degree of the applicant’s intoxication. It is evident from the verdict that the applicant’s case was rejected.

GROUND 1 – His Honour erred by having regard to the applicant’s prior conviction in determining the objective seriousness of the offence

The determination of the sentencing judge

37. On 17 March 2011 the applicant appeared at the Inverell Local Court in respect of a charge of assault occasioning actual bodily harm which had occurred on 27 October 2010. That offending involved the same victim. He was convicted, fined $1000.00, and ordered to enter into a bond pursuant to s. 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) for a period of 2 years. There were a number of conditions attaching to that bond, including that the applicant not consume alcohol or illicit drugs, and that he not enter any licensed premises within NSW.

38. The applicant’s criminal history detailing that offence was before the sentencing judge who (commencing at ROS 9) turned to an assessment of the objective seriousness of the applicant’s offending. He said:

“In respect of this case, the matters that I consider are appropriate in determining the seriousness of the offence is firstly the relationship between the parties; they were in a domestic relationship. It is clear that there had been at least on one prior occasion a violent assault upon the victim by the accused. Whilst that had only resulted in actual bodily harm to her, it was sufficient for him to be charged and subjected to supervision by way of a bond. It is also significant in the context of the circumstances leading up to this offence that on that occasion alcohol had been involved.”

39. Having made reference to a number of other factors, the sentencing judge concluded (at ROS 10) that the applicant’s offending fell “just below the mid-range of objective seriousness”. He then made a number of observations about the applicant’s moral culpability before returning to consider aggravating factors. At that point he said (at ROS 13):

“As I have already mentioned the offender has a prior conviction for domestic violence towards the same victim. That is a fact I will take into account as something that diminishes his entitlement to leniency and indicates a sentence should include a greater element of specific deterrence.

In relation to that prior conviction I note it was in 2010 and he was supervised on a two-year s 9 good behaviour bond. There was a case plan that focused on addressing his alcohol abuse and the violent aspect of the offence. He completed an anger management program and alcohol and other drug counselling.”

Submissions of the applicant

40. Counsel for the applicant accepted that in light of the provisions of s. 21A(1)(d) of the Sentencing Act it was appropriate for the sentencing judge to have regard to the applicant’s prior conviction as an aggravating factor in the terms in which he stated in the passage set out at [39] above.

41. However, it was submitted that when the sentencing remarks were read as a whole, and having regard to the terms of the passage set out at [38] above, it was clear that the sentencing judge had also taken into account the applicant’s previous conviction when assessing the objective seriousness of the offending. It was submitted that by approaching the matter in that way, the sentencing judge had acted contrary to the requirement that punishment must be proportional to the offence.

Submissions of the Crown

42. The Crown submitted that the reference by the sentencing judge to the earlier offence in the passage set out at [38] above should be construed as a reference to part of the context in which the present offence occurred, namely an offence committed within a relationship marred by domestic violence including violence that had earlier been prosecuted.

43. The Crown submitted that on a fair reading of the sentencing remarks as a whole there could be no suggestion that the sentencing judge had used the fact of the applicant’s previous conviction to improperly aggravate the objective gravity of the offence.

Consideration

44. The principle of proportionality requires that the upper boundary of a proportionate sentence be set by the objective circumstances of the offence: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465; Baumer v R [1988] HCA 67; (1988) 166 CLR 51. Those objective circumstances do not encompass an offender’s prior convictions: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [24] per Spigelman CJ; at [81] per Barr and Bell JJ.

45. True it is that his Honour’s reference to the applicant’s prior conviction in the passage set out in [38] above was made following a reference to determining the seriousness of the offending. However, when the remarks are read as a whole, it is apparent that his Honour was doing no more than taking into account the domestic relationship which existed between the applicant and the victim as a factor which was relevant to determining the objective seriousness of the offending. That was both unremarkable and entirely appropriate. It was in that specific context that his Honour made reference to the applicant’s previous conviction. Viewed in that way, it is apparent that his Honour did not err by using the applicant’s prior conviction as a factor which aggravated the seriousness of his offending.

46. I am fortified in that view by the terms of what his Honour said in the passage set out at [39] above where it was made plain that the applicant’s prior conviction was a factor which would be taken into account as something that diminished the applicant’s entitlement to leniency, thus justifying greater weight being afforded to specific deterrence. Nothing said by his Honour in the passage set out at [39] suggests, even remotely, that the applicant’s prior conviction had already been taken into account in some way. Indeed, the express language used by his Honour was very much to the contrary.

47. For these reasons, ground 1 is not made out.

GROUND 2 – The sentence passed on the applicant is manifestly excessive

48. The written submissions filed on behalf of the applicant were prepared by counsel who did not ultimately appear before this Court on the hearing of the appeal. However, counsel who did appear expressly adopted them. Those submissions contended that this Court should “consider sentences for offences against s. 33(1)(a) for comparative purposes in the applicant’s case.” The submissions proceeded to make reference to the sentences imposed in a series of other cases. It was submitted that in view of those sentences, and having regard to a number of other factors, this Court would conclude that the sentence imposed was manifestly excessive.

49. The additional factors upon which reliance was placed were that:

1. the offence was found by the sentencing judge to be below the mid-range of objective seriousness;

2. the offence was not planned;

3. although the applicant had punched the victim on multiple occasions, the assault was not a sustained or pre-meditated attack;

1. although the injuries sustained by the victim were serious, the offending was not within the worst possible category and did not result in any permanent injury;

2. the offending did not involve the use of a weapon;

3. the applicant had expressed genuine remorse; and

4. the applicant had good prospects of rehabilitation.

50. Counsel appearing before this Court expanded upon those various factors in oral argument. In doing so, she submitted that the applicant was a person of limited cognitive functioning and that his offending should be assessed in that light. In that regard, counsel relied, in particular, on the contents of a psychological report which was before the sentencing judge which, under the heading “Assessment”, stated (inter alia) the following:

“The results of the WRAT/4 indicated that Mr Ngatamariki’s reading abilities were in the Average Range. Mr Ngatamariki’s results varied between scales. His reading and spelling fell within the average range. However, comprehension and maths fell within the low average range. During test administration, it was observed that Mr Ngatamariki had significant difficulty with comprehension tasks. He demonstrated patience with each item and appeared to give his best effort, however he was unable to complete the tasks to the same level as reading and spelling. Given the variation in the scales, a WASI-II was administered.”

51. The reference to the “WASI-II” was a reference to the Wechsler Abbreviated Scale of Intelligence (Second Edition) which is a standardised and abbreviated measure of intellectual functioning. The results of that testing were reported as follows:

“Results indicated that Mr Ngatamariki’s general level of intellectual functioning was in the Borderline Range. These results indicate that approximately 93% of the general population is functioning at a higher level than Mr Ngatamariki.”

52. The report concluded (inter alia):

“Although Mr Ngatamariki’s overall cognitive functioning falls in the Borderline Range, his verbal comprehension skills are significantly low. This may be particularly relevant to his interpersonal relationships where Mr Ngatamariki may demonstrate some difficulty verbalising and comprehending various issues.”

53. Counsel for the applicant submitted that this evidence placed the applicant’s offending in a particular category. It was submitted that in light of the conclusions expressed in the report, the applicant’s conduct was to be viewed as the product of “his frustration at his inability to negotiate conflict situations due to his inherent cognitive difficulties”. Counsel submitted that it was necessary to have particular regard to these matters, so as to ensure that individualised justice, appropriate to the circumstances of the appellant’s circumstances, was imposed: R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [88] per Johnson J (Hunt AJA and Latham J agreeing).

54. Finally, it was submitted that although the applicant had a record for not dissimilar offending, he was not to be regarded as a “repeat offender” for the purposes of sentence.

Submissions of the Crown

55. The Crown submitted that the applicant’s reliance, in the written submissions, upon sentences imposed in other cases reflected an incorrect approach and, in any event, was of no utility. The Crown pointed out that offending of this nature necessarily covers a broad range of circumstances and that in determining an appropriate sentence, it had been necessary for the sentencing judge to take into account all of the circumstances including:

1. the degree of violence;

2. the ferocity of the attack;

3. the apparent lack of any provocation; and

4. the relationship between the offender and the victim.

56. The Crown submitted that the cases upon which the applicant sought to rely for comparative purposes demonstrated the wide range of offending in matters of this nature. It was further submitted that reference to those cases demonstrated the presence of various distinguishing factors. It was submitted that in those circumstances, the sentences imposed in those cases did not support a conclusion that the sentence imposed upon the applicant was manifestly excessive.

57. The Crown also pointed to the considerable violence involved in the applicant’s assault. It was submitted that deterrence, both general and specific, were important factors, as was the protection of the community. In a more general sense, it was submitted that recognition of the harm done to the victim and the community as a result of offences of domestic violence was important.

58. In terms of the applicant’s reliance upon the psychological report, the Crown emphasised that following the passages upon which counsel for the applicant had relied, the following appeared:

‘It should be noted that English is Mr Ngatamariki’s second language. Consequently, the results from this cognitive assessment must be interpreted with caution”.

59. The Crown submitted that in these circumstances, the report did not support the submissions advanced on behalf of the applicant regarding his cognitive functioning.

60. Ultimately, the Crown submitted that when consideration was given to the multiple objectives of sentencing, and the absence of a strong subjective case, the sentence was not manifestly excessive. This, it was submitted, was particularly so when the sentence was considered by reference to the maximum penalty and standard non-parole period which had been prescribed by the Parliament.

Consideration

61. The written submissions filed on behalf of the applicant effectively invited this Court to engage in an exercise comparing sentences imposed on other cases with that imposed on the applicant. In support of that approach, the written submissions cited the observations of Fagan J (with whom Macfarlan JA and Adams J agreed) in Newman v R [2015] NSWCCA 270 where his Honour said (at [19]):

“The circumstances which give rise to the offence of wounding with intent to cause grievous bodily harm vary widely and the range of culpability for the offence is vast. Whilst recognising that sentences passed in other more or less comparable cases cannot be treated as confining the sentencing discretion within boundaries different from those laid down by Parliament (Hili v The Queen (2010) 242 CLR 520 at [54]), some consideration of sentences imposed on other occasions is essential if consistency is to be achieved.”

62. His Honour’s observation should not, in my view, be interpreted as an endorsement of the course that the written submissions urged this Court to follow. What his Honour said in the passage extracted above must be read in the context of what he said immediately thereafter (at [20]-[24]):

“[20] In order to take into account, at all, a sentence passed upon a different offender for an offence against the same section but arising out of unrelated circumstances, regard must be had to all of the factors which the sentencing court had before it on that other occasion. That is, the objective circumstances of the commission of the offence, whether sentence was passed following a plea of guilty or after a trial, the antecedents and personal attributes of the offender, whether a standard non-parole period was applicable and so on. In Wong v The Queen (2001) 207 CLR 584 at [59], Gaudron, Gummow and Hayne JJ held:

“[59] Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass a sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.” (Emphasis in original).

[21] That passage has equal application when this Court is considering whether a sentence passed at first instance was manifestly excessive. Wong v The Queen (supra) was concerned with sentencing for offences against Commonwealth laws but the passage quoted is concerned with sentencing principles generally and is not founded upon anything peculiar to Commonwealth criminal law.

[22] Also in Wong v The Queen (supra) Gleeson CJ said:

“[6] … All discretionary decision making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.”

[23] The requirement of reasonable consistency, to be sought by consideration of all features of comparable cases, was reiterated in Hili v The Queen (supra), in the judgment of the plurality. After quoting the above passage from the judgment of Gleeson CJ their Honours said:

“[53] Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. … Care must be taken, however, in using what has been done in other cases.

[54] In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303]-[305], Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘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 the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘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’. When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned’.”

[24] These principles were reiterated in Green v The Queen (2011) 244 CLR 462, a case concerning sentencing under the Drug Misuse and Trafficking Act 1985 (NSW). At [28] and [29] French CJ, Crennan and Kiefel JJ referred to both Wong v The Queen (supra) and Hili v The Queen (supra) in support of the requirements of “systematic fairness” and “reasonable consistency” in sentencing, applying “to persons charged with similar offences arising out of unrelated events” as well as to the punishment of co-offenders under the parity principle.

63. In Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 253 CLR 58 the plurality (French CJ, Hayne, Kiefel and Bell JJ) stated (at [40]-[41]):

[40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

[41] As the plurality pointed out in Hili, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the “raw material” which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.

64. These principles have been consistently applied in this Court: MLP v R [2014] NSWCCA 183 at [41]-[44]; Briouzguine v R [2014] NSWCCA 264 at [76].

65. Even accepting the proposition that consideration of sentences imposed on other occasions is essential if consistency is to be achieved, the written submissions of the applicant did not approach the matter on that basis. Rather, they sought to establish, essentially by reliance upon the sentences imposed in the cases cited, that the sentence imposed upon the applicant was manifestly excessive. In other words, the reliance on those cases was really based upon a suggested need to achieve numerical equivalence of the kind to which their Honours referred in Barbaro (supra). That reflects an incorrect approach. Moreover, and unsurprisingly, those cases expose, to varying degrees, fundamental differences in the circumstances of the offending, and/or the circumstances of the offender, when compared to the present case.

66. Bearing in mind that what is sought is consistency in the application of relevant legal principles, as opposed to numerical equivalence, the applicant’s reliance on those cases does not demonstrate that the sentence imposed was manifestly excessive. Nothing in terms of the outcome of any of those cases suggests, in any way, that the sentencing judge in the present case applied relevant sentencing principles in a way which was not consistent with some established sentencing pattern.

67. The sentencing judge considered the various subjective factors relied upon by the applicant. Having done so, he found that:

1. the offending was not planned;

2. the applicant was remorseful;

3. his admissions at the trial were of utilitarian benefit to the community as a consequence of the fact that the trial was shortened and there was an alleviation of the necessity to call expert medical evidence; and

4. he had good prospects for not reoffending and for succeeding in his rehabilitation.

68. No complaint is made about any of those findings and it is not suggested that the sentencing judge overlooked, or gave insufficient weight to, any aspect of the applicant’s subjective case.

69. I am unable to accept the submissions advanced by counsel based upon the psychological report which was before the sentencing judge. As the Crown pointed out, the conclusions expressed in that report were subject to an important qualification.

70. I am also unable to accept counsel’s submission that the applicant’s offending should be viewed as a manifestation of his “inability to negotiate conflict situations”. Leaving aside the fact that such a submission was based upon the qualified conclusion expressed in the report, the sentencing judge found that the catalyst for the applicant’s attack was the victim’s indication that she did not wish the applicant to disturb the children. The sentencing judge did not find that any conflict whatsoever emanated from the victim. Whilst a “conflict situation” certainly arose thereafter, it was one created by the applicant himself. In other words, the applicant was the instigator of the conflict, not the respondent to it.

71. The applicant’s offending was extremely serious. He was responsible for a brutal and violent attack perpetrated upon an innocent, and largely defenceless, victim. The ferocity of the applicant’s attack is best gauged by the fact that the victim suffered no less than five separate facial fractures. Any sentence required a strong measure of general deterrence. Personal deterrence was also a relevant consideration in light of the applicant’s previous conviction. Further, the applicant’s subjective circumstances, which were generally unremarkable, were clearly taken into account by the sentencing judge.

72. The sentencing judge also properly took into account the fact that the offending took place in the context of a domestic relationship. In Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 the majority (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) observed (at [55]):

[55] … A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.

73. Even though the offending in that case was different to (and more serious than) that of the applicant, the Court’s reference to the denunciation of, and punishment for, “brutal” and “alcohol-fuelled” conduct is particularly apt in a case such as the present.

74. Even accepting that the section under which the applicant was charged covers a range of offending, the maximum penalty and the standard non-parole period provide important guide posts to the determination of an appropriate sentence. It is not without significance that the head sentence imposed upon the applicant is two years less than the standard non-parole period prescribed for the offence. That is not, in any way, determinative. However, it is a factor which tends against the proposition that the sentence is manifestly excessive. This is particularly so in circumstances where the applicant went to trial, and where his offending was aggravated by not dissimilar behaviour, towards the same victim, on a previous occasion.

75. In order to make out a complaint of manifest excess, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321; Markarian v R [2005] HCA 25; (2005) 228 CLR 357. For the reasons I have given, none of the submissions advanced on behalf of the applicant establish that the sentence imposed falls into such a category. Indeed, for my part, having regard to all of the circumstances, the sentence is one that might be regarded as modest.

76. For all of these reasons this ground is not made out.

ORDERS

77. For the reasons expressed I propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

**********

Amendments

10 August 2016 - No amendment

Decision last updated: 10 August 2016