Peninton v The Queen; Dunningham v The Queen
[2008] NSWCCA 221
•26 September 2008
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Peninton v R; Dunningham v R [2008] NSWCCA 221
FILE NUMBER(S):
2007/3114
2007/3105
HEARING DATE(S):
19 August 2008
JUDGMENT DATE:
26 September 2008
PARTIES:
Lisa Michelle Peninton v R
Stephen John Dunningham v R
JUDGMENT OF:
McClellan CJ at CL Hislop J Hoeben J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
06/31/0148
LOWER COURT JUDICIAL OFFICER:
O'Connor DCJ
LOWER COURT DATE OF DECISION:
9 July 2007
COUNSEL:
In person (Peninton)
In person (Dunningham)
L. Wells (Crown)
SOLICITORS:
Self represented (Peninton)
Self represented (Dunningham)
Solicitor for Public Prosecutions (Crown)
CATCHWORDS:
LEGISLATION CITED:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Criminal Appeal Act, 1912
CASES CITED:
R v Mungomery (2004) 151 A Crim R 376
R v Elmir [2003] NSWCCA 192
R v Knight [2004] NSWCCA 145
Lowe v The Queen (1984) 154 CLR 606
Postiglione v R (1997) 189 CLR 295
R v Bragias (1997) 92 A Crim R 330
R v Simpson (2001) 53 NSWLR 704
TEXTS CITED:
DECISION:
Leave to appeal granted; appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2007/3114
2007/3105McCLELLAN CJ at CL
HISLOP J
HOEBEN JFriday 26 September 2008
LISA MICHELLE PENINTON v R
STEPHEN JOHN DUNNINGHAM v R
Judgment
McCLELLAN CJ at CL: I agree with Hislop J.
HISLOP J: The applicants were each charged on indictment on the following counts:
Count 1Knowing there was a person inside, did enter a dwelling house with intent to commit a serious indictable offence, namely assault occasioning actual bodily harm in breach of the Crimes Act, 1900, s 111(2). The maximum penalty for this offence is 14 years imprisonment.
Count 2Did assault [the female victim], thereby occasioning actual bodily harm, in breach of the Crimes Act, 1900, s 59(1). The maximum penalty for this offence is imprisonment for 5 years.
Each applicant pleaded not guilty to those charges.
Mr Dunningham was additionally charged with:
Count 3Maliciously wound [the male victim] in breach of the Crimes Act, 1900, s 35(1)(a) (now repealed). The maximum penalty for this offence was seven years imprisonment.
Count 4Assault [the female victim’s child] in breach of the Crimes Act¸1900, s 61.
Mr Dunningham pleaded not guilty to the additional counts.
Ms Peninton was convicted on counts 1 and 2. Mr Dunningham was convicted on counts 1-3 but was found not guilty on count 4.
On 9 July 2007 Ms Peninton was sentenced as follows:
Count 1Non parole period of 2 years imprisonment commencing on 21 December 2006 and expiring on 20 December 2008 with a further term of 18 months to commence from the expiration of the non parole period and expire on 20 June 2010.
Count 2Imprisonment for 12 months to date from 21 December 2006 and expire on 20 December 2007.
On the same day Mr Dunningham was sentenced by the same judge as follows:
Count 1Non parole period of 2 years imprisonment commencing on 2 April 2007 and expiring on 1 April 2009 together with a further period of 18 months to commence upon the expiration of the non parole period and expire on 1 October 2010.
Count 2Imprisonment for 6 months to date from 2 April 2007 and expire on 1 October 2007.
Count 3Imprisonment for 18 months to date from 2 April 2007 and expire on 1 October 2008.
The variation in the commencing dates of the sentences imposed on each applicant was due to differing periods of pre sentence custody.
The effective overall sentence for each of the applicants was a non parole period of two years imprisonment with a further term of 18 months commencing upon the expiration of the non parole period.
The applicants have sought leave to appeal against sentence. Four of the proposed grounds of appeal are the same for each applicant. They are as follows:
“(a)His Honour erred when he sentenced outside the range for this offence;
(b)His Honour erred when he failed to take into account or sufficiently take into account specific aspects of my case;
(c)His Honour erred making findings of fact not supported by evidence;
(d)The sentence is manifestly excessive.”
Mr Dunningham relies upon an additional proposed ground of appeal which asserts:
“The judge erred when he sentenced both accused to same sentence”
The facts, as found by his Honour, were briefly as follows. Ms Peninton (born 1974) and Mr Dunningham (born 1955) lived in a de facto relationship in a house across the road from the female victim. The female victim lived in the house with her five year old son. On the date of the offences the male victim was visiting her home. He was aged 58 and had a disability in that one of his legs was withered, a legacy of polio. The applicants were affected by alcohol.
At about 3.00 am on 2 November 2005 there was heavy knocking on the door to the female victim’s home. The male victim opened the door. He was asked by Mr Dunningham who he was. He gave his name. The male victim asked Mr Dunningham to identify himself. Mr Dunningham then commenced punching the male victim, knocking him to the ground. He continued to assault the male victim, dragging him through the house. The photographic evidence depicts a blood trail into the living room. The male victim’s injuries consisted of severe bruising to his face and a laceration which required suturing. He was treated in hospital overnight. He did not sustain any permanent injuries.
Ms Peninton also entered the house at this time. She went to the bedroom where the female victim was sleeping. The female victim was awakened by Ms Peninton, who was kneeling on her bed, head butting her nose. The female victim said she was struck a minimum of six times. During this assault she heard Ms Peninton threaten to kill her. Her son was in bed with her during the course of this assault. Mr Dunningham then came into the bedroom. He grabbed the female victim by the neck and shook her. The female victim sustained injuries to her nose which produced significant bleeding. She did not sustain any permanent injuries.
His Honour found that Ms Peninton left school after completing year 10. She attended a business college for some twelve months. She was employed during that time as a secretary for a legal firm. From about the age of 18 she obtained employment in the sex industry and ultimately worked in a brothel which was purchased by her parents in 1997. She had a history of alcohol and drug issues. She suffered episodes of depression and was currently receiving treatment for depression with antidepressant medication. There was evidence from two acquaintances that she had turned her life around and had overcome her problems. She had a criminal record which his Honour described as follows:
“Peninton’s offending behaviour commenced in 1993 when convicted of offences of possess prohibited drug and self administer prohibited drug and assault police. Fines were imposed.
In 1998 she was convicted of possess prohibited drug and fined.
In 1999 and 2000 she was convicted of offences of shoplifting.
In 2002 she was convicted of malicious wounding and sentenced to six months imprisonment, reduced on appeal to 12 months periodic detention with a non parole period of six months.
In 2003 she was convicted of larceny, assault occasioning actual bodily harm and sentenced to six months imprisonment. Those convictions and sentences were confirmed on appeal.”
His Honour found that Mr Dunningham was one of six children whose father was an alcoholic. He completed his school certificate and successfully completed an apprenticeship as a mechanic. He ultimately purchased a newspaper truck delivery route which he had operated for the past 20 years. He has a history of anxiety and has been prescribed medication for depression. He had alcohol and drug issues, admitting to binge drinking and becoming violent. He had provided assistance to his mother when she had undergone open heart surgery by visiting twice a week and helping with shopping, housework and maintenance around the home. He had a criminal record which his Honour described as follows:
“…his record reveals an offence of break, enter and steal in 1971 which was dealt with in the Children’s Court.
In 1974 he was convicted of an offence of discharge firearm, unlicensed pistol and malicious injury. He received a three months suspended sentence for those offences.
Again in 1974, larceny and stealing in respect of which he received a sentence which was deferred upon him entering into a bond for a period of two years.
In 1988 he was convicted for assault occasioning actual bodily harm and again a two year bond was imposed.
In 1993 he was convicted for two counts of assault and was given a 12 months good behaviour bond.
In 1994 he was convicted of common assault and breach an apprehended violence order, he was placed on a three year good behaviour bond.
He has a number of traffic matters, the last being high range PCA in 1996. He has not come under notice for offences since 1996.”
His Honour concluded:
(a)The count 1 offence was slightly below the mid range in respect of each offender. His Honour in so finding took into account the absence of planning.
(b)The count 2 offence was below mid range for offences of this nature as the injury was not serious though delivered with a degree of ferocity involving at least six head butts by Ms Peninton.
(c)The count 2 offence, so far as it concerned Mr Dunningham, was more peripheral and toward the lower end of the scale.
(d)The count 3 offence was slightly below the mid range principally because the injury that was inflicted was not substantial. The attack however was sustained, dragging the victim through the house during which the victim was struck a number of times.
His Honour considered the count 1 offence was the most serious, reflected in the maximum penalty. Having regard to the fact that the offences occurred over a matter of minutes in one episode of criminal activity, his Honour regarded principles of totality as satisfied if the sentences were served concurrently.
His Honour considered the question of special circumstances. He regarded it as appropriate to adjust the relationship between the statutory non parole period and the balance of term in each case.
In Ms Peninton’s case this was because of comments in the pre sentence report concerning the offender’s history of depression and drug dependency and that her addicted behaviour had remained unresolved without any significant intervention to address those issues. In those circumstances, a longer period of supervision was appropriate to enable those issues to be addressed.
In Mr Dunningham’s case, he required intervention to deal with issues of his mental health, namely depression and alcohol abuse. He required monitoring of his medical treatment for depression and a referral to an anger management programme conducted by the Probation and Parole Service. His Honour noted this will be his first time in custody. Such matters likewise will require a longer period of supervision than provided by the statutory non parole period.
Ground 1: His Honour erred when he sentenced outside the range for this offence
Ground 4: The sentence is manifestly excessive.
The applicants sought, by reference to the NSW Judicial Commission sentencing statistics, to demonstrate that the sentences imposed were above the “mid range” rather than below, contrary to his Honour’s findings that the offences were below the mid range.
The statistics for non parole period/fixed terms for offences under the Crimes Act, 1900 s 111(2) between October 2000 and September 2007 are as follows: 6 months (2 percent); 12 months (34 percent); 18 months (28 percent); 24 months (17 percent); 30 months (13 percent); 36 months (4 percent); 42 months (2 percent); and, in respect of term of sentence - consecutive and non consecutive terms: 12 months (2 percent); 18 months (7 percent); 24 months (20 percent); 30 months (13 percent); 36 months (28 percent); 42 months (7 percent); 48 months (15 percent); 5 years (7 percent); 6 years (3 percent).
Ms Peninton submitted that the mid range for the offences was approximately 32 months whereas she “was sentenced to 42 months. Only 25% of people received a greater sentence than mine.”
“The mid range for non parole and fixed term sentences is approximately 15 months. The starting point for my non parole period was 30½ months before his Honour found special circumstances and lowered it to 24 months. Only 6% of people received a longer sentence than mine.”
The applicants also relied upon a number of decided cases as evidencing that lower sentences had been imposed for more serious offences.
However the applicants’ approach attributes a greater role to statistics and decided cases than is appropriate. A sentencing judge, in sentencing a person convicted of an offence, exercises a very wide discretion. In exercising that discretion he or she is not bound by a statistical sentencing range though in determining the sentence he or she may have regard to statistics such as those provided by the Judicial Commission of NSW and to similar cases, though caution must be exercised in the use of such material as the sentence depends on the facts of each case.
A sentencing judge is not bound by earlier decisions upon the facts of the individual case. As Spigelman CJ observed in R v Mungomery (2004) 151 A Crim R 376 at [5]:
“…the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition.”
That this is so is illustrated by reference to the first of the cases nominated by the applicants in support of their submission, R v Elmir [2003] NSWCCA 192. That was a case where a sentence of two years with a non parole period of one year was imposed by the Court of Criminal Appeal for a home invasion. The maximum sentence in that case, as with count 1 here, was 14 years imprisonment. On its face the facts of the cases were somewhat similar and a lower sentence had been imposed in Elmir. However, on closer examination it can be seen the case provides no guidance here as the offender received a discount of 20 percent for an early plea and cooperation, the circumstances of the offence were held to have justified significant mitigation in sentence and the sentence was imposed on a Crown appeal leading to a lower sentence than should have been imposed in the original sentencing court. But for these features the sentence in Elmir would have significantly exceeded that which was imposed in the present case.
The sentence imposed by his Honour on count 1 was within the general statistical range of sentences for offences under s 111(2). In my opinion it has not been established that his Honour sentenced outside the available range of sentence.
In R v Knight [2004] NSWCCA 145 at [31] this court held that the fundamental principle in sentencing for multiple offences is that the overall sentence imposed must reflect the totality of the criminality evidenced by those offences.
His Honour, correctly, said of the offences:
“These offences are objectively of a serious nature. Bearing in mind they involve a home invasion in the early hours of the morning when considerable gratuitous violence was inflicted on the victims. [The male victim] was restricted in his mobility and was a total stranger to the offenders. [The female victim] was asleep when set upon…The offence was committed in company, corporal violence was inflicted and the victims were the subject of malicious actual bodily harm.”
The primary offence carried a maximum sentence of 14 years imprisonment. The sentence of 2 years and 18 months for that offence, in my opinion, was not excessive. As no additional term of imprisonment was required to be served in respect of the additional offences, which were in themselves not insignificant, the sentences, both singly and overall, were not manifestly excessive. In my opinion, grounds 1 and 4 fail.
Ground 2: His Honour erred when he failed to take into account or sufficiently take into account specific aspects of my case
Ms Peninton made a number of submissions in support of this proposed ground. They are considered hereunder.
(a)This crime was unplanned and there was no premeditation. It was a spontaneous attack. His Honour expressly stated in his remarks on sentence that none of the offences were part of a plan to organise criminal activity and were more of a spontaneous nature. His Honour clearly had these matters in mind when sentencing. The weight he gave to these matters was a matter for his Honour. No error is demonstrated.
(b)This was a motiveless crime. His Honour stated that no clear motive for the offences was established. This was consistent with the evidence at the trial. It was impossible on the evidence to ascertain whether there was a lack of motive. No error is demonstrated.
(c)His Honour failed to look at sentencing options apart from full time custodial sentence. The seriousness of the offences rendered the imposition of a custodial sentence inevitable. The legal representative of the applicants expressly accepted that this was so during the sentencing hearing. No error is demonstrated.
(d)His Honour failed to mention that assault occasioning actual bodily harm is a Table 2 offence and that such offences are commonly dealt with in the Local Court. It would not have been appropriate for this offence to be dealt with as a Table 2 matter as it was linked to the more serious Count 1 offence. A failure to mention that in certain circumstances such a matter could be dealt with pursuant to Table 2 does not of itself constitute error. In any event, as the sentence for the Count 3 offence was subsumed in the sentence for Count 1, this point has no practical significance.
(e)His Honour erred when he said I had shown no remorse by way of plea of not guilty, making this sound like an aggravating factor but then quoting 21A(3)(c). The applicants were convicted after pleas of not guilty. There was no evidence or any indication of remorse put forward in the pre sentence reports or the sworn evidence given at the sentence hearing. His Honour’s comments were accurate. The mitigating factor to be taken into account pursuant to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, 1999 was absent. The reference to s 21A(3)(c) is an apparent typographical error. No relevant error on the part of his Honour is demonstrated.
(f)His Honour erred by placing too much weight on my criminal history. My record is not that bad. This is my first serious indictable offence. It was two years and nine months between my last offence and this one. I did not reoffend while I was on bail for one year. This should have shown I was getting my life under control and I was getting my drug abuse also under control. His Honour accurately set out Ms Peninton’s criminal record in his remarks on sentence. He stated:
“It can be seen from both offenders records there are offences of violence more so in Peninton’s record than Dunningham’s. Dunningham has no offences for 10 years and unlike Peninton has not previously served time in prison.
The record of offending behaviour does operate to deprive the offenders of leniency in sentencing, more so in Peninton’s case having regard to recency of the offences and the fact she has already been incarcerated for an offence involving violence.
In both cases it cannot be said that the current offences are an aberration or totally out of character.”
Ms Peninton’s submission that she was getting her life under control apparently consisted of her own efforts at rehabilitation though it was not in dispute that she had a celebration on a weekend during the trial taking a cocktail of ecstasy, amphetamines and GHB along with alcohol. There is little evidence she had undergone counselling or treatment programmes for any reasonable period of time. His Honour foresaw a need for her rehabilitation and extended that opportunity to her by finding special circumstances. No error is demonstrated in this regard.
In addition to the matters discussed at [30] (a)-(c) and (e) above, Mr Dunningham relied upon the additional matters which are discussed hereunder:
(a)This was my first time in prison. His Honour expressly referred to this fact in his remarks on sentence when finding special circumstances. No error is demonstrated.
(b)The offender does not have a criminal record or any significant record of previous convictions. His Honour erred when he found my criminal history was an aggravating factor 21A(2)(d) and then said my offending behaviour does operate to deprive me of leniency. Considering my criminal history is aged and minor. My submission is his Honour erred. Mr Dunningham has a criminal record. His Honour set it out in his remarks on sentence. His Honour correctly observed that he had no offences for ten years and had not previously served time in prison. No error is demonstrated in his Honour’s recording of the facts and the use which he made of them.
(c)The offender was a person of good character. Mr Dunningham had the criminal record which has previously been referred to. This militated against a finding of good character.
(d)The offender is unlikely to reoffend. Mr Dunningham has alcohol and drug issues. He admits to binge drinking and becoming violent. It cannot, on the evidence available to this Court, be said that in the absence of successful rehabilitation treatment he is unlikely to reoffend.
(e)The offender has good prospects of rehabilitation whether by reason of offender’s age or otherwise. Mr Dunningham’s prospects of rehabilitation may be questionable. Nevertheless his Honour has given him the benefit of a finding of special circumstances to enable such prospects as there are to be fully explored.
Ground 3: His Honour erred by making findings of fact not supported by evidence
His Honour found that injury was delivered to the female victim with a degree of ferocity involving at least six head butts.
Ms Peninton submitted
“It’s hard to believe a [person] could be head butted six times when the only injury is a nick on her nose and did not require any medical treatment.”
The evidence of the female victim was that she was head butted at least six times by Ms Peninton. His Honour was entitled to accept that evidence. Photographs tendered in evidence of the female victim’s injuries establish they were more than a “nick on her nose”. This ground fails.
His Honour found the attack on the male victim was sustained, dragging the victim through the house, during which time he was struck a number of times.
Mr Dunningham submitted his Honour erred in so finding as:
“the only injuries noted on examination was swelling and bruising, right orbit and over the left angle of the mandible and a three centimetre laceration above the right upper lip which required three sutures. There would therefore have to be a doubt about it being a sustained attack. The objective evidence indicated one blow.”
The evidence of the male victim supported his Honour’s findings as did the photographs which were tendered in evidence and which exhibited the injuries to the male victim and the blood stains which showed his passage from the door to the living room. This ground fails.
Ground 5: The judge erred when he sentenced both accused to the same sentence. (This ground applies only in relation to Mr Dunningham)
His Honour imposed the same effective overall sentence upon the applicants. His Honour made the following findings as to the respective culpability of the applicants:
(a)“As far as the respective culpability of the offenders are concerned, they are, to my mind, indistinguishable. They both entered the premises with the requisite intent and initially assaulted separate victims according to their gender. In those circumstances the sentence to be set will be the same for each offender in respect of that count [Count 1].”
(b)“As far as count two is concerned, the major contributor to [the female victim’s] injuries was Peninton. Dunningham, although involved by grabbing [the female victim] around the throat, caused little injury.”
(c)“As far as count three is concerned, Dunningham was solely responsible for the savage attack on [the male victim]. It also must be recognised the offence in count three carries a maximum penalty of seven years whereas count two carries a maximum penalty of five years.”
(d)“…although Dunningham has been convicted of an additional offence, the extent of the respective criminality is not significantly different.”
The relevant principle, that of parity, is that, generally speaking, co-offenders should receive the same sentence. As Gibbs CJ said in Lowe v The Queen (1984) 154 CLR 606 at 609:
“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.”
One must also take into account the application of the totality principle per McHugh J in Postiglione v R (1997) 189 CLR 295.
Mr Dunningham submitted that his Honour erred when he sentenced both applicants to the same sentence because
“We both had different personal circumstances and criminal histories. My record is aged and relatively minor compared to Peninton. My personal losses gave me a far harsher sentence than Ms Peninton, eg house, business, income etc. Also the pre sentence reports show major differences in our subjective circumstances.”
In R v Bragias (1997) 92 A Crim R 330 at 333.2 Grove J held:
“The loss of income from personal exertion is common to all convicts placed in custody. Suffering that handicap is a consequence of the respondent’s guilt of his crime and it is difficult to see how it is a particular subjective factor provoking special lenience. I do not suggest, of course, that the means of a convicted person cannot be relevant to the question of sentence but the approach adopted by her Honour invites the odd, and in my view incorrect, result that a high income earner could claim a lesser sentence for an identical offence than someone of more modest earnings because one would suffer a greater loss.”
Accordingly, the fact that Mr Dunningham’s personal losses may have been greater than those of Ms Peninton, in my opinion, is not relevant to the question of parity. In any event, as the applicants live together in a de facto relationship, the financial loss would impact upon each of them. As Mr Dunningham said in his oral submissions,
“We lost our house and everything through this. It had a devastating effect. I had a business for 20 years, I lost that. I lost the house because of legal fees and the bank. So it’s put my life back to square one and Lisa’s.”
Whilst Ms Peninton’s criminal record was worse than Mr Dunningham’s the effect of that on sentence was limited to leniency and it was to be offset against the additional criminality attaching to Mr Dunningham by reason of his conviction on the third count. Overall, the non parole periods/fixed terms imposed upon Ms Peninton was three years and on Mr Dunningham four years, albeit his Honour limited the significance of that in his remarks.
The pre sentence reports do not reflect differences in the subjective features of the applicants of a major nature such as to materially impact upon the parity of the sentences.
The sentencing judge determined both sentences at the same time. His Honour had a wide sentencing discretion. In my opinion, there was no marked disparity between the objective and subjective cases of the applicants. In my opinion, no error has been demonstrated as a result of his Honour imposing the same sentence on count 1 upon each applicant.
Conclusion
This is a court of error. Its powers in respect of an appeal on sentence are prescribed by s 6(3) of the Criminal Appeal Act, 1912. The court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms the positive opinion that some other, less severe, sentence is warranted in law and should have been passed - R v Simpson (2001) 53 NSWLR 704 at [79].
In my opinion, error has not been established nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.
In the case of each applicant, I propose the following orders
1. Leave to appeal granted.
2. Appeal dismissed.
HOEBEN J: I agree with Hislop J and the orders which he proposes.
**********
LAST UPDATED:
29 September 2008
0
5
3