R v Allbon

[2000] NSWCCA 41

CITATION:	R v Allbon [2000] NSWCCA 41
FILE NUMBER(S):	CCA 60126/99
HEARING DATE(S):	Friday 25 February 2000
JUDGMENT DATE:	25 February 2000
PARTIES :	Regina v Nathan Grant Allbon
JUDGMENT OF:	Grove J at 1; Smart AJ at 28

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0381
LOWER COURT JUDICIAL OFFICER :	Rummery DCJ

COUNSEL :	P.G. Berman (Crown) R. Burgess (Appellant)
SOLICITORS:	S.E. O'Connor (Crown) T.A. Murphy (Appellant)
CATCHWORDS:	Criminal Law and Procedure - Malicious Wounding With Intent to do Grievous Bodily Harm and Other Offences - Sentence - Mentally and Physically Handicapped Offender - Extensive Prior Record - Much Previous Leniency - No Error in Exercise of Sentencing Discretion - Ambiguity Concerning Concurrency - Adjustment to Orders for Service of Sentences
DECISION:	Appeal allowed in part

IN THE COURT OF
CRIMINAL APPEAL

60126/99

GROVE J
SMART AJ



Friday 25 February 2000

REGINA v NATHAN GRANT ALLBON


JUDGMENT

1    GROVE J : This is an application for leave to appeal against severity of sentence imposed by Rummery DCJ in the Sydney District Court.

2    The applicant appeared before his Honour upon two indictments. On the first indictment, he pleaded guilty to the alternative count of malicious wounding with intent to inflict grievous bodily harm, and on the second indictment he pleaded guilty to a charge of breaking entering and stealing.

3    In respect of the second indictment, his Honour was asked to take into account an offence of malicious damage by fire. His Honour imposed sentences in respect of both indictments, and I shall in due course return to make some observations about the orders made in connection with the service of those sentences.

4    For present purposes it suffices to indicate that the encompassing sentence was imposed on the first indictment, being a total of eight years penal servitude divided into minimum and additional terms of four years each respectively.

5    I propose to deal with this matter in relatively a short form. There is no doubt that there is tragedy involved beyond the usual in this case.

6    It should be noted that the applicant was born with cerebral palsy and is an intellectually and physically disabled person. It is said in some of the reports which were before his Honour that he operates in some respects at the level of a seven year old.

7    On the other hand, in respect of some matters, for example, an interest in the mechanics of motor cars and the like, he seems to operate at a somewhat higher level. At the time of the offences with which Rummery DCJ had to deal the applicant was twenty three years of age.

8    The matters in the second indictment were the first in time. Briefly, on 5 April 1997, the applicant broke into a pie shop and stole $180 and whilst there he set fire to paper bags under a counter. The resulting fire caused damage to stock and equipment. It was said that the applicant later told someone that he had lit the fire because the lady at the pie shop had accused him of trying to steal her car. There seems to be no evidence to support this assertion.

9    Be that as it may, the applicant was on Supreme Court bail in respect of this matter when the events occurred which gave rise to the first indictment.

10    At about 7.30 pm on 2 February 1998 the applicant entered the victim’s home unit through a closed, but unlocked, wire screen door and removed a knife from a cutlery drawer.

11    The victim was himself a severely handicapped person and sight impaired. He was sitting in a darkened room with the television going. The applicant stabbed him some fifteen times causing grievous injury in a number of parts of the man’s body. He left the premises, having washed the knife and replaced it in the drawer. He pulled the door shut which activated a deadlock. Fortunately for the victim, the applicant’s mother, who happened to be visiting somebody in the same block of units, heard sounds of distress and ambulance officers were called and were able to break into the flat and take the victim for treatment.

12 The applicant has considerable antecedents. It was observed by his Honour that his prior record contained some ninety or thereabouts appearances for offences before courts. Obviously because of the handicaps he has been treated over the years for these many offences with a considerable amount of leniency. Many offences have been dismissed pursuant to section 556A of the Crimes Act and other very lenient impositions have been made.

13    The applicant draws attention to two matters primarily in support of this appeal. It is said that his Honour gave too much weight to the issue of general deterrence. His Honour stated in the course of his remarks that considerations of general deterrence loomed large notwithstanding the special nature of the prisoner’s intellectual and physical disabilities.

14    There is ample authority that persons of intellectual and like disabilities may not be suitable vehicles for the manifestation of general deterrence. Nevertheless, the law is not that such persons cannot be a vehicle at all for manifesting general deterrence.

15    His Honour was obviously alert to the necessity for specificity about this matter, and for my part I am unable to attribute error to his finding.

16    The next matter that was adverted to related to matters that were explored by professionals concerning ways in which the applicant may be able to be rehabilitated. It should be observed that over the years it has been the opinion of suitably qualified professionals that the applicant is fit to plead. That is to say, he understands the nature of charges brought against him and the proceedings. There is no reason to conclude that he was not aware of the criminality of his actions.

17    It is said by reference to statistics that this sentence, that is to say the encompassing sentence of a total eight years with a minimum term of four years, should be categorised as manifestly excessive. I am unable to uphold that submission. It seems to me that the enormity of the offence, including the attack upon the defenceless, unsuspecting and unprovoking victim is such that a sentence of the kind imposed by his Honour was warranted. Had the offender not been in the position of this applicant, in my view a much larger sentence would have been warranted.

18    I turn to a final matter which arises out of his Honour’s orders. I refer to the matters upon each indictment. His Honour imposed a sentence of eight years on the first indictment, and ordered it to commence on 2 September 1998. That date represented the expiry date of sentences for unrelated matters which the applicant was serving. He had in fact been in custody since on or about 2 February 1998 in respect of his arrest following the malicious wounding, and in respect, ultimately, of serving other sentence.

19    When his Honour came to sentence the applicant for the offence of breaking entering and stealing at the pie shop, the facts of which I have sketched, he said that he would take into account the matter on Form 1 and order a fixed term to commence on 2 February 1998 expiring on 1 April 1999.

20    He then said, after referring to the reason for the fixed term, “both the sentences are to be served concurrently”. It is pointed out that on any view, the sentence imposed for the breaking entering and stealing will be wholly subsumed within the minimum term component of the sentence imposed for the malicious wounding.

21    Counsel for the Crown has acknowledged that what his Honour has done in setting different commencing dates appears odd but has pointed to the circumstance that I have just mentioned, and said that therefore on any view what his Honour must have meant when he said that both sentences were to be served concurrently is that the second shorter sentence would be subsumed within the minimum term of the other.

22    Counsel for the applicant has argued that there is, to say the least, doubt about what his Honour intended and if he intended that the sentences were to be served concurrently then he has either made an error in not matching the commencing dates, or one can speculate there is a typing error in one or other of the commencement dates.

23    This court is not in a position to know, in the event that the latter is correct, which is mistaken. That is to say, whether February should read September, or whether September should read February.

24    I have come to the conclusion that there is sufficient lack of clarity about the matter to require this court ex debito justitiae to adjust the commencement date of both the sentences so that they fulfil the formula which his Honour expressed, namely that both the sentences would be served concurrently in the conventional sense that they would commence upon the same date. I would not, however, otherwise vary the sentences.

25    Accordingly, I propose the following orders:

26    That the application for leave to appeal against sentence be granted, that the appeal be allowed to the extent that the orders made by his Honour in respect of the first count be quashed and in lieu thereof the terms be specified as a minimum term of imprisonment of four years to commence on 2 February 1998, and to expire on 1 February 2002, together with an additional term of four years commencing on 2 February 2002.

27    Save those variations, the sentences imposed and the other orders made, are to stand.

28    SMART AJ: I agree.

29    GROVE J: The orders of the Court therefore will be as I proposed.
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