R v Ball

[2021] NSWCCA 314

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Ball [2021] NSWCCA 314

Hearing dates:

8 December 2021

Decision date:

17 December 2021

Before:

Simpson AJA at [1];
Rothman J at [2];
Button J at [75]

Decision:

Appeal dismissed

Catchwords:

CRIME – Sentence appeal – Crown appeal – manifest inadequacy – error in classification of objective seriousness – aggravated break and enter – no error in particular circumstances of offence and offender, particularly non-exculpatory provocation – appeal dismissed.

Legislation Cited:

Crimes Act 1900 (NSW) s 112(2)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5; 9(1)(b); 10(1)(b)

Criminal Appeal Act 1912 (NSW) s 5D

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

House v The King (1936) 55 CLR 499 at 105; [1936] HCA 40

Lovell v R [2006] NSWCCA 222

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Marshall v R [2007] NSWCCA 24

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Williams v R (2012) 203 A Crim R 172; [2012] NSWCCA 172

Category:

Principal judgment

Parties:

Regina (Applicant)
Jessie Clarance Ball (Respondent)

Representation:

Counsel:
G Newton (Applicant)
Z Khan (Respondent)

Solicitors:
Office of the Director of Public Prosecution (NSW) (Applicant)
Hounsell Cunningham Lawyers (Respondent)

File Number(s):

2020/307291

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

19 August 2021

Before:

Jeffreys DCJ

File Number(s):

2020/307291

Judgment

1. SIMPSON AJA: I agree with Rothman J.

2. ROTHMAN J: On 19 August 2021, his Honour Judge Jeffreys at the District Court in Port Macquarie sentenced the respondent, Jessie Clarance Ball, for the offence of aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty under the Crimes Act for such an offence is 20 years’ imprisonment and there is prescribed a standard non-parole period of 5 years’ imprisonment.

3. The respondent was sentenced to a conditional release order for 2 years to date from 19 August 2021 with the standard conditions and the respondent was otherwise discharged pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Director of Public Prosecutions (NSW) (hereinafter “the DPP”) appeals the sentence imposed by his Honour, pursuant to the terms of s 5D of the Criminal Appeal Act 1912 (NSW).

4. The grounds relied upon by the DPP are:

Ground 1: His Honour erred in his assessment of the objective seriousness of the offence; and

Ground 2: The sentence pronounced is manifestly inadequate.

Facts

5. As a consequence of the respondent’s plea of guilty at the earliest possible opportunity, the respondent was committed for sentence in the Kempsey Local Court on 30 June 2021 and, as has been stated, was sentenced in the District Court on 19 August 2021. The offence with which the respondent was charged was that, between 8 PM and 9:30 PM on 1 October 2020, the respondent did break, enter and commit a serious indictable offence at an address in West Kempsey, the serious indictable offence being an assault occasioning actual bodily harm to the victim, Shane Wholohan, in circumstances of aggravation in that he knew that there was a person present in the house. The person known to be present was the victim.

6. There is a Statement of Agreed Facts. [1] The victim and the respondent had known each other for approximately three years and worked together for a period of time. They had an historical acrimonious relationship.

   1. Appeal Book, pp 33-35.

7. On the night of the offence, 1 October 2020, the victim attended the West Kempsey Hotel with his friend. The respondent was also at the bar with two of his friends.

8. Throughout the course of the night the victim went to the bar on three occasions to order drinks and, while attending the front bar on the two latter occasions, the victim heard the respondent muttering to his friends. The victim and respondent had a brief verbal exchange, instigated by the victim, but the only evidence of acrimony in that exchange came from the respondent, albeit after some non-verbal antagonism seemingly disclosed by the victim and/or his friends.

9. At approximately 7:30 PM, the victim left the hotel and was dropped at his home. He was home alone as his wife was visiting friends.

10. The victim was angry about the interaction with the respondent and sent a text message in the following terms:

“Your dad is probably a good cunt unlike you shame you did not end up with the cancer cunt

Funny how you are supposed to be this supertuff [sic] cunt but you could not say anything to my face you had to talk shit behind my back to your faget [sic] friends hope you and all your mates died in a car crash on your way home from the pub.”

[The context that should be understood in relation to the above text message is that the respondent’s father was, at this time, suffering terminal cancer.]

11. The respondent did not respond to this text message. However, he showed the text to his friends at the hotel.

12. At 8:17 PM, the respondent and his friends left the hotel and caught a taxi, which was directed to the victim’s house. The respondent approached the front door of the house after arriving, directing his two friends to remain on the nature strip, where the taxi had dropped them. His intention, as the court below found and as is uncontested, was to speak to the victim.

13. The victim thought that his wife was returning home, so he stood up and walked towards the front door. The respondent and victim then each saw each other through a glass panel in the front door. After a brief verbal exchange through the closed door, the respondent kicked open the locked, closed front door.

14. The respondent then entered the house and he and the victim became involved in a physical scuffle. During that scuffle, the respondent punched the victim in the face, head and rib cage a number of times. At some point during the assault, the victim fell to the ground and the respondent ceased the assault and left the victim’s house.

15. The victim was taken to Kempsey District Hospital. He had bruising and swelling to his left eye; swelling and bleeding from the nose; left chest pain; and mild pain in his left big toenail from where the door had struck him.

Subjective Features of the Respondent

16. The respondent was born in 1987 and was 33 at the time of the offence and 34 when he stood to be sentenced. He had no prior convictions and had been the subject of no prior charges.

17. The respondent was married with four children and shared parental responsibilities with his wife. The respondent was active in the local Rugby Union Football Club and was the Managing Director of the family earthmoving business.

18. The position of Managing Director of the earthmoving business was as a result of the respondent relieving his father of responsibilities as a consequence of his father’s inability to continue working. His father suffered from advanced metastasised renal clear cell carcinoma with pancreatic and mediastinal nodal metastases and toxicities from his treatment regime.

19. There is a Psychological Report of the respondent that was before the court during the course of the sentencing proceedings. The report, by Dr Alexia Taylor, dated 1 August 2021, expressed the opinion that the offending occurred within the context of a relaxed social setting.

20. It expressed the view that the unanticipated goading, referring to the respondent’s father, at a time when the respondent was trying to adjust to his father’s terminal illness, was significant. The opinion was expressed that reoffending was highly unlikely and that the offending behaviour was outside the norm of his past behaviour and present character traits.

21. The Crown submitted that the objective seriousness of the offence was slightly below mid-range, noting that the offence occurred in the victim’s home and the injuries required overnight hospitalisation. During the sentencing proceedings, the Crown’s primary submission was that the s 5 threshold in the Crimes (Sentencing Procedure) Act had not been crossed and that a full-time custodial sentence was inappropriate. On questioning from his Honour, the Crown conceded that there would be no appealable error if the sentencing judge “dealt with [the respondent] by way of a Community Release Order”. However, the Crown submitted that if there were a Community Release Order, without conviction, that may be falling into appealable error, because failing to record the conviction would not be quite “having regard to the seriousness of the offending”. [2]

    2. Appeal Book, p 100(33-46); Tcpt, 19 August 2021, p 5.

22. As to the respondent’s good character, references were tendered to the sentencing judge to confirm that which is otherwise in evidence as to the good character of the respondent.

23. The respondent has three siblings each of whom works in the business of which he is now Managing Director. He had a good childhood; and was raised on a farm. A fourth sibling, a brother, died approximately 12 months prior to the birth of the respondent and the family reacted, according to the respondent, in a manner which brought them closer – working on the farm and enjoying holidays together.

24. The respondent is married; has been married for 14 years; and has four children ranging from the age of 4 to 13, each of whom lives together with the respondent and his wife.

25. The respondent completed high school and has certificates in shopfitting and construction; completed a four-year apprenticeship, attending Hunter TAFE; and enjoys good health.

26. Prior to taking over the earthmoving company, apart from a short two-year stint at the company, the respondent worked as a joiner at different employers between 2005 and 2012 and 2015 and 2020. He worked in the earthmoving company between 2012 and 2014 and took over as General Manager in 2020. In the joinery establishments, from 2011, he worked as Production Manager.

27. The respondent is a very light social drinker; mostly beer, which he enjoys only on Saturdays either after rugby or work.

28. He has been attending a psychologist since the offence; he has expressed to the court below and to his psychologist and others remorse at his actions and embarrassment at conduct that he considers is not appropriate and that he should not have responded to the victim as he did.

29. The references come from a former employer in the joinery shop; the President of the Rugby Union Football Club with which the respondent is affiliated and of which he is club captain; the Principal of the primary school at which his children are enrolled; a contractor to one of the joinery companies for which the respondent worked; a director of one of the joinery companies; a teacher at St Paul’s College who is an associate of the respondent at the Rugby Union Football Club; the overseer at the Mid North Coast Correctional Centre who knows the respondent as a consequence of his involvement in the community and, in particular, the Rugby Union Football Club.

30. The breadth of persons in the context of this charge, who attest to the otherwise good character of the respondent is impressive.

DPP Submissions

Ground 1: Objective seriousness

31. The DPP submits that the sentencing judge erred in his assessment of the objective seriousness of the offence by:

1. failing to assess the seriousness of the victim’s injuries sustained in the assault occasioning actual bodily harm, being the serious indictable offence that forms part of the offence under s 112(2) of the Crimes Act to which the respondent pleaded guilty; and

2. not otherwise making any assessment of the seriousness of the assault occasioning actual bodily harm.

32. The sentencing judge summarised the agreed facts and the injuries that were sustained by the victim. [3] The DPP submits that, in assessing the objective seriousness of the offence, his Honour commented generally about offences of assault occasioning actual bodily harm, [4] remarking that this assault is one of the less serious forms of serious indictable offence and comparing it with, as an example, sexual assault.

    3. Appeal Book, pp 11-12; Remarks on Sentence, pp 4-5.

    4. Appeal Book, p 12; Remarks on Sentence, p 5.

33. The DPP submits that there was no further reference in his Honour’s remarks to the circumstances of the assault occasioning or the injuries suffered by the victim.

34. The DPP, in its submissions, refers to his Honour’s findings as to objective seriousness. [5] According to the DPP, his Honour found that the offending was at the lower end of the scale and the submission complains that, in making that finding, his Honour made no assessment of the seriousness of the assault occasioning actual bodily harm and how those injuries or that assault impacted upon his assessment of the seriousness of the offence.

    5. Appeal Book, p 14; Remarks on Sentence, p 7.

35. No reference, it was submitted, was made to the injuries or that the victim was hospitalised overnight. The DPP submitted that those factors needed to be taken into account and, if they were, it would necessarily have elevated the seriousness of the offence.

36. As a consequence of that failure, the DPP submits that the sentencing judge failed to take into account a material consideration in assessing the objective seriousness of the offence.

Ground 2: Manifest inadequacy

37. The DPP has submitted that the imposition of a Conditional Release Order, without proceeding to conviction, was unreasonable and/or plainly unjust. [6] The DPP referred to the Crown submissions on sentence which included the submission that:

“notwithstanding the victim’s conduct in sending the text message, the [respondent’s] response in travelling to his house, kicking the door in, and violently assaulting [the victim] is completely disproportionate and calls for condign punishment.”

6. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54.

38. The DPP, on appeal, also complains as to the qualification of the aggravating circumstance mentioned by his Honour below. While considering the aggravation of the offence as a result of the offence occurring at a person’s home, his Honour commented that while it is “true [the offence] was in the home”, his Honour qualified that by saying “but the reality is that there was no indication of any vulnerability in relation to [the victim]”.

39. The DPP submits that the aggravating factor of the offence occurring in the home is not predicated upon the vulnerability of the victim but, rather, is directed towards an individual’s entitlement to safety and security in their own residence.

40. The DPP submits that dealing with the offence under s 9(1)(b) of the Crimes (Sentencing Procedure) Act was unreasonable and plainly unjust, because it did not reflect the objective seriousness of the respondent’s offending or the need for deterrence, denunciation and recognition of harm to the victim.

Residual Discretion

41. Bearing in mind that the Court has available to it a residual discretion to reject the Crown appeal, the DPP submits that the matters that militate against the exercise of the Court’s residual discretion to decline to intervene and resentence are:

1. There was no undue delay in filing the appeal and notifying the respondent. The respondent was sentenced on 19 August 2021 and advised of the potential for appeal on 27 August 2021. The Notice of Appeal was lodged on 16 September 2021 and forwarded to the respondent’s solicitor on 17 September 2021;

2. The Crown below did not contribute to the manifest inadequacy of the sentence;

3. The s 10 Order is not due to expire until 18 August 2023; and

4. The appeal is brought for the purpose of engaging the discretion of the Court to correct the manifestly inadequate sentence imposed on the respondent. Guidance may be provided in this case to sentencing judges in order to achieve a higher level of consistency in sentencing.

Respondent’s Submissions

42. In response to the submissions of the DPP that his Honour failed to consider the extent of the victim’s injuries and made no assessment of the seriousness of the assault occasioning, the respondent submitted that his Honour was cognisant of and referred to the circumstances surrounding the assault occasioning and the injuries sustained by the victim. [7] His Honour accurately summarised and recited the agreed facts. The respondent submits that the injuries referred to in the agreed facts[8] are typical of a low-level assault occasioning actual bodily harm, being some bruising and swelling.

    7. Appeal Book, pp 10-11; Remarks on Sentence, pp 3-4.

    8. Statement of Agreed Facts, p 34 at [13].

43. The respondent relied on the decision in Williams v R,[9] in which Price J observed that the objective seriousness of an offence is to be determined wholly by reference to the nature of the offending. His Honour, Price J, stated:[10]

“I do not think that the nature of the offending is to be confined to the ingredients of the crime, but may be taken to mean the fundamental qualities of the offence.”

9. Williams v R (2012) 203 A Crim R 172; [2012] NSWCCA 172.

10. Ibid, at [42].

44. The respondent points to the conclusions of his Honour below, namely, that the objective seriousness of the offence falls towards the lower end of the scale [11] and that his Honour set out a further five factors for that conclusion, being:

    11. Appeal Book, p 14; Remarks on Sentence, p 7.

1. some provocation;

2. there was no indication that when the respondent went to the premises, he was intending to assault the victim;

3. there was no evidence that the respondent intended to break into the premises;

4. the offending was on the spur of the moment with a great deal of spontaneity;

5. there is no indication of any vulnerability in relation to the victim.

45. The respondent submits that the five additional matters identified above are supported by the Statement of Agreed Facts and were reasonably open to his Honour. It is also submitted that once his Honour made a finding of “some provocation”, albeit not exculpatory, it was open to his Honour to use this as a basis for a further shift downward in any assessment of the offending as to its objective seriousness.

46. As to Ground 2 and the submission that the sentence pronounced was manifestly inadequate, the respondent refers, as recited above, to the concession both in writing and orally that the s 5 threshold had not been crossed. [12]

    12. Appeal Book, p 85 at [16] ; Outline of Crown Submission on Sentence, p 3 and Appeal Book, p 100; Tcpt, 19 August 2021, p 5(33-36).

47. As a consequence of the concession below, the gravamen of the appeal on the basis of manifest inadequacy relates specifically to whether there should have been a recording of a conviction. The respondent submits that his Honour’s reasons indicate significant thought and consideration was given to the exercising of his discretion under this sentencing option and the respondent points to the five pages of discussion on that very issue in his Honour’s remarks. [13]

    13. Appeal Book, pp 17-21; Remarks on Sentence, pp 10-14.

48. The respondent concedes that the imposition of a s 10 Bond, with no conviction, was a lenient sentence but was neither unreasonable nor plainly unjust.

Consideration

49. The sentencing proceedings occurred on 19 August 2021 and the sentence was imposed by his Honour in remarks that were given ex tempore. The proceedings occurred in the District Court at Port Macquarie, while his Honour was sitting on circuit.

50. His Honour’s remarks are complete. He refers to each of the relevant legal issues, the guideposts of the maximum sentence and standard non-parole period; the judgment of the High Court in Muldrock v The Queen [14] and the process of intuitive synthesis. [15]

    14. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

    15. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

49. The respondent pleaded guilty before a Magistrate; the provisions of Div 1A of the Crimes (Sentencing Procedure) Act apply and the learned sentencing judge applied a reduction of sentence of 25% for the utilitarian value of the plea of guilty at the earliest opportunity.

50. His Honour set out the facts or summarised them, without omitting any relevant fact and in so doing included every relevant fact. There was no mistake of fact to which the DPP can point.

51. In reciting those facts, the learned sentencing judge referred to the injuries suffered by the victim; the fact that a friend drove him to his wife; that the wife contacted the police and the ambulance service; that the victim was taken by ambulance to the hospital, where he was examined; the nature of the injuries; and the fact that he was hospitalised overnight for observation.

52. The facts have already been recited in these reasons for judgment and it is unnecessary to repeat them, but it is necessary to recite the foregoing because the gravamen of the first ground of appeal by the DPP is that his Honour paid no attention to and made no assessment of the assault occasioning actual bodily harm by reference to the injuries and hospitalisation of the victim.

53. Unless this Court were minded to require sentencing judges to refer to the significance of every single fact that is recited, it must be accepted that the sentencing judge, having recited those circumstances, took them into account in his assessment of the objective seriousness of the offence.

54. Moreover, in referring to the circumstance that the offence occurred in the victim’s home and assessing the objective seriousness of the offence, the learned sentencing judge referred to the comments of Howie J and recited them. [16] Those remarks refer to the fact that in determining the seriousness of the aggravating feature of knowing that a person or persons are present in the premises, the matters of relevance will include the type of person present in the premises and, as per the examples used by Howie J, whether the person was a child or some other vulnerable person; whether the respondent knew that the person or persons on the premises were particularly vulnerable; and whether it is likely that the persons were asleep. Those factors were properly taken into account by the learned sentencing judge below.

    16. Marshall v R [2007] NSWCCA 24.

55. His Honour also referred to the comments of Johnson J[17] in which his Honour referred to the type of conduct constituting a s 112(2) offence encompassing a wide range of activities. The particular passage cited referred to two cases: one of which was characterised as being significantly below the mid-range of objective seriousness as a consequence that it was an act of retaliation against a person who had assaulted the offender’s father; the other being retaliation for what was an assault perpetrated against the offender’s daughter, which was assessed as being at the lower end of the range of objective seriousness. [18]

    17. Lovell v R [2006] NSWCCA 222 (Johnson J, with whom McClellan CJ at CL and Latham J agreed) at [63].

    18. Ibid, and the cases recited therein.

56. The material before his Honour disclosed provocation, which his Honour took into account in determining the objective seriousness. The foregoing comment is not intended to condone retaliation for the kind of message that was sent. But, in this case, the confrontation was not intended to be physical. The evidence before the Court was that the intention of the respondent was to speak with the victim; they did exchange words; and, as a consequence, the break-in and assault occurred.

57. In terms of assaults occasioning actual bodily harm, I agree with the respondent’s submission that the injuries are typical of an assault occasioning actual bodily harm; involved bruising and swelling; and do not take the objective seriousness beyond that which would otherwise arise from the nature of the offending.

58. In order for this Court to intervene in a sentence imposed by a sentencing judge, the Court is required to find a circumstance which allows for the intervention of the Court in an exercise of discretion. In order to interfere with the imposition of a sentence, this Court must be satisfied of error, being either identifiable error or manifest error in outcome.

59. For the exercise of discretion to involve error the sentencing judge must have: acted on the wrong principle; allowed extraneous or irrelevant matters to be used in determining the sentence; acted on a mistake of fact; or failed to take into account a material consideration. [19] Otherwise, the Court must be satisfied that there is a manifest error, of which the Court can only be satisfied if, when examining the outcome of the exercise of the sentencing discretion, the Court is satisfied that the outcome is “unreasonable” or “plainly unjust”. [20] When the sentence imposed or the classification of objective seriousness is “unreasonable” or “plainly unjust”, the Court, on appeal, draws the inference that there has been a failure properly to exercise the discretion conferred on the sentencing judge.

    19. House v The King (1936) 55 CLR 499 at 105; [1936] HCA 40 (Dixon, Evatt & McTiernan JJ)

    20. Ibid.

60. To interfere with an assessment of objective seriousness, a task or evaluation by the sentencing judge, the same level of satisfaction is required. It is insufficient to justify intervention by this Court on the basis that it would have assessed objective seriousness differently.

61. The Court is required to come to the conclusion that the classification of objective seriousness by the sentencing judge was not open. Judicial officers may reasonably arrive at different results.

62. Particularly given that the sentencing remarks were given immediately after the conclusion of the proceeding and ex tempore; the express consideration of the circumstances of the hospitalisation and injuries to the victim; the non-exculpatory degree of provocation and the spontaneous nature of the offence, I am not satisfied that the assessment of the learned sentencing judge of the objective seriousness of the offence was not open to him and I would not allow Ground 1 of the appeal.

63. As to manifest inadequacy, stripped to its essentials, the difference between the Crown, below, and the respondent was whether a conviction should be recorded or it should not. I have earlier referred to the exchange between the sentencing judge and the Crown below. [21]

    21. Appeal Book, p 100; Tcpt, 19 August 2021, p 5.

64. The offence in question is, when coupled with the subjective circumstances of the offender, one in which the respondent was entitled to a significant degree of leniency. As stated, this offence is the first offence committed by the respondent, even though he is 34 years of age. He has not before been charged with any offence and his good character is uncontested.

65. The respondent was and is entitled to a significant degree of leniency that is afforded to a first offender with otherwise good character. [22] The offending is wholly out of character; it is unlikely to be repeated; and it was provoked, albeit in a way that ought not to have resulted in physical violence or a break-in.

    22. Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

66. The quite exceptional circumstances that were before the learned sentencing judge, including the steps, voluntarily undertaken by the respondent, in attending on a psychologist to deal with the underlying causes of his reaction, is such that in my view, the sentence imposed by the sentencing judge was within range.

67. Judicial officers may reasonably derive a different sentence to be imposed upon offenders. Of course, it would have been within range to record the conviction. It may have been within range to impose a more serious punishment, but neither of those factors detract from the proposition that, in the particular circumstances of this case and this offender, the sentence imposed by the sentencing judge was within range and was neither unreasonable nor plainly unjust. I would not allow the second ground of appeal.

68. Apart from the foregoing, were I otherwise of a different view either as to the assessment of objective seriousness or the manifest inadequacy of the sentence, I would exercise the residual discretion and not interfere in the sentence imposed. I accept that the sentence is lenient, particularly because no conviction was recorded. However, the recording of a conviction for a respondent in the circumstances of this appeal would make little difference to the punishment suffered; would not act as a general deterrent; would not affect any need for specific deterrence; and is, in the circumstances, unnecessary.

69. There is no doubt that the sentencing judge turned his mind to the issue of whether a failure to record a conviction would be too lenient a sentence and a significant portion of the sentencing judge’s Remarks on Sentence are concerned with that aspect. This was an exercise of discretion that was lenient, but carefully considered and it did not miscarry.

70. While I accept that the appeal was taken without undue delay and was served expeditiously on the respondent, I do not accept that the Crown did not contribute to the leniency of the sentence. As earlier stated, the Crown accepted that a non-custodial sentence was appropriate in both its written and oral submissions.

71. In my view, an interference with the sentence imposed would provide almost no guidance to sentencing judges in sentencing in any ordinary break and enter and commit serious indictable offence, as the circumstances of this offence and this offender are quite special.

72. For the foregoing reasons I propose the following order:

1. Appeal be dismissed.

75. BUTTON J: I agree with Rothman J.

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Endnotes

Decision last updated: 17 December 2021