R v Barker

[2009] NSWCCA 225

New South Wales
Court of Criminal Appeal

CITATION:	R v Barker [2009] NSWCCA 225
HEARING DATE(S):	25 August 2009
JUDGMENT DATE:	11 September 2009
JUDGMENT OF:	McClellan CJatCL at 1; RA Hulme J at 58; Davies J at 59
DECISION:	Crown appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - Crown appeal - objective seriousness - sentence manifestly inadequate - residual discretion dismissing the appeal
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Firearms Act 1996 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	MLP v R (2006) 164 a Crim R 93 Pearce v The Queen (1998) 194 CLR 610 R v Deng Mading Deng (2007) 176 A Crim R 1 R v Hansel [2004] NSWCCA 436 R v Jenkins [2006] NSWCCA 412 R v Tory and Tory [2006] NSWCCA 18 R v Todorovic [2008] NSWCCA 49 R v Way (2004) 60 NSWLR 168 R v Yang [2002] NSWCCA 464; 135 A Crim R 237
PARTIES:	The Crown (applicant) William Barker (respondent)
FILE NUMBER(S):	CCA 2009/3017
COUNSEL:	M M Cinque (Crown/applicant) A C Haesler SC (respondent)
SOLICITORS:	Director of Public Prosecutions (Crown/applicant) Legal Aid Commission of NSW (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/3017
LOWER COURT JUDICIAL OFFICER:	Nicholson DCJ
LOWER COURT DATE OF DECISION:	23 June 2009

2009/3017

McCLELLAN CJ at CL
R A HULME J
DAVIES J

FRIDAY 11 SEPTEMBER 2009

R v BARKER, William

Judgment

1 McCLELLAN CJ at CL: The court heard this appeal on 25 August 2007 when it determined that the appeal should be dismissed. These are my reasons for joining in those orders.

2 The respondent pleaded guilty to one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900 and one count of possessing a loaded firearm so as to endanger life contrary to s 93G(1)(a)(ii) of the Crimes Act 1900. The offence contrary to s 35(4) carries a maximum penalty of imprisonment for 7 years. There is a standard non-parole period of 3 years. The offence contrary to s 93G carries a maximum penalty of imprisonment for 10 years. There is no standard non-parole period for this offence.

3 The respondent was sentenced for the s 35(4) offence to a total term of imprisonment of 1 year and 10 months and 15 days with a non-parole period of 6 months. For the s 93G(1) offence he was given the same sentence. The sentencing judge ordered that the sentences be served concurrently. The non-parole period is due to expire on 16 November 2009.

4 The respondent was also sentenced in respect of 5 related matters referred to the District Court for sentence pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 being:

For 2 offences of possessing ammunition without licence/permit contrary to s 65(3) of the Firearms Act 1996 (maximum penalty fine of $5,500): pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the respondent was convicted but no further penalty was imposed.

For 2 offences of possessing an unregistered firearm contrary to s 36(1) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 2 years and/or $5,500 fine: concurrent sentences of fixed terms of imprisonment being 6 months in relation to a Winchester 12 gauge shotgun and 4 months and 15 days in relation to a Winchester .22 rifle these sentences being wholly concurrent with the sentences for the substantive offences.

one offence of failing to keep a firearm safely contrary to s39(1)(a) of the Firearms Act 1996 for which the maximum penalty is imprisonment for 12 months and/or a $2,200 fine imprisonment for a fixed term of 4 months made wholly concurrent with the term of imprisonment for the substantive offences.

5 The Crown appeals the penalty imposed for the substantive offences. However, it was not submitted that any error was made in relation to the sentence for the five related matters.

6 The respondent was sentenced on 23 June 2009 and served with the notice of appeal on 2 July 2009.

The facts

7 The respondent pleaded guilty at the earliest opportunity. At the sentence hearing an agreed statement of facts was tendered. The respondent also gave evidence.

8 The respondent and the victim Jennifer Barker had maintained a domestic relationship for approximately 37 years. They had 4 adult children. Mrs Barker lived with 2 of her daughters. She was in relatively poor health, had suffered a number of strokes and experienced considerable difficulty in maintaining her mobility.

9 The respondent was employed on a large rural station situated approximately 45 kilometres south west from Bourke. He lived in a cottage on the station during the week and stayed in Bourke on weekends.

10 During the evening of 22 July 2007 the respondent drank after work. It was his usual habit to consume 3 full bottles of beer each afternoon. However, on this occasion the shearing on the station had finished and, as was usual, the drinking continued into the evening. The respondent gave evidence, which was accepted by his Honour that during drinks after work on a number of evenings leading up to the night of the attack one of the shearers had told him that he was “running around with (his wife).” On the evening of 22 July the respondent consumed “quite a bit more” than the 3 bottles he usually drank. He gave evidence that he kept thinking about what he had been told and it ultimately “got too much for me.”

11 He decided to go to town. He took a taxi and had with him an esky which contained 7 or 8 bottles of beer and a knife. He was also carrying a bag containing a loaded shortened 12 gauge Winchester single barrel shotgun, seven live shotgun cartridges, a piece of orange plastic pipe about 2 metres long and a length of rope about 3.5 metres long. When he arrived at his wife’s premises he went into her bedroom. Mrs Barker was resting on the bed under a blanket and one of her adult daughters was asleep beside her. The respondent pulled the blanket off Mrs Barker and struck her hard with the orange pipe on her left leg and arm about 5 or 6 times. He was yelling at her angrily and asked her who the man in bed with her was. He poked her in the chest with the piece of pipe causing bruising.

12 His daughter woke up, got out of bed and told her father to stop it. He responded by telling her to stand back and continued to hit Mrs Barker. His daughter ran out of the room and his wife, who was very frightened, asked the respondent to leave her alone saying “don’t hurt me.”

13 The respondent left the bedroom and went to the lounge room where he picked up the shotgun. He came back to the bedroom and standing one foot away from Mrs Barker aimed the shotgun at her chest and said “you’re not going to see your grandkids grow up because I am going to shoot you.” He said that he was going to kill her and then kill himself. Mrs Barker saw the respondent’s hand on the trigger of the gun. She also saw the respondent put 3 shotgun cartridges into his left hand shirt pocket.

14 The respondent did not carry out his threat and ultimately put the shotgun down. He then produced a length of rope, tied one end to the bedpost, and wrapped the rope around Mrs Barker’s throat at least twice. He then picked up the shotgun by the barrel and struck Mrs Barker twice on the head with the stock of the gun. Mrs Barker felt immediate pain and a sensation of blood coming from her head. She yelled out to her 2 daughters to get the police. The respondent told his daughters to stay out of the room and pacing up and down accused Mrs Barker of “having men, having parties up there.”

15 The police arrived about 11.30 pm. The respondent emerged from the bedroom and came down the hallway. He had blood on his face and hands. He told some untruths to the police, including that there were no firearms in the house. The police searched the premises and found Mrs Barker who had retreated to the second bedroom. She had a large amount of blood covering her clothing, face and head. When taken to hospital she was found to have 2 deep lacerations on the vertex of her scalp measuring 6 and 7 cms in length. The wounds required stitches. Mrs Barker subsequently developed symptoms consistent with a stroke and was transferred from Bourke Hospital to Dubbo Base Hospital for treatment.

16 The respondent was searched. He was found to have 6 shotgun rounds in the side pockets of his jacket. Blood was found on the shotgun barrel and there was blood on the bedroom mattress and doona cover. The shotgun was found to contain one unused cartridge. The respondent accused the police officer of planting the round in the weapon.

17 When the premises were searched a large knife was found in the bathroom basin. Both the blade and the basin had apparent blood staining. The police found a length of rope on the floor in front of the toilet. The rope was stained with blood and one end of it appeared to have been cleanly cut. In the main bedroom the police found a piece of white rope tied to one of the bed head posts. Its free end was cleanly cut and had the appearance of being blood stained.

18 The respondent’s cottage on the rural station was searched and the police found four live shotgun shells in a suitcase under the bed, a live .22 round on a coffee table and a loaded Winchester .22 lever action rifle which contained 3 bullets.

19 When the respondent was interviewed by police he said that he had “a few to drink.” He said he had only put the rope partly around Mrs Barker’s neck because he was trying to get information from her. He said that he was trying to frighten her because he wanted to know what was happening with “the affair with another fella.” He said he never intended to hurt her but just to frighten her. He said that he did not know that the shotgun was loaded.

20 He says that he brought the firearm from “out at Booker” which is further from Bourke than his usual residence. He said that he got it out of a rubbish tin. He told the police that he had not used firearms before and had no licence. He said that when he found the firearm he did not check if it was loaded.

The remarks of the sentencing judge

21 The sentencing judge gave careful consideration to the circumstances of each offence and the personal situation of the respondent. His Honour accepted that when questioned about the matter of the gun being loaded the respondent’s answer was not correct. However, he was not “satisfied beyond reasonable doubt it was deliberately untrue.”

22 His Honour accepted that although the respondent gave some answers which were helpful when interviewed some of what he said was not true. His Honour was satisfied that the respondent had put the rope around his wife’s neck to try and get information from her about another boyfriend. His Honour did not accept that the respondent obtained the shotgun in the manner he had suggested. He said: “my view is the firearm was somewhere on (the station).” His Honour was sceptical about the respondent’s suggestion that he brought the firearm only with the intention of frightening his wife “because she wouldn’t let me know what was happening about the affair with another fella.” His Honour observed that the respondent brought the gun to the premises before he knew that his wife would not cooperate.

23 His Honour accepted that the respondent felt sorry about what he had done. Although in his statement the respondent said he was thinking “revengeful thoughts” when hitting his wife, having regard to the respondent’s poor level of literacy, his Honour believed that the word “revengeful” had probably been suggested to him. His Honour accepted that the respondent had had nothing to eat during the day. However, his Honour did not accept that the respondent’s evidence that he had not used firearms before.

24 The sentencing judge was satisfied that the respondent was affected by alcohol and that he had consumed more than he usually would because of the impact the malicious gossip about his wife had upon him. His Honour was satisfied that the respondent believed that what he had been told about his wife was true. A prior arrangement had been made for his wife to ring him at about 7 pm that evening. When this did not happen the respondent believed it was because his wife was being unfaithful to him. The sentencing judge was satisfied that the respondent was “deeply troubled, distressed, dismayed by his beliefs which when coupled with alcohol morphed into an anger and a determination to frighten his wife and find, out if he could, more about what was happening.”

25 Although the respondent was carrying a knife his Honour was not satisfied that it was in his possession for any purpose related to his anger. His Honour was satisfied that upon entering the bedroom and finding two occupants in the bed, his worst fears were realised (wrongly as it turned out) and that discovery contributed to his subsequent behaviour.

26 At the time of the incident the property upon which the respondent worked was about to be sold. His Honour accepted that this caused the respondent concern that he may lose his job and that because of his age, and race, his employment prospects on the open market would be uncertain.

27 His Honour found that the respondent had used the rope to tie his wife to the bed so that she was unable to move to release herself. His Honour concluded that the daughter had used a knife to cut the rope. Although a bloodstained knife was found in the bathroom his Honour believed this had been handled by the daughter and not by the respondent.

28 His Honour considered the objective criminality of the offences. In so doing he was careful to identify the fact that all citizens have a right to the “integrity of their body.” His Honour said that “any authority that a male once had to chastise his partner has long, long been abolished.” His Honour also observed that these issues were of particular concern in Aboriginal communities.

29 His Honour recognised that one of the prime purposes of sentencing is the protection of the community and in that respect one of the largest groups in the community who are in peril are female partners from abusing male partners. His Honour recognised that the law seeks to protect the whole community and does not distinguish on the basis of gender, colour or race. His Honour said “a belief that one’s partner has been unfaithful, no matter how painfully held, or how reasonably held, cannot, excuse any physical assault, let alone having the violence of this assault.”

30 His Honour found that the wounding was caused by 2 strikes with the butt of a shotgun. The wounds bled. At the time Mrs Barker had only a limited capacity to move her head having been tied in a manner which restricted her movements. His Honour found that “beyond reasonable doubt the stock of the shotgun was aimed at her head the level of recklessness involved was high.” His Honour found that in effect 3 weapons were used, the polythene pipe, the shotgun and the rope. His Honour concluded that the use of the rope aggravated the wounding charge. Mrs Barker was a vulnerable victim because of her health problems and the fact that she was surprised in her bed at home. His Honour was satisfied that “the presentation of a shotgun a foot or so from her must have been simply terrifying.” He said that “the pointing of a loaded shotgun accompanied by the words ‘you’re not going to see your grandkids grow up, cause I’m going to shoot you’, his announcement that he was going to kill himself”, were all matters that must have caused extreme levels of fear and stress. His Honour was satisfied that Mrs Barker was under attack for a sustained period although its full duration was unclear. Although he found that the respondent came equipped to frighten his wife he accepted that the wounding offence was not planned and was the result of rising anger at the scene. His Honour was satisfied that he took the weapon with him in order to frighten his wife. His Honour accepted that the respondent did not know that the shot gun was loaded and found that the endangerment of life came from aiming it at Mrs Barker coupled with the threat of discharge and from using it to strike his wife on the forehead.

31 Although his Honour was of the view that the respondent’s belief that his wife had been unfaithful was no excuse for his behaviour he found that it was genuinely held and that it was not unreasonable that he came to such a belief. His Honour concluded that he may have been more vulnerable to responding emotionally because of his prevailing uncertainty about his prospects of employment. His Honour accepted that he consumed more than his usual amount of alcohol because of his emotional distress at the time.

32 His Honour concluded that the objective factors relevant to the offence indicated a level of objective seriousness falling “below the lower rungs of the mid range of seriousness.” His Honour rejected a Crown submission that the respondent had a plan to wound his wife concluding that there was a plan to frighten her. His Honour concluded that the offences were at the lower area of the mid range because the wounds were relatively modest. Although his Honour concluded that the use of a shotgun was common to both offences “in the wounding offence the result of the use of the weapon are the two wounds.” In relation to the firearm offence his Honour concluded that “the result of its possession was the endangering of life.”

33 With respect to subjective matters his Honour identified the fact that the respondent was 59 years of age. He has four children with his wife and a number of grandchildren. His son works with him and he watches out for and directs him at his work.

34 The respondent left school at age 14. Although he is able to read he is not fluent. He has worked his entire life on rural properties. He has been employed for approximately 45 years and has worked to acquire his own home. The concerns which the respondent experienced when the rural station was sold have not materialised. The new owners have kept the respondent on and have indicated a preparedness to resume his employment when he is released from custody. The previous owner gave the respondent a reference in which he said that at times “Barker had complete access and control of the property on his own.” This is not without significance. The rural property runs sheep and cattle over a total area of 50,000 hectares.

35 The respondent suffers from high blood pressure and asthma both of which are controlled. Although it is apparent that he consumes significant quantities of alcohol it appears that he is not dependent on it. He does not smoke and denied that he uses any illicit substances.

36 Until this incident there was no evidence that the respondent had ever been violent to his wife. He had no prior convictions. His Honour accepted that he “regretted his behaviour and loved his wife” and … “genuinely believed his wife had been unfaithful.” His Honour found that before leaving the house after his arrest his actions were to “grab his wife, kiss her, and tell her he was sorry.”

37 His Honour indicated that he would make a finding in relation to “a malicious wounding charge”. I assume that his Honour was referring to the charge of “reckless wounding.” His Honour said that when taking account of the objective seriousness of the offence it fell below the mid range of seriousness and that the subjective features would take the offence below the mid range to a point “half way between a trivial offence and a mid range offence.”

38 His Honour remarked on the need for deterrence both general and personal to be reflected in sentences for domestic violence. However, his Honour concluded that the respondent’s actions were an aberration and that he was most unlikely to reoffend diminishing the need for a sentence reflecting personal deterrence. When passing sentence his Honour emphasised that “full weight must be given to the competing public interest and rehabilitation of the offender and avoidance of recidivism.” His Honour concluded that a period of full time imprisonment was inevitable and “that a short sharp period of custody is called for.” His Honour found special circumstances and although a prison term was necessary to punish the offender in other respects the respondent would have been better left in the community to rehabilitate himself.

The Crown submissions

39 The appellant submitted that his Honour had made a number of factual errors and, because of those matters and other errors, this Court should intervene and impose a more significant sentence. Although I would have been sceptical about the issue, as a matter of fact his Honour’s finding that the respondent did not know that the shotgun was loaded was open to him. There was no evidence to the contrary. However, that finding was contrary to the plea which the respondent had entered. It was open to his Honour to find that the respondent obtained the shotgun from the rural station rather than from another location. The Crown submitted his Honour’s finding that it was unlikely that the respondent used the word “revengeful” without it being suggested to him was not open. I am not persuaded that his Honour erred in this respect but if he did, it was an error without consequence.

40 Apart from these factual matters the appellant submitted that his Honour erred in his findings with respect to the objective seriousness of the reckless wounding offence and as a consequence imposed a sentence which was manifestly inadequate. A similar submission was made in relation to the offence relating to the possession of a loaded firearm. It was further submitted that his Honour erred by ordering that the sentences should be served concurrently.

41 I have previously related some of his Honour’s remarks in relation to the offence of reckless wounding. The sentencing judge concluded that the objective factors brought the offence within the lower rungs of the mid range of seriousness. His Honour then found that the subjective features of the respondent had the consequence that the offence was “about half way between a trivial offence and a mid range offence.” By considering subjective matters to be relevant to the objective seriousness of the offence his Honour erred.

42 The principles which must be considered when the penalty for an offence includes a standard non-parole period were summarised by Kirby J in MLP v R (2006) 164 A Crim R 93 at 33-34 where his Honour said:

“The non parole period is, of course, but one aspect of the sentence. In respect of an offence where there is a standard non parole period, the sentencing Judge must at some point address the following issues when imposing a custodial sentence:
First, what term of imprisonment is appropriate having regard to the offence and the circumstances of the offender? Guidance may be provided by the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct (cf R v Trevenna (2004) 149 A Crim R 505, per Barr J; R v George (2004) 149 A crim R 38).
Secondly, should the offence be characterised as being in the mid-range of objective seriousness? That task should be approached in the manner suggested by Simpson J, intuitively evaluating the objective seriousness of the offence and looking to those matters in s 21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s 21A which form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid-range. If the offence falls within the mid-range, the standard non parole period should apply, subject to the remaining issues.
Thirdly, are there other reasons in the matters identified in s 21A (relating to the offender) for departing from the standard non parole period? The subjective case of the offender (issues such as youth or prospects of rehabilitation (s 21A(3)(h)) may furnish reasons for departing from the standard non parole period. It should be noted that s 21A(1) provides that the matters specifically identified in the subparagraphs of s 21A are in addition to any other matter that the Court is required or permitted to take into account under any Act or rule of law. The fact that the offender may need to serve his sentence in protection, for instance, although not mentioned in s 21A(3), may be taken into account in determining whether there should be a departure from the standard non parole period.
Fourthly, there is the issue of special circumstances. Ordinarily, the non parole period bears a relationship to the term of the sentence defined by s 44(2) of the Crimes (Sentencing Procedure) Act, that is, the non parole period must not be less than three quarters of the term, unless there are special circumstances. The sentencing Judge is therefore required to address that issue. If there is to be an adjustment, then it must not so deplete the non parole period that it is reduced below the minimum term which justice requires the offender to serve (Power v The Queen (1974) 131 CLR 623 at 628; Bugmy v The Queen (1990) 169 CLR 525; 47 A Crim R 433).

There is no requirement that these issues be addressed in any particular order (R v Moffitt (1990) 20 NSWLR 114; 49 A Crim R 20), although the issues are obviously inter-related such that a decision on one aspect may have implications for another. In addressing these issues, the sentencing Judge should, however, bear in the mind the following advice provided in R v Way:
‘The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45]) cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.’ “

43 MLP followed the consideration given to the relevant principles in R v Way (2004) 60 NSWLR 168 particularly at [122]. When for reasons which may include a plea of guilty, the standard non-parole period is not of direct relevance it nevertheless remains relevant as a guidepost in the sentencing process (R v Jenkins [2006] NSWCCA 412 at [27]) see also R v Tory and Tory [2006] NSWCCA 18 at [42].

44 The appellant also submitted that his Honour failed to properly evaluate the objective criminality of the offence of reckless wounding. The appellant emphasised that the attack upon his wife by the respondent was “prolonged, escalating, frightening and inherently dangerous due to her poor health”. After hitting her with the plastic pipe he threatened to kill her with a gun. He hit her over the head with the stock of the rifle not once but twice and bound her by the neck to the bed head with a rope. He had invaded her bedroom for the purpose.

45 It was submitted that his Honour had placed too much emphasis on the nature of the wounds inflicted when coming to his decision and that apart from the wounds there were other significant matters relevant to the objective seriousness of the offence.

46 The appellant further submitted that his Honour had made another significant error when considering the penalty for the offence contrary to s 93G. One of the elements of the offence was that he possessed “a loaded gun.” Accordingly, by his plea he admitted that he knew that the gun which he pointed at his wife was loaded. However, as I have indicated previously his Honour found that the respondent did not believe it was loaded, a finding which was contrary to the effect of the plea.

47 It was further submitted that the sentencing process was flawed because of a failure by his Honour to comply with the principles of Pearce v The Queen (1998) 194 CLR 610 which requires the court to “fix an appropriate sentence for each offence and then consider the question of accumulation or concurrence as well, of course, as questions of totality.” It was submitted that rather than give separate consideration to the appropriate sentence in each offence his Honour merely defined the same penalty with the same commencing dates. It was submitted that accordingly his Honour failed to give separate consideration to each offence and consider whether they should be made wholly or partially concurrent. It was submitted by so doing his Honour failed to identify and impose a penalty which reflected the gravity of the s 93G offence.

48 In my opinion the complaints which the appellant makes in the respects which I have identified are all to varying degrees justified. The plea acknowledged that the respondent knew the gun was loaded. Furthermore, as I have indicated his Honour failed to appropriately consider the matters relevant to the objective seriousness of the offences. I am satisfied that both offences were serious and leaving aside the respondent’s subjective circumstances both of them justified a significant prison term. The respondent violently attacked his wife, inflicted physical injuries and put her in fear of her life. She, effectively defenceless, was tied to her bed and humiliated. The courts must be mindful of the very serious impact which actions of this nature can have on the victim. In many situations, including the present case, women are vulnerable and effectively defenceless against violent attacks from men with whom they have a domestic relationship. The courts must ensure that the punishment imposed is adequate to both protect persons and deter others from perpetrating similar offences.

49 Although his Honour found the subjective circumstances of the respondent were of significance they could not ameliorate the seriousness of the offences to the degree identified by the sentencing judge.

50 I am also satisfied that the criticism which the appellant made of the individual sentences is justified. His Honour did not approach the sentencing task as required by Pearce. There is no indication that he separately evaluated each offence determined the appropriate individual sentence and then considered issues of totality.

51 Notwithstanding these matters I have come to the conclusion that this is an exceptional case justifying this Court in the exercise of its residual discretion dismissing the appeal.

52 This Court has a residual discretion to refuse to intervene even when error has been established. For this purpose the court may look at matters which have occurred since the original sentence was imposed. In R v Todorovic [2008] NSWCCA 49 at [28] James J, with Mason P and Hislop J agreeing, said:

“On the hearing of Crown appeals against sentence the Court routinely admits evidence of matters occurring after the date of the original sentencing, on the limited basis that the evidence can be taken into account, if the Court proceeds to a re-sentencing of the respondent (and, indeed, in deciding the prior question whether, although a ground of appeal against sentence has been made out, the Court should, in the exercise of its discretion, decline to allow the Crown appeal).”

53 The factors that bear upon the exercise of the discretion are varied. The health of the respondent is one such factor (Regina v Hansel [2004] NSWCCA 436.) In the case of R v Yang [2002] NSWCCA 464; 135 A Crim R 237 at [45] Carruthers AJ, with Simpson J and Mathews AJ agreeing, said:

“Bearing in mind the serious nature of the offence which the respondent committed and giving full weight to the subjective circumstances including her prior good character, it is necessary to conclude that a full time custodial sentence was called for. The resolution of this matter by the imposition of a recognisance was, if I may respectfully say so, manifestly inadequate.
However, that said, the question arises whether, bearing in mind the evidence now before this Court, it should dismiss the appeal in the exercise of its residual discretion. In view of the fragile state of the respondent’s health, which may in some way have contributed to the commission of the subject offence, I am of the view that this is a case which calls for the exercise of the Court’s residual discretion. I do not agree that a community service order is an appropriate alternative.
Justice must be tempered with mercy, and, accordingly I would propose that the appeal be dismissed.”

54 In the present case the respondent in an apparently drunken rage and provoked by talk that his wife was unfaithful to him lost control of himself committing the crimes to which he pleaded guilty. The offences were entirely out of character. His Honour found that the respondent is genuinely remorseful and will not reoffend.

55 There is evidence before this Court which was not objected to by the appellant (see R v Deng Mading Deng (2007) 176 A Crim R 1 at [28]) which indicates that the respondent has suffered greatly from his incarceration. He has been used to living and working on extensive rural properties outside of Bourke. He is not used to physical constraints and has been fearful for his safety within the prison system. He has been removed from his usual environment and transported to a corrective establishment in the Sydney region. He has attempted to commit suicide.

56 An unusual feature of the respondent’s circumstances is the support that he has received from his employer. The evidence before the sentencing judge was that he has for many years been given a position of very considerable responsibility in the management of his employer’s very large rural holding. Notwithstanding his offending his employers, a husband and wife, have continued to support him and will continue to employ him on his release from custody. Testament to their determination to assist the respondent’s rehabilitation was evident from their presence in court during the hearing of the appeal. If this Court was now to intervene and impose a further term of imprisonment it is likely that his adverse response to his incarceration will continue and maybe increased. His prospect of effective rehabilitation may be lost.

57 To my mind the total sentence imposed on the respondent was excessively lenient. A total sentence of 4 years with a 2 year non-parole period would have been more appropriate. But for my conclusion that this is a case when the residual discretion should be exercised a sentence of that order would have been appropriate. However, for the reasons I joined in the orders dismissing the appeal.

58 R A HULME J: I agree with the reasons of McClellan CJ at CL for the dismissal of the Crown appeal.

I agree with the reasons of McClellan CJ at CL for the dismissal of the Crown appeal.

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