R v Boney - [2008] NSWCCA 313

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v BONEY [2008] NSWCCA 313

FILE NUMBER(S):
2008/0588

HEARING DATE(S):
2 June 2008

JUDGMENT DATE:
17 December 2008

PARTIES:
Regina
Douglas Charles BONEY

JUDGMENT OF:
McClellan CJ at CL Hulme J Hidden J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
07/31/0039

LOWER COURT JUDICIAL OFFICER:
English DCJ

COUNSEL:
Crown: J Dwyer
Appellant: H Dhanji

SOLICITORS:
Crown: Solicitor for Public Prosecutions
Appellant: Legal Aid Commission

CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

TEXTS CITED:

DECISION:
(i) Allow the Crown appeal;
(ii) Quash the sentence imposed by English DCJ on the Respondent on 23 January 2008 in respect of the offence of maliciously inflict grievous bodily harm;
(iii) In respect of that charge, sentence the Respondent to imprisonment for a non-parole period of 4 years and 6 months commencing on 23 March 2007 together with a further period of 3 years.
(iv) Record as the date upon which it appears to the Court that the Respondent shall become eligible for parole, 23 September 2011.

JUDGMENT:

- 27 -

IN THE COURT OF
CRIMINAL APPEAL

2008/0588
McCLELLAN CJ AT CL
HULME J
HIDDEN J
Wednesday, 17 December 2008

R v Douglas Charles BONEY

Judgment

McCLELLAN CJ AT CL: I agree with Hulme J.
HULME J: On 23 January 2008 the Respondent to this Crown appeal was sentenced by English DCJ in respect of 3 charges. They, and the sentences imposed were:-
Detain for advantage Loretta Tighe – Imprisonment for a fixed term of 18 months commencing on 23 September 2006.
Assault Loretta Tighe, occasioning her actual bodily harm – Imprisonment for a fixed term of 9 months commencing on 23 September 2006.
Maliciously inflict grievous bodily harm on Geoffrey Tighe with intent to inflict grievous bodily harm – Imprisonment for 6 years, including a non-parole period of 3 years, both such periods commencing on 23 September 2006.
The appeal is in respect of only the third of these matters, the Crown contending that the sentence was manifestly inadequate. Pursuant to s33 of the Crimes Act the offence carries a maximum period of imprisonment of 25 years. It is also an offence that, under s54A et seq of the Crimes (Sentencing Procedure) Act, has a standard non-parole period of 7 years.

The circumstances of the offences were as follows. On the 22 September 2006 the Respondent saw his former de facto wife Loretta Tighe, in the street in Moree, chased her, took hold of her in a bear hug and carried her away towards a house. On the way he slapped her across the face, causing bruising and swelling to her right eye. The Respondent took Ms Tighe to his cousin’s house where she remained with him overnight. These facts formed the basis of the charges of detain for advantage and assault occasioning actual bodily harm.
Early the following day, 23 September 2006, Geoffrey Tighe, the brother of Loretta Tighe attended, with a number of members of his family, at the premises to which Loretta had been taken by the Respondent. Mr Tighe entered the yard and the Respondent, carrying two large kitchen knives, approached him. Mr Tighe retreated onto the footpath removing his shirt and, although unarmed, said to the Respondent “you are not man enough to fight now”. The Respondent, with a knife in each hand, rushed at Mr Tighe stabbing him in the stomach with one knife and slashing him across the chest with the other. Mr Tighe was taken to hospital where the chest wound was found to be only superficial and was stitched. The wound to the abdomen tracked just below Mr Tighe’s heart and caused the loss of about 3 litres of blood. Indeed, on his arrival at hospital his blood pressure was un-recordable.
Almost immediately after the incident the Respondent presented himself at the Moree police station and later participated in a recorded interview. In the course of that interview the Respondent made some admissions. The Respondent alleged that before he himself emerged from the house to the yard he announced “if he don’t get out of the yard, I’m gunna stab him”. The Respondent also said “I was angry cause me and him don’t get along”, “I didn’t mean to stab him to kill him” and “I just meant to stab him to get him away from me and that you know. Big noting himself and mouthin off.” The Respondent also asserted that he had been drinking all day. It may be inferred he meant the previous day.
The Respondent was arrested that day and has been in custody since.
In support of its claim that the sentence imposed on the Respondent for the third offence referred to above was manifestly inadequate, the Crown drew attention to what it submitted were 6 discrete errors by her Honour:-
(i)A failure to identify reasons for departure from the standard non-parole period;
(ii)A 25% discount allowed for the plea of guilty in relation to the charge of maliciously inflict grievous bodily harm with intent to do grievous bodily harm was not warranted;
(iii)A starting point of 8 years stated by her Honour was disproportionate to the objective seriousness of the offence, and appears to have been based on her mathematical calculation of the head sentence extrapolated from the standard non-parole period;
(iv)The variation of the statutory ratio of the non parole period to the total sentence to reduce it to 50% based on the finding of special circumstances was excessive, and suggestive of “double counting”;
(v)A failure to consider specific and general deterrence in light of the respondent’s criminal record;
(vi)The failure to partially accumulate the sentence on those sentences imposed on the other offences.
Remarks of her Honour relevant to these matters include the following:-
“Shortly after the incident the offender presented himself to the Moree Police Station with his uncle and he was arrested. The offender participated in a recorded interview and made admissions during the record of interview to the matters for which he now faces sentences. Extracts from the record of interview are contained within the Crown papers tendered…
(The Respondent’s) aggressive responses to situations is said to be aggravated by his drug and alcohol abuse. The psychologist reported an intention to return to Moree upon his release from custody. When he gave evidence before me he said he now did not intend to return to Moree but rather to remain in Sydney where his prospects for employment would be greater…
(The Respondent has) a record which entitles him to no leniency whatsoever. His Counsel seeks to rely on the principles enunciated in Fernando’s case. Whilst it may well be that the offender in the past was entitled to some leniency in that regard, his criminal antecedents are now such that little weight can be given to those principles, despite the offence being one of the type envisaged by the Court of Criminal Appeal in those decisions.
The offence of maliciously inflicting grievous bodily harm with intent is an offence, as I have said, which attracts a standard non-parole period of 7 years imprisonment following upon a guilty verdict, after trial for an offence said to fall within the mid range of objective seriousness. That represents a total term of 9 years and 4 months, absent a finding of special circumstances.
That of course is a guidepost and it is not to be ignored. Here of course there has been a plea of guilty and that is a matter which may result in a finding that an offence falls below the mid range of objective seriousness as envisaged by the cases of the Court of Criminal Appeal in Way…
This was not a random attack, but rather one which was the culmination of a long standing family feud fuelled by alcohol and the effects of marijuana. The Crown also submits that it is an offence which falls below the mid range of objective seriousness. The Crown submits that the victim went to the house where the offender was to be found and was, in effect, taunting the offender. The actions of the victim on the night in question do not, in my view, amount to provocation, lessening the moral culpability of the offender. The offender armed himself full well intending to use the knife or knives upon the victim.
The victim sustained life threatening injuries…
Whilst the emotional sequelae might not be able to be found to be substantial as required under s21A(2)(g) in the circumstances, it clearly remains significant. It is of course not only the emotional harm which is to be considered, but the injury itself. It was certainly substantial, although I note that that is an element of the offence.
These offences did rise in the course of a domestic relationship, and that is something which increases the objective seriousness of them. They arise in circumstances where the offender has a significant record for violence and has been the subject of apprehended domestic violence orders in the past. I am not persuaded that he was in any way provoked by Ms Tighe as a result of the accusations made that he was “running around with girls”. She was quite clearly within her right to complain about his abuse of alcohol.
In mitigation the offender has pleaded guilty. He made immediate admissions to police. His pleas were entered when the additional charges to which I’ve referred earlier were not proceeded with via the Department of Public Prosecutions. In the circumstances it is appropriate to allow him to full discount for his pleas and I will do so. The pleas have significant utilitarian value. They demonstrate contrition and I allow him a twenty-five percent discount on each plea.
I am asked to find that the offender is truly remorseful and contrite. Whilst I find that he made immediate admissions and he says he accepts fully responsibility for his actions, I do not accept him as being truly remorseful and contrite. He appears to have no empathy for his victim. His victim remains a member of a family with whom this offender and his family have been in a long standing feud.
His prospect for rehabilitation are only fair, he has a significant problem with drugs, alcohol, anger and anti-social behaviour, he has been placed under supervision in the past, nothing seems to have assisted him thus far. Certainly deterrent sentences do not appear to have achieved a reduction in his anti-social behaviour or indeed his violence.
This offender is no longer a young man, he is now 37 years of age. He knew full well that the consequences of his actions would be, even if his thinking at the time may have been blurred by drugs and alcohol which I doubt. It should be borne in mind of course this offence took place in the early hours of the morning on the day after he had been drinking. He had a period of sleep prior to the commission of the offence and it cannot be said in those circumstances that the offence was committed in a total haze of drunkenness. It may well be he was suffering the effects of a hangover, however, at the time he attended the police station shortly after, he described himself as not being affected by alcohol. He can gain no comfort in that regard as a result. Only sentences of imprisonment will satisfy the requirements of general and specific deterrence.
I find the offence committed against Mr Tighe is one falling within the mid range of objective seriousness for the reasons to which I have referred. I have taken into account the objective seriousness of the actual assault its sequelae and the background of the offender which may explain in part, while the offence was committed. I am not persuaded however that the background of the matter is such as would reduce the moral culpability of the offender…
I am asked to find special circumstances. It is conceded by the Crown that such a finding would not be inappropriate, and that the offender is in need of a lengthier than normal period on parole. No pre-sentence report was ordered addressing such issues, however, in the opinion of the psychologist, the offender does require extensive post release supervision and assistance and in the circumstances I will make such a finding.
Had the malicious wounding proceeded to trial, I would have imposed a head sentence of 8 years imprisonment....
You are convicted that you on 23 September 2006 at Moree did maliciously inflict grievous bodily harm to Jeffrey Tighe with intent to inflict grievous bodily harm. You are sentenced to a non-parole period of 3 years commencing the 23 September 2006, expiring on 22 September 2009. You are sentenced to a total term of imprisonment for six years commencing 23 September 2006, expiring on 22 September 2012. Your are eligible for release to supervised parold on 22 November 2009.
I have had regard to the principles of totality the sentences are to be served concurrently, they arose out of one course of criminal conduct.”
As counsel for the Respondent pointed out at the conclusion of these remarks, her Honour was in error in stating that the Crown had submitted that the offence fell below the mid-range of objective seriousness. What the Crown had submitted was that the offence fell within the mid-range, although if her Honour concluded that it was not, it should be found to be just below that mid-range.
Ground 1
Failure to identify reasons for departure from the standard non-parole period;
Section 54B(4) of the Crimes (Sentencing Procedure) Act provides:-
The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account”.
In R v Knight; R v Biuvanua [2007] NSWCCA 283 Howie J said:
“This Court has repeatedly noted that it is insufficient compliance with the section merely to state the offender has pleaded guilty”.
It is clear from what her Honour did say that the 6 year term of the total sentence imposed on the charge the subject of appeal, was arrived at by discounting the 8 years head sentence she said she would have imposed if the matter had proceeded to trial by 25% in recognition of the Respondent’s plea, and that the division of the 6 year term so as to produce a non-parole period of 3 years followed on from a finding of special circumstances in that the Respondent needed extensive post release supervision and assistance.
Thus, there was at least partial compliance with the requirement of s54B(4). However, no reason was given or appears as to why her Honour chose as her starting point 8 years, particularly as she found that the offence against Mr Tighe fell within the mid-range of objective seriousness and that she was not persuaded “that the background of the matter is such as would reduce the moral culpability of the offender”.
This ground is made out.

Ground 2
A 25% discount allowed for the plea of guilty in relation to the charge of maliciously inflict grievous bodily harm with intent to do grievous bodily harm was not warranted;

In amplification of her Honour’s cryptic remark to the effect that “In the circumstances it is appropriate to allow him the full discount for his pleas ...” it may be noted that, according to statements made without dissent by counsel for the Respondent during the sentencing proceedings before English DCJ, the Respondent was committed for trial on 20 February 2007. A trial listed to be heard in Moree was vacated because the local police feared that they might have trouble keeping the peace between the families of the Respondent and the Tighes if that trial proceeded. A trial then commenced in Sydney but on the first or second day counsel then appearing for the Respondent felt obliged to withdraw because of allegations by Ms Tighe that may have resulted in counsel becoming a witness.
Originally the Respondent had faced 2 further charges of sexual intercourse with Loretta Tighe without her consent. On 9 October 2007 a further indictment was presented which, in addition to the 3 charges for which the Respondent was sentenced, contained a count that alleged the aggravated form of detain for advantage. The Respondent pleaded not guilty to that further charge, guilty to the 3 in respect of which he was eventually sentenced and the Crown accepted those pleas in full satisfaction of the indictment. The matter was stood over to 6 December 2007 for sentence. The hearing on sentence occurred on 18 January 2008.

In the course of his submissions the Crown Prosecutor who appeared before English DCJ referred to some of this history, observed that when he became involved it was apparent that the sexual intercourse matters were strenuously denied by the Respondent, that “it then became a matter of plea negotiation that the offender pleaded guilty to the offences now before your Honour on the basis that the sexual intercourse without consent matters were not proceeded with” and that “Your Honour could well find that in the circumstances of this particular case, the offender pleaded guilty at the first available opportunity.”
These remarks, and her Honour’s approach, reflect disregard or ignorance of what has been said in numerous decisions of this Court. In R v Thomson and Houlton (2000) 49 NSWLR 383, the guideline judgment dealing with the topic of discounts for the utilitarian value of guilty pleas, the Chief Justice with the concurrence of the other members of the Court said, at [152] et seq:-
“In my opinion, the appropriate range for a discount is from 10-25 percent. The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge.
There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
(ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial.”
Later, the Chief Justice made clear that the discretion was not unbridled but subject to appellate review.
In R v Harmouche [2005] NSWCCA 398, with the agreement of the other members of the Court, I said
“That said, the 25% discount for the Respondent’s plea was unduly generous. In giving it his Honour seems to have made a mistake commonly seen in this Court that because a plea was entered at the earliest opportunity (commonly shortly after the Crown reduces a charge) an offender is entitled to that discount. Such an approach is to misread R v Thompson and Houlton (2000) 49 NSWLR 383 and to ignore the rationale for a discount of that degree. The Chief Justice made it clear, at [154-5],that the rationale for a 25% discount was the extent of the utilitarian benefit and the complexity of evidence gathering and of any trial which was avoided. Certainly his Honour made reference to a plea being entered at the earliest opportunity but that was in the context to which I have referred and where his Honour was obviously contemplating the committal stage of criminal proceedings where the community would be saved the costs associated with prosecution of the case from (the beginning of) that stage.
...
Albeit the extent of any discount is a matter in which a sentencing judge has some discretion - although as R v Thompson and Houlton at [159] makes clear, one subject to appellate review – where the rationale for a discount as high as 25% does not exist, a discount of that degree should not be given.’

In R v Stambolis [2006] 160 A Crim R 510 at [11], Howie J observed:-
“Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity.”
Other cases to similar effect are include R v Sy [2003] NSWCCA 291 and, though given after the sentencing of the Respondent, R v Veale [2008] NSWCCA 23.

It is true that in R v Thomson and Houlton the Chief Justice referred to exceptional cases and in the paragraph following that I have quoted from R v Stamboulis, Howie J went on to remark:-
“I accept that there may be exceptional cases, where as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it”
However, there was nothing exceptional about this case. The fact that the victims of all charges were members of the Tighe family did not so connect them as to justify the Respondent in pleading not guilty to the charge of inflicting grievous bodily harm merely because he wished to deny the sexual intercourse or other offences involving Loretta Tighe. One suspects the denial of guilt on the charge involving Geoffrey Tighe was merely a bargaining tool to be used in the plea negotiations that occurred, but whether that be so or not, the plea to that charge was entered at a stage so late that it justified no more discount than one at, or close to, the bottom of the range stated in R v Thomson and Houlton.
Of course account must also be taken of the Respondent’s admissions to police when at the police station shortly after the offence. In R v Thomson and Houlton (2000) 49 NSWLR 383 at [140], Spigelman CJ remarked that:
“Where the accused’s own disclosure or confession is the basis of the strong Crown case, this should be taken into account with respect to the utilitarian benefit. Indeed, such conduct should be regarded as the earliest possible timing for a plea.”
His Honour did not explain how this approach should be reconciled with a plea of not guilty maintained until late in the proceedings, but when regard is had to the basic rationale for the discount referred to in R v Thomson and Houlton, viz. utilitarian value, it is clear that his Honour did not mean that when all the effort, cost and time resulting from a not guilty plea being maintained until, say, the day of trial occurs, nevertheless a full discount should be allowed. After all, admissions sometimes are not allowed into evidence and sometimes are not sufficient to achieve a conviction.
In light of the Respondent’s admissions it would be appropriate to allow something more than the bottom of the range of discounts and in this case I would regard something of the order of, but not less than 15% as appropriate.
In so concluding I put to one side the erroneous concession of the Crown prosecutor. Of course, this being a Crown appeal, in accordance with long-standing authority that is a matter that may operate against the allowance of the appeal or affect its result. However, it is more convenient to defer consideration of what weight should be given to the Crown Prosecutor’s concession until later in these Reasons.
Grounds 3 and 4
It is convenient to defer consideration of these grounds.
Ground 5
A failure to consider specific and general deterrence in light of the respondent’s criminal record;
There was no express reference to deterrence, general or personal, in her Honour’s remarks on sentence save in the passages, “Certainly deterrent sentences do not appear to have achieved a reduction in his anti-social behaviour or indeed his violence” and “Only sentences of imprisonment will satisfy the requirements of general and specific deterrence”. Combined with the leniency in the sentence, this certainly suggests inadequate attention to the topic.
The Respondent’s criminal record is substantial. He was born in 1970 and his first conviction was in 1983. He has been convicted in about 3 out of every 4 years since. He has over 30 convictions, including over 10 for offences of dishonesty (among these breaking entering and stealing, robbery and robbery in company), 10 for simple assault, 1 for assault with intent to have sexual intercourse and 5 for assault occasioning actual bodily harm. He has served numerous terms of imprisonment, most of the non-parole periods being of 6 or 9 months duration with the longest non-parole period being some 2 years.
Demonstrably the Respondent is a recidivist who has not learnt or been deterred from re-offending by the sentences so far imposed upon him. In the words of the majority of the High Court in Veen v R (No 2) (1987-1988) 164 CLR 465 at 477, he has “manifested in his commission of the instant offence a continuing attitude of disobedience of the law” in which case “retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted”.
Despite this long-standing authority, her Honour made no reference to these considerations, contenting herself in this regard with referring in detail to the Respondent’s record and the statement that the Respondent’s record “entitles him to no leniency whatsoever”. Such a limited approach was expressly repudiated by the High Court in Veen v R (No 2).
Nor did her Honour advert to the fact that the Respondent’s record meant that the offence was accompanied by the aggravating factor referred to in s21A(2)(d) of the Crimes (Sentencing Procedure) Act in that:-
The offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous conviction for serious personal violence offences).
The Respondent clearly came within this paragraph.
This ground is made out

Ground 6
The failure to partially accumulate the sentence on those sentences imposed on the other offences.

Each of the Respondent’s offences involved its own criminality. That the subject of the appeal was committed on a different day and against a different victim from the victim of the other 2 offences. The offences were in no sense but aspects of the one episode of criminality and her Honour was wrong in her statement that “they arose out of one course of criminal conduct”. It was submitted that the detention the subject of the first charge was but brief, the assault not serious and that the conduct in relation to the lesser offences was incidental to the primary offence. There is no conceivable basis for the last proposition and, given that the sentences imposed on the first 2 charges were not the subject of any appeal or criticism, it is preferable for this Court to judge the seriousness of the offences the subject to those charges by the sentences imposed.
Furthermore, no proper application of the principles of totality could justify making the 3 sentences imposed on the Respondent wholly concurrent. That this is so is apparent from what this Court said in R v Harris [2007] NSWCCA 130 at [44] – [45].
“Implementation of the principle of totality is perhaps the most common circumstance where concurrency of sentences is justified. However it is important that that principle be properly understood and applied. Perhaps the leading statement of it an extract form D A Thomas, “Principles of Sentencing” endorsed in Mill v R (1988) 166 CLR at 59 at 63:-
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is ‘just and appropriate’.”
Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples.”
This ground also is made out.
Ground 3
A starting point of 8 years stated by her Honour was disproportionate to the objective seriousness of the offence, and appears to have been based on her mathematical calculation of the head sentence extrapolated from the standard non-parole period;

As I remarked above, her Honour gave no reasons why she adopted as a starting point, 8 years, a period which contrasts with the 9 years and 4 months which her Honour derived by applying to the standard non-parole period of 7 years the normal ratio provided for in s44 of the Crimes (Sentencing Procedure) Act.
Her Honour found, and was entitled to find, that the offence fell within the mid-range of objective seriousness. The offence was premeditated, even if not for long, and involved a number of the circumstances of aggravation referred to in s21A of the Crimes (Sentencing Procedure) Act, circumstances that were not elements of the offence. These included:-
The use of a knife - see s21A(2)(c); R v Dickinson [2004] NSWCCA 457 at [23]; R v Deng [2007] NSWCCA 216;
The injury was substantial – s21A(2)(g); (being appreciably above that required for grievous bodily harm, this was an aggravating factor – See R v Chisari [2006] NSWCCA 19 at [22]) and
The offence involved a grave risk of death to the victim – s21A(2)(ib).
Mr Tighe has been left also with some long-term, albeit not substantial, emotional scarring from the offence. That Mr Tighe did not die is not a matter for which, within the context of the charge brought, the Respondent is entitled to any credit.
Accordingly, whether judged by that standard non-parole period of 7 years or the maximum penalty of 25 years imprisonment for an offence of the nature of that committed by the Respondent, her Honour’s starting point of 8 years was low.
Of course, the 8 year period also reflected the totality of matters, other than the Respondent’s plea, that her Honour was obliged to take into account on sentence. These are referred to in the passage I have cited from her Honour’s remarks and it is unnecessary for me to repeat them. It suffices to say that, apart from his early admissions, and his plea, none operate in mitigation of penalty.
To the remarks made in the immediately preceding paragraph, there is one possible qualification. As her Honour remarked, before her, reliance was placed on the principles enunciated in R v Fernando [1992] 76 A Crim R 58. The Respondent was born in July 1970. A forensic psychologist who assessed the Respondent prior to sentence recorded that he had had a disjointed education and left school in year nine although there were no mental health issues. The Respondent’s childhood was described as turbulent, unsettled and one where he was exposed to violence and substance abuse from an early age. The Respondent had continued to abuse alcohol and marijuana for much of his life, factors said to contribute to his aggressive responses to situations. He was said to lack the social and cognitive resources to cope with living in society.
Her Honour regarded the principles enunciated in R v Fernando as of little weight given the extent of the Respondent’s criminality. There is clear authority that supports her Honour’s stance – R v Hickey (unreported, NSWCCA, 27 September 1994) per Abadee J; R v Ah-See [2004] NSWCCA 202 at [21], and her Honour’s conclusion in this regard was not the subject of challenge in the appeal. Any relevance of the R v Fernando considerations is further reduced by her Honour’s findings as to the Applicant’s state of sobriety at the time of the offence.
Ground 4
The variation of the statutory ratio of the non parole period to the total sentence to reduce it to 50% based on the finding of special circumstances was excessive, and suggestive of “double counting”;
Altering the ratio between the non-parole and balance of term periods of a sentence from that of 3:1 embodied in s44 of the Crimes (Sentencing Procedure) Act as much as to result in a ratio of 50:50 is sufficiently unusual as to inspire examination. The only reason advanced by her Honour for finding special circumstances, and by inference for apportioning the full term of the sentence as she did, was the opinion of a psychologist that the Respondent required extensive post release supervision and assistance.
Given her Honour’s conclusion that the Respondent’s prospects of rehabilitation were only fair, that opinion provided but scant weight for making the balance of term as long as 3 years. It provided even less weight for reducing the non-parole period to as little as 3 years given the existence and duration of the standard non-parole period (with appropriate allowance for the Respondent’s plea), and the need for general and, particularly given the Respondent’s past criminal record, personal deterrence.
However, it is preferable to postpone further consideration of this topic until the issue of manifest inadequacy is dealt with. In the circumstances of this case and her Honour’s remarks, I do not find evidence of double counting.
Conclusion
Although the Crown has succeeded on most the individual matters upon which it relies, the question still remains whether the sentence of 6 years including a non-parole period of 3 years was manifestly inadequate. In aid of the submission that it was not, Mr Dhanji, counsel for the Respondent drew to the Court’s attention a number of prior decisions of this Court involving offences under s33.
In R v Jenkins [2006] NSWCCA 412 the offender had become upset by the victim laughing at the offender’s boyfriend on a dance floor. After an earlier confrontation, the offender shoulder charged the victim. After further words and while the victim was turned away the offender poured water over her and then drew her arm back and pushed a glass she was holding forward with such force that it broke in the area of the victim’s eye causing facial scarring and eye damage. After inflicting the injury the offender walked away, apparently indifferent to the injuries inflicted.
The prognosis for recovery of sight in that eye was extremely poor. There was a significant chance that the victim might require removal of the eye itself and there was a possibility that the damage to that eye would pose a risk of sympathetic ophthalmia which could affect the other eye. The effect on the victim’s life was substantial, including the fact that it was unlikely that she could continue a promising and lengthy career in the Police Service.
The offender was 19 at the time of the offence, had had difficulties in her upbringing and was regarded as having a strong subjective case. She had maintained employment since leaving school and at the time of sentence was in a stable relationship of 2 years duration. At the time of the offence she was suffering from bouts of “a major depressive disorder”, her depression being exacerbated by, inter alia, a large amount of alcohol she had consumed. She had no criminal record and since the offence she had abstained from alcohol, expressed remorse for her actions and been seeking counselling to manage her problems and anger. At the time of sentence, she was being treated for cervical cancer. She was regarded as unlikely to re-offend and having good prospects of rehabilitation. The trial judge concluded that the offence was “somewhat below the middle of the range of objective seriousness”.
This Court concluded that that finding was open to his Honour and although his Honour had erred in his approach to the standard non-parole period and the sentence of 5 years including a non-parole period of 2½ years was lenient, it was within the trial judge’s discretion. The members of the Court said that they would have imposed heavier sentences at first instance but dismissed the Crown appeal.
In R v Chisari [2006] NSWCCA 19 this Court allowed a Crown appeal in the case of an offender who had driven a vehicle at a police officer effectively obliging the officer to jump onto the bonnet of the vehicle. The offender then accelerated and the officer fell off. He suffered, inter alia, a displaced fracture of the right distal radius, a period of extreme pain, difficulty sleeping and recurring dreams of the incident.
The offender had a minor criminal record but no prior time in custody. The sentencing judge took the view that the offence was unplanned and the product of panic and assessed it as in the lower range of objective seriousness, a characterisation which Simpson J, with the concurrence of the other members of the Court, regarded as open.
Nevertheless this Court found latent and patent error in the original sentencing of the offender and sentenced him to imprisonment for 5 years including a non-parole period of 2½ years. The offender had been convicted after a trial.
In Matzick v R [2007] NSWCCA 92 this Court dismissed an appeal against a sentence of imprisonment for 5 years and 4 months, including a non-parole period of 2 years and 10 months. The offender had gone into a shop on the ground floor of the building in which she lived. The shopkeeper, who knew her, thought she looked unwell and offered her some milk. The offender said she preferred ice-cream and the shopkeeper gave her this. The offender then went behind the counter, produced a small knife and pointed it at the shopkeeper. The latter, who had limited English, did not understand. A struggle ensued in the course of which the offender stabbed the shopkeeper to the left hand side of the neck and to the left rear of the neck. Police arrived. The victim underwent surgery and remained in hospital for 4 days.
The offender, who pleaded guilty and was given a 25% discount for doing so, was 21 at the time of the offence and had had a tragic past. She had left school at about 14 and then fell under the influence of a series of older men who abused and exploited her and each of whom was involved with illicit drugs. She herself became an addict and was grossly affected by drugs at the time of the offence. She had only one prior conviction, for possession of drugs, for which she was placed on a bond. She reported 3 prior suicide attempts and after the subject offence she was diagnosed as suffering from a personality disorder with borderline features, depression and auditory hallucinations although in the view of this Court that diagnosis did not entitle the offender to any reduction in sentence. While the offender had some prospects of rehabilitation, they did not seem to be good.
In R v Deng [2007] NSWCCA 216 this Court in the exercise of its discretion, declined to interfere with a sentence of 3 years, including a non-parole period of 2 years, such sentence to be served by way of periodic detention. Although the victim had suffered 4 stab wounds in an unprovoked attack, 2 of which wounds had punctured his spleen and lung, the sentencing judge had characterised the offence as above low level but below mid-level, a description this Court said was open. The circumstances leading to the offence and of the offender were singular and as this Court did not indicate what sentence would have been appropriate, I do not find the case of any assistance here.

In R v Ferrer [2008] NSWCCA 104 the offender had pleaded guilty to maliciously inflicting grievous bodily harm by stabbing the victim with a pair of scissors once in the abdomen, 4 times in the back and once behind the left ear. The offender had encouraged the victim, a friend, into a car driven by a third person, and then confronted him with suspicions that the victim had stolen some possessions of the offender. According to the offender the exchange that followed, which included the victim admitting and then denying the theft, made him angry. He invited the victim to get out of the car and fight. The victim declined, the offender re-entered the rear of the car to confront the victim. The offender said that his anger increased when the victim produced the scissors and tore a chunk out of the offender’s hand with them. The offender said that his attack on the victim occurred only after he managed to wrest the scissors from the victim. It seems that the offender desisted of his own volition.
The sentencing judge concluded that he could not reject the possibility that it was the victim who had produced the scissors but observed that the context of the events was the offender’s aggression. He found that the attack was not premeditated but spontaneous in the context of the offender’s desire to avenge the loss of his property and assessed the offence as falling “somewhat below the mid-range”. A discount of 10% was allowed for the offender’s plea.
Ferrer was 24 at the time of the offence, he had had difficulties in his childhood and had commenced to use heroin and amphetamines at the age of 13. He was on the methadone program at the time of the offence. He had a criminal history largely consisting of convictions for possession of prohibited drugs and offences of dishonesty. He had been imprisoned once, for 3 months, for the supply of drugs. He had one conviction for having custody of a knife in a public place but no convictions for violence.
This Court found that the sentencing judge’s assessment of the objective seriousness of the offence was open to him, and that the sentence of 4 years including a non-parole period of 2 years, while lenient, was not unreasonable or plainly unjust and dismissed a Crown appeal. In so concluding the Court was clearly influenced by the earlier decisions to which I have referred.
The Crown was invited to respond to these authorities and directed the Court’s attention to 3 further decisions. In Ilioski v R [2006] NSWCCA 164, the offender, having been involved in a brawl with a number of others earlier, returned to the fray armed with a knife and effectively invited others to “have a go now”. The offender then closed on the victim and slashed him. There were at least 6 wounds, the most serious being to the front of the victim’s neck with an associated tracheal injury requiring urgent cardiothoracic surgery. A sentence of 4½ years including a non-parole period of 2½ years was imposed - a sentence that was said by this Court to be within the appropriate range. However, the charge in that case was one under s35 of the Crimes Act where the maximum penalty is 7 years and, except insofar as the case suggests that the sentences in the cases relied on by the Respondent were lenient, it provides but limited assistance.
In Ghazi v R [2006] NSWCCA 320 the offender had become involved in a confrontation. He commenced to leave the scene swearing and aggressively threatening the physical safety of the victim. However, he turned around and went back to the victim. A further confrontation occurred during which the offender produced a knife. Things escalated over a short period and then the offender commenced to stab the victim. The latter received 7 stab wounds, 2 each to the back and stomach and one to each of his ribs, right and left forearm. The most serious punctured his liver resulting in a large loss of blood. The victim required 2 operations but his prognosis for recovery was good.
The offender pleaded guilty and a discount of 20% was allowed on that account. He had some prior convictions, the only ones material being one for assault and one for custody of a knife in a public place. He had never previously been incarcerated. The offender suffered from epilepsy, a history of substance abuse and mental state disturbance including an underlying paranoid personality. Although the report reveals little detail, it appears that evidence was placed before this Court of an attack on the offender while in custody and as to the effect of that attack on him.
Taking the view that there had been patent error by the sentencing judge, this Court sentenced the offender to imprisonment for 9 years and 7 months (12 years less 20%) including a non-parole period of 5 years. Howie J, with the concurrence of Tobias JA, described the sentence as lenient.
In Wilmot v R [2007] NSWCCA 278 this Court declined to interfere with a sentence of 11 years including a non-parole period of 7 years on a offender who, in a premeditated and planned attack on a second husband of the offender’s previous wife, stabbed him a number of times. One of the wounds punctured one of the victim’s lungs, and another left him with permanent loss of strength and sensation in a hand. The sentence was cumulative, to the extent of 6 months on a sentence for another unconnected offence later in the day. The offender was assessed as suffering from a mental illness but the sentencing judge was not persuaded that this contributed to the commission of the offence.
His Honour concluded that the offender had a prospect of rehabilitation if his family relationships could be properly adjusted and he underwent psychiatric treatment. He was regarded as entitled to a discount of 25% for his plea. The sentencing judge had concluded that the offence was “well above the standard non-parole period and well above the mid-range in objective seriousness”. This Court regarded as aggravating that at the time of the offence, the offender was subject to an apprehended violence order in respect of the victim.
It is also appropriate to refer to the Judicial Commission statistics. As at the present they show for offences under s33:-
(i)of 82 offenders who pleaded guilty and were sentenced to prison, the head sentences ranged between 2 and 12 years, the median being 6 years and the non-parole periods or fixed terms ranged from 1 to 8 years, with the median being 3 years; and
(ii)of 23 offenders who pleaded not guilty and were sentenced to prison, the head sentences ranged between 4 and 14 years, the median being 8 years and the non-parole periods or fixed terms ranged from 2 to 10 years, with the median being 5 years.
Being but 5 cases out of about 105, the cases relied on by Mr Dhanji can hardly be regarded as representative. Furthermore, the cases referred to by the Crown demonstrate the dangers of this Court being tempted to rely on only a few cases cited by counsel for an offender and reinforce the Court’s long-held view expressed, for example in R v Campillo-Vaquere [2004] NSWCCA 271 at [77]:-
“This Court has said on many occasions that it is not a proper approach to sentencing to seek to compare a sentence under challenge directly with that imposed on another offender (who is not a co-offender) simply because the 2 offenders may have similar characteristics and may have committed similar crimes – see e.g. Morgan (1993) 70 A Crim R 368 at 371; R v Lawson (1997) 142 FLR 323 at 324, per Hunt CJ at CL; R v Speechley [2002] NSWCCA 300 at [39]; R v Trevenna [2004] NSWCCA 43 at [50, 89 and 99] … .”
The fact that a few cases, rather than one, are used does not make the situation better, unless it is also established that those cases are fairly representative.
Uninstructed by counsels’ reference to authority or the statistics, and putting aside the factors incidental to this being a Crown appeal and any question of adjustment in light of a finding of special circumstances it seems to me very difficult to justify a sentence that involves a non-parole period of less than about the statutory guide post of 7 years. Such mitigation as the Respondent was entitled to by reason of his plea is largely, if not more than, offset by his record of previous convictions whether on the basis that that record is an aggravating factor within s21A(2) or that it demonstrates that the Respondent is a recidivist and prior, much lesser, periods of incarceration have not been sufficient to deter his aggressive tendencies.
Such a conclusion cannot be reconciled with the cases relied on by Mr Dhanji which clearly argue for less. Of course, there are grounds of distinction between those cases and the present. In R v Jenkins the objective seriousness of the offence was described as “somewhat below the mid-range”, there was less or no premeditation, the offender did not have the Respondent’s record and had a far better prospect of rehabilitation. On the other hand, the injury was far more serious. In R v Chisari, the offence was regarded as in the lower range of objective seriousness, there was less or no premeditation, and the offender did not have the Respondent’s record. On the other hand, the offender had pleaded not guilty. In Matzick v R the offender did not have the Respondent’s record and there would seem not to have been the same degree of premeditation. In R v Ferrer the offence was assessed as falling “somewhere below the mid-range”, there was no premeditation and the offender did not have the Respondent’s record for violence.
Nevertheless, these matters are not sufficient to explain satisfactorily the difference between what seems to me appropriate here and the sentences imposed in the cases upon which Mr Dhanji relies.
Of course, the cases relied on by the Crown are also insufficient to be regarded as representative. They do, however, tend to show that my own inclinations are not outside the appropriate range. The statistics, though a blunt tool, argue in the same direction. In totality, I am satisfied that by comparison with both statutory guides, the 25 years maximum and the 7 year non-parole period for someone who had pleaded not guilty, the sentence imposed by English DCJ was manifestly inadequate. When one adds the fact that the sentence was made concurrent with a sentence of 18 months for an entirely separate offence, and the non-parole period was reduced to as little as 3 years, the matter becomes a fortiori.
There remains the question whether, this being a Crown appeal, this Court should interfere. I have already referred to a concession made by the Crown prosecutor before her Honour to the effect that the Respondent pleaded guilty at the first available opportunity.
Mr Dhanji also submitted that the Crown Prosecutor had conceded that the sentences could be made concurrent. That is not so. What occurred was that counsel for the Respondent, when dealing with the detain for advantage and assault chares had urged that “Any sentencing in respect of those matters would be dealt with on a concurrent basis arising essentially out of the same set of circumstances”. In response the Crown prosecutor is recorded as saying:-
“Your Honour I don’t cavil with any of my friend’s further submissions, that is in relation to the detain for advantage and assault occasioning actual bodily harm, I certainly would be urging that any sentence in relation to those matters, be other than concurrent.”
Mr Dhanji submitted that the word “not” had been omitted and should be understood as included immediately before the words “be urging”. The Crown did not concede this but the sense of the passage does seem to me to indicate that the word should be inserted. However, even on that assumption, it is clear that the concession of concurrency related to, and to only, the detain for advantage and assault charges.
Mr Dhanji also pointed to the passage of time since the Respondent was arrested on 23 September 2006, to the decisions of R v Spiers [2008] NSWCCA 107 and MRN v R [2006] NSWCCA 155 and to the remarks of Heydon JA in R v Hernando (2002) 136 A Crim R 451 to the effect that “the impact on the respondents of the uncertainty in the period between when the Crown gives notice of its desire to appeal and the time when the appeal is decided must be agonising”.
Undoubtedly undue delay does argue for some mitigation of punishment and, in some cases, has been sufficient to induce this Court to exercise its discretion against allowing a Crown appeal. In this case I am not disposed to place any significant weight on the delay between arrest and the Respondent pleading guilty on 9 October 1997. In the case of the charge the subject of the current appeal, that was an option he had open to him from about the first time he appeared in Court. I am disposed to give some weight to the delay after October but it remains important to retain proper relativity between that delay on the one hand, and on the other, the seriousness of the Respondent's offending and the importance of proper punishment.
Relevant also to the exercise of the discretion is the evidence contained in 2 affidavits filed on behalf of the Respondent. They indicate that the Respondent has made efforts to participate, and has participated, in a substantial number of courses calculated to minimise the risk of further offending and to improve his life skills. They also show that he has been employed while in custody and has had, and anticipates further, family contact. One of the affidavits, that of the Applicant, also addresses the impact of the Crown appeal on him.
Thus, quite apart from the general discretion in this Court not to interfere in a Crown appeal, there are 2 additional matters that argue against doing so. The concession by the Crown in the court below resulted in a discount of 25% rather than the 15% or so that should have been allowed for the Respondent’s plea. There is, in addition, the matter of delay. However, the difference between the sentence imposed and that which should have been imposed is gross. Only to a small degree can it be explained by the Crown concession below and in the circumstances the appeal should be allowed.
Nevertheless, in the exercise of this Court’s discretion, I propose the imposition of a sentence which is below the bottom of the range of sentences that should have been imposed at first instance. The Respondent is entitled also to the benefit of English DCJ’s finding of special circumstances and some alteration in the ratio of the non-parole period and balance of term on that account.
Accordingly I propose the following orders:-
(i) Allow the Crown appeal;
(ii)Quash the sentence imposed by English DCJ on the Respondent on 23 January 2008 in respect of the offence of maliciously inflict grievous bodily harm;
(iii)In respect of that charge, sentence the Respondent to imprisonment for a non-parole period of 4 years and 6 months commencing on 23 March 2007 together with a further period of 3 years.
(iv)Record as the date upon which it appears to the Court that the Respondent shall become eligible for parole, 23 September 2011.
HIDDEN J: I agree that this appeal should be allowed. I find it unnecessary to determine each of the grounds argued by the Crown. Certainly, the reduction of sentence for the plea of guilty was over generous and some measure of accumulation was called for. However that may be, I am persuaded that the sentence passed upon the respondent for this offence, particularly in the light of his criminal history, is manifestly inadequate.
I agree with the orders proposed by Hulme J.

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LAST UPDATED:
18 December 2008