R v Campbell
[2014] NSWCCA 102
•02 July 2014
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: R v Campbell [2014] NSWCCA 102 Hearing dates: 23 April 2014 Decision date: 02 July 2014 Before: Simpson J at [1]; Hall J at [44]; Harrison J at [45] Decision: 1. Appeal allowed;
2. In respect of the offence of assault occasioning actual bodily harm, sentence the respondent to imprisonment for 9 months, commencing on 27 January 2013 and expiring on 26 October 2013;
3. Quash the sentence imposed on the respondent in respect of the s 112(3) offence and in lieu thereof sentence the respondent to a term of imprisonment for 5 years commencing on 27 April 2013 and expiring on 26 April 2018, with a non-parole period of 3 years, expiring on 26 April 2016.
Catchwords: SENTENCE - Crown appeal against inadequacy of sentence - breaking and entering and committing a serious indictable offence in circumstances of special aggravation under s 112(3) Crimes Act 1900 - whether sentence inadequate having regard to a number of specified errors - whether due or proper regard given to standard non-parole period for s 112(3) offences Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999Cases Cited: Hiron v R [2007] NSWCCA 336
Martin v R [2011] NSWCCA 188
Micklesson v R [2009] NSWCCA 61
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179
R v Huynh [2005] NSWCCA 220
R v Kentwell [2013] NSWCCA 266
R v Rossi-Murray [2009] NSWCCA 177
R v XX [2009] NSWCCA 115
Shaw v R [2008] NSWCCA 58Simpson v R [2014] NSWCCA 14Category: Principal judgment Parties: Regina (Appellant)
William John Campbell (Respondent)Representation: Counsel:
V Lydiard (Crown)
I Nash (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission (Respondent)
File Number(s): 2013/26332 Publication restriction: Nil Decision under appeal
- Date of Decision:
- 2013-10-10 00:00:00
- Before:
- Payne DCJ
- File Number(s):
- 2013/26332
Judgment
SIMPSON J: I have read in draft the judgment of Harrison J. In a number of respects, I differ from his Honour.
The respondent pleaded guilty to two counts on an indictment. Count 1 charged an offence of breaking and entering a dwelling house and committing a serious indictable offence in circumstances of special aggravation. This is an offence against s 112(3) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for 25 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") a standard non-parole period of 7 years is prescribed. The "serious indictable offence" was an offence of intimidation, contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The circumstance of special aggravation was that the respondent was armed with a dangerous weapon. The dangerous weapon was a .22 calibre pump action rifle.
Count 2 on the indictment alleged an offence of assault occasioning actual bodily harm, an offence against s 59 of the Crimes Act. That offence carries a maximum penalty of imprisonment for 5 years. No standard non-parole period is prescribed.
Payne DCJ sentenced the respondent as follows:
Count 1: imprisonment for 3 years and 11 months, commencing on 27 January 2013, with a non-parole period of 1 year and 10 months, which will expire on 26 November 2014;
Count 2: imprisonment for a fixed term of 9 months, also commencing on 27 January 2013, and expiring on 26 October 2013.
It will be seen that the two sentences are to be served wholly concurrently.
Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions appeals against the sentence imposed in respect of the first count, asserting that it is manifestly inadequate. He also appeals against the second sentence, on the basis only that it was an error to order that it be served wholly concurrently with the first.
The facts
The facts have been fully set out in the judgment of Harrison J. The following outline of facts can therefore be relatively concise.
The respondent is the estranged husband of the principal victim of the offences, Kelly Campbell. Ms Campbell lived on a rural property near Glen Innes with her three children (all boys) and her partner, Michelle Wilson. The respondent is the father of the boys.
On 27 January 2013, Ms Campbell and Ms Wilson were due to return home from a visit to Ms Wilson's family in Queensland. The three children had been staying with a relative in Glen Innes. The respondent rode on a motorcycle to the property. He had with him a key to the gun safe in the residence which he had retained after separation from Ms Campbell. He concealed the motorcycle in a laundry at the rear of the premises, and broke into the residence through a closed but unlocked window. Using the key he had retained, he opened the gun safe, and removed a .22 calibre rifle. He obtained ammunition from a separate compartment and loaded the gun. He then waited for the return of Ms Campbell and Ms Wilson. They returned at about 1.25pm, and entered the house. The applicant pointed the barrel of the rifle at Ms Campbell's head. He said "Get in here, we need to talk". Ms Campbell resisted, and a struggle ensued. The gun discharged. The bullet hit the floor near where the respondent and Ms Campbell were continuing to struggle. After a time Ms Campbell was able to take control of the gun, and remove the remaining ammunition. Ms Wilson entered the room during the course of the struggle. She telephoned the emergency number but the respondent disconnected the call. Emergency services rang back and Ms Campbell told them what had happened. The respondent remained in the premises until police arrived.
As a result of the struggle Ms Campbell suffered injuries to a rib, and bruising to various parts of her body. This constituted the offence of assault occasioning actual bodily harm.
The respondent's personal circumstances
The respondent was 35 years of age at the time of the offences. He has a relatively minor criminal history, the most recent (and most serious) conviction on which was recorded in 2003. That was an offence of failing to comply with a ministerial direction (contravention of a total fire ban order). That it was of some seriousness can be gauged from the fact that a period of 9 months imprisonment was imposed, although execution of the sentence was suspended.
The respondent has had employment as a log cutter. His history is otherwise unremarkable. He has not used illicit drugs, and is a moderate consumer of alcohol. A number of testimonials spoke of his good character.
The respondent harboured concerns for the welfare of his three sons in the care of Ms Campbell. Both he and members of his family made a variety of allegations, to the point that the respondent sought the intervention of welfare authorities. Although the authorities became involved, the children remained in the care of their mother. It was (as the sentencing judge accepted) the respondent's concerns for his children that motivated the offences.
The Remarks on Sentence
The sentencing judge recounted the facts of the offences, drawn from an Agreed Statement. She noted the respondent's pleas of guilty, and that they had been entered at the earliest opportunity, and allowed, pursuant to the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, a reduction of 25 per cent on the sentence she would have otherwise imposed.
With respect to the offence against s 112(3) she said:
"This was an objectively serious offence. The seriousness with which the legislature views the offence, being an offence of specially aggravated break and enter - the view the legislature takes of behaviour of this type, combining as it does, a circumstance of aggravation and circumstance of special aggravation, is reflected in the maximum penalty, and the Crown is quite correct when the Crown says despite the strong subjective case and the particular circumstances of the case, that its objective seriousness cannot be lost sight of. There is also of course a requirement for general deterrence.
...
There are certain features that make this offence more serious and they were properly and correctly outlined by the Crown, the fact that the offence was committed in the home of the victim, the actual loading and discharging of the firearm - because the offence of having a dangerous weapon does not necessarily mean that the weapon is either loaded or discharged, so those two features make it more serious. There was a degree of planning here, he went there on a motorcycle, he had obtained the key that he knew was to the gun safe and he hid the motorcycle and got the gun out of the safe, loaded it and waited for his former partner to return."
Her Honour accepted that the respondent's conduct was motivated by the concerns for his children, and that there was a real basis for those concerns.
She found, as was conceded by the Crown, that special circumstances existed justifying departure from the statutory proportions between the head sentence and the non-parole period (Sentencing Procedure Act, s 44(2)).
She noted, in respect of the s 112 offence, that the standard non-parole period of 7 years was to be taken into account as "a marker or a guide post". She accepted that custody would be more onerous for the respondent because of the separation from his children that it would entail.
She concluded that the starting point for sentencing in respect of the s 112(3) offence, prior to reduction in recognition of the plea of guilty, was a sentence of imprisonment of 5 years and 3 months. This she reduced by 25 per cent, rounding off to give a result of a sentence of 3 years and 11 months. Application of the statutory proportion of 75 per cent would have resulted in a non-parole period of just under 3 years. In accordance with her finding of special circumstances under s 44(2) of the Sentencing Procedure Act, the sentencing judge varied the non-parole period. The non-parole period she imposed was of 1 year and 10 months, a reduction of 14 months. The non-parole period is therefore just over 47 per cent of the head sentence.
The Director's appeal
As mentioned above, two grounds were advanced for the appeal. The first concerns only the s 112(3) offence which, it was asserted, is manifestly inadequate. The second complains of the total concurrency of the two sentences.
Ground 1: the sentence imposed in respect of count 1 manifest inadequacy
In support of his contention that the sentence imposed in respect of the s 112(3) offence was manifestly inadequate, the Director identified a number of issues of concern. He asserted that the sentencing judge failed to pay adequate attention to (i) the assessment of the objective seriousness of the offence; (ii) the clear premeditation and careful planning of the offence; (iii) the fact that the offence was committed in a domestic violence context; (iv) that fact that a number of victims were involved; and (v) the "legislative guide post" constituted by the standard non-parole period of 7 years.
The second, third and fourth of these, while individual complaints, also are relevant to the assessment of objective gravity.
Objective seriousness
I have set out above the two passages in which her Honour made reference to the objective seriousness of the offence. The complaint made on behalf of the Director is that there was no real attempt by her Honour to place the offence on any scale of objective seriousness. The first passage extracted was merely an observation that, because the legislature has specified a maximum penalty of 25 years in respect of offences against s 112(3), offences of that genre are to be treated as serious. It says nothing about the gravity of this particular instance of such offences.
The second passage goes further, but, the Director complains, does no more than enumerate some of the features of aggravation - that the offence was committed in the home of the victim, that the gun was loaded and discharged, and that there was a degree of planning. This was, on the Director's case, an insufficient discharge of the obligation to make a proper assessment of the objective seriousness of an offence.
It was pointed out that, in addition to the matters referred to by her Honour, it was pointed out that the respondent went to the lengths of concealing his motorcycle in order to have the benefit of surprising the victims when they entered the house. It was submitted that:
"... the premeditation and the use of a loaded gun, the muzzle of which was placed against the victim's forehead, greatly elevated the objective seriousness of the offence."
Further, it was submitted that her Honour failed to take into account that the offences were committed within a domestic violence context, and that there were two victims of the first offence.
Reference was made to three decided cases, two of them cases of offences against s 112(2), which carries a maximum sentence of imprisonment for 20 years. Although these cases are of interest, the sample is far too small to be of any real guidance.
It is in respect of the treatment of objective seriousness that I differ most significantly from the views expressed by Harrison J. In my opinion, the assessment of objective seriousness is, and has always been, a critical component of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349; Markarian v The Queen [2005] HCA 25; 228 CLR 357; Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [71]-[72]. These cases were all decided before judgment was given in Muldrock v The Queen [2011] HCA 39; 240 CLR 120. There is nothing in that judgment that cuts across the principle stated. Muldrock exposed error in this Court in over emphasising the assessment of objective gravity in offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, of notional offences in the mid-range of objective seriousness. It does not preclude proper attention being paid to the objective seriousness of the particular offence under consideration: see, for example, R v Koloamatangi [2011] NSWCCA 288 per Basten JA. In respect of offences to which Pt 4 Div 1A of the Sentencing Procedure Act applies, two "legislative guide posts" are to be observed - the maximum sentence prescribed, and the standard non-parole period.
A "legislative guide post" is an instrument of measurement. Standing alone, it is meaningless. It is used to measure the relevant features of a particular instance of a crime against (in the case of the maximum penalty) a worst case: see Markarian, [30]-[31]; (in the case of the standard non-parole period) an offence in the mid-range of objective seriousness.
Objective seriousness is a relative concept. That the legislature has prescribed a maximum penalty of 25 years for an offence against s 112(3) reveals that the legislature sees such offences (measured against other offences) as serious - other than a penalty of life imprisonment, 25 years is the longest maximum sentence contained in the Crimes Act. That is what the sentencing judge referred to in the first of the passages extracted above. For sentencing, it is also necessary that the particular offence be assessed against other instances of such offences. This is often done instinctively, by sentencing judges with the benefit of experience of other such offences.
The features of the respondent's offence pointed to a conclusion that it was, on a relative assessment, a serious instance of a s 112(3) offence. In saying that, I note, in the respondent's favour, two circumstances. A "serious indictable offence" is an offence punishable by imprisonment for 5 years or more (Crimes Act, s 4). The intimidation which was the serious indictable offence the subject of the indictment is punishable by imprisonment for 5 years - that is, at the very lowest end of the scale of offences that come within s 112(3).
A "circumstance of special aggravation" is defined in s 105A of the Crimes Act as:
"(a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person,
(b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person,
(c) the alleged offender is armed with a dangerous weapon."
Being armed (but without wounding or inflicting grievous bodily harm) may reasonably been seen as the lesser of these three alternatives.
Nevertheless, this was a case in which the respondent used his knowledge of Ms Campbell's home, where she kept her gun and her ammunition and what her habits were. There was a considerable degree of planning involved; the respondent used a key to the gun safe that he had retained to gain access to the gun. He concealed his motorcycle, so that Ms Campbell and Ms Wilson were not forewarned of his presence. These circumstances all point to an objectively serious offence. Had a real analysis been made, it would have been plain that the offence called for a sentence greater than that which was imposed.
Moreover, there appears to have been no attention paid to the "domestic violence context" of the offence, nor to the number of victims subject to the offence. This is another respect in which I differ from Harrison J. Section 21A(2) of the Sentencing Procedure Act identifies aggravating factors that are to be taken into account in the determination of the appropriate sentence for an offence. Sub-paragraph (m) is "the offence involved multiple victims or a series of criminal acts". Although Ms Campbell was the target and the principal victim of the s 112(3) offence, it is, in my opinion, inescapable that two victims were subjected to that offence. Both Ms Campbell and Ms Wilson were at serious risk of injury, given that a loaded firearm was involved. I am unable to agree with Harrison J that such a crime is not more significant than a crime committed against a single victim. Further, I am of the view that the fact that the gun was directed at Ms Campbell's head is a more frightening and more serious event than a less direct use of the gun.
It is implicit in the judgment of Harrison J that he accepts that the starting point (prior to reduction in respect of the plea of guilty) of a sentence of imprisonment for 5 years and 3 months for this offence was manifestly inadequate. I agree.
Taking into account a 25 per cent reduction, the sentence proposed by Harrison J, of 5 years, reflects a starting point of about 6 years and 6 months. I agree that that is an appropriate starting point for this offence.
There remains, however, the question of the non-parole period imposed. I have mentioned above the degree of variation in the statutory proportion between the head sentence and the non-parole period imposed. Her Honour appears to have taken into account in this respect that the respondent would suffer in custody by reason of separation from his children. There was no evidentiary foundation for that finding. In any event, it is little different to scores of cases in which imprisonment of a parent results in hardship to children and hardship to the incarcerated parent.
This was not a proper basis for the variation in the statutory proportions. Nor does it account for the very significant (and excessive) reduction in the proportion.
The Crown conceded, at sentencing, that special circumstances existed. There was no departure in this Court from that concession. Nor is there any error in her Honour's finding of special circumstances. Accordingly, effect should be given to that finding.
However, I am of the view that the extent of variation was excessive.
In my opinion, the sentence imposed in respect of the s 112(3) offence ought to be imprisonment for 5 years, with a non-parole period of 3 years.
Ground 2: accumulation
I have had some difficulty with this ground. It is well known that a wide degree of discretion exists in relation to accumulation and concurrency. I accept that these two offences were committed as part of a single enterprise. However, the assault was a discrete offence and called for some separate punishment. In my opinion, there should be 3 months accumulation. Giving effect to that means that the sentence imposed in respect of Count 2 should commence on 27 January 2013 and expire on 26 October 2013. The sentence in respect of Count 1 should commence on 27 April 2013.
It follows from the above that the sentences imposed must be quashed and the respondent re-sentenced. Against that possibility he filed an affidavit setting out his circumstances since sentencing. He is presently incarcerated at the Cessnock Correctional Centre. When he learned that the Director proposed to appeal he felt depressed and very unhappy. He has no visitors in gaol because of the distance and is only occasionally able to talk to his parents or his children on the phone. He is unable to undertake any courses until the appeal is finalised. There is little in this affidavit that affects the approach that should be taken to re-sentencing. The Director filed an affidavit concerning the inability of the respondent to access educational courses in custody. The information contained therein also casts better light on the re-sentencing decision.
I propose the following orders:
(1) Appeal allowed;
(2) In respect of the offence of assault occasioning actual bodily harm, sentence the respondent to imprisonment for 9 months, commencing on 27 January 2013 and expiring on 26 October 2013;
(3) Quash the sentence imposed on the respondent in respect of the s 112(3) offence and in lieu thereof sentence the respondent to a term of imprisonment for 5 years commencing on 27 April 2013 and expiring on 26 April 2018, with a non-parole period of 3 years, expiring on 26 April 2016.
HALL J: I agree with the judgment of Simpson J and the orders her Honour proposes.
HARRISON J: The Crown appeals against the alleged inadequacy of sentences imposed upon the respondent by her Honour Payne DCJ at Armidale on 10 October 2013. The respondent had pleaded guilty on 28 August 2013 to one count of breaking and entering a dwelling and committing a serious indictable offence, namely, intimidation, in circumstances of special aggravation, namely, being armed with a dangerous weapon contrary to s 112(3) Crimes Act 1900 and one count of assault occasioning actual bodily harm contrary to s 59 of the Act. A "serious indictable offence" is an offence that is punishable by imprisonment for life, or for a term of 5 years or more: Crimes Act, s 4. Intimidation is an offence against s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). It is punishable by imprisonment for 5 years.
Her Honour sentenced the respondent on the s 112(3) count to a term of 3 years and 11 months commencing on 27 January 2013 and expiring on 26 December 2016 with a non-parole period of 1 year and 10 months expiring on 26 November 2014. Section 112(3) carries a maximum sentence of 25 years imprisonment and a standard non-parole period of 7 years.
Her Honour sentenced the respondent on the s 59 count to a fixed term of 9 months commencing on 27 January 2013 and expiring on 26 October 2013. Section 59 carries a maximum penalty of 5 years imprisonment, with no standard non-parole period.
There are two grounds of appeal. First, that the sentence imposed on count 1 was manifestly inadequate. Secondly, that her Honour erred in directing the sentences on each count to be served wholly concurrently, leading to the imposition of a total sentence that is manifestly inadequate. No complaint is raised about the adequacy of the sentence on count 2 standing alone.
Background
The following facts were not in dispute.
The respondent was 35 years old at the date of the offences and had been married to the victim Kelly Campbell for ten years. They had three children together, who at the date of the offences were aged 5, 6 and 7 years. The marriage had broken down in 2010 and there had been little contact between the respondent and the victim since the separation. They were divorced. The victim formed a same sex relationship with Michelle Wilson in 2012. They lived together with Ms Campbell's children on an isolated property at Pinkett, about thirty-five kilometres south east of Glen Innes. For two days prior to the offence they had been in Queensland and the children were staying elsewhere.
Some time on 27 January 2013, the respondent rode his motorcycle to the property at Pinkett and entered the dwelling house through a closed but unlocked kitchen window. He hid his motorcycle in the laundry at the rear of the property. He had with him a key to the victim's gun safe that he had kept after the divorce. He opened the safe and removed a .22 calibre pump action rifle. He also obtained some ammunition and loaded 5 rounds into a magazine that he placed on the rifle. He then waited until the victim and her partner returned home.
At about 1.25pm the victim and her partner returned to the property. Michelle Wilson entered the house and walked straight to the bathroom located at the rear of the premises. The victim walked into the front bedroom, placed her bag down on the floor and turned around. It was then that she saw the respondent standing in front of her in the doorway to the lounge room. He raised the rifle, pointed the barrel at her forehead and said, "Get in here, we need to talk".
The victim sidestepped the respondent and pushed the barrel of the rifle away from her. The respondent and the victim struggled for control of the gun. The respondent pushed the victim to the floor. The firearm discharged and the cartridge struck the floor of the lounge room about two metres from where the victim and the respondent were wrestling. Ms Wilson heard the commotion and came into the lounge room. She said that when the gun discharged she felt something sting her on the forearm. It hurt but it did not leave a mark. Whilst wrestling on the ground, the victim managed to knock the cylindrical magazine out of the rifle and throw it to the other side of the room.
The victim and the respondent continued to struggle with the firearm. The respondent lifted the victim off the ground and onto the couch. The respondent then landed on top of her as they continued to struggle for control of the gun. The victim still managed to retain her hold on the rifle. Whilst this was happening, Ms Wilson rang triple-0. The respondent reached over and hung up the phone whilst still wrestling with the victim.
The victim eventually managed to get the rifle from the respondent and calm him down. She located the magazine and emptied the four remaining rounds onto the kitchen table. The triple-0 operator rang back. The victim answered the phone and explained what had happened. Police attended at the residence at 1.50pm and arrested the respondent. Whilst waiting for the police to arrive, the victim, Ms Wilson and the respondent sat at the kitchen table and the respondent explained to them how he had entered the premises and opened the gun safe. The respondent declined to participate in a recorded interview with the police.
The victim attended at Glen Innes Hospital where she was treated for a suspected fractured rib. She also had a bruise to her right calf, a bruise on her right big toe, a bruise on her inner thigh, a swollen lump on her left outer thigh and bruising to her right wrist and hip area.
Ballistic testing confirmed the rifle was in working order. It was also confirmed that the recovered cartridge case had been fired from the same .22 calibre rifle.
Supplementary agreed facts were also tendered which her Honour summarised noting, "This shows the reason, that I accept, for the offending, namely the prisoner's concern for his children". These supplementary facts indicated that after the separation, the respondent spent time in Tasmania between 2010 and 2011. He did not see his children regularly, but they stayed with his parents most weekends and had regular contact with other members of his family. He had paid some child support but had not fulfilled all of his obligations in this regard.
The respondent was concerned about the welfare of his children in their mother's care and made a number of complaints to DOCS in relation to the treatment of the children and the conditions in which they were living. DOCS became involved but the children were always left in their mother's care. A variety of allegations about the manner in which the victim was caring for the children were made by the applicant and by members of his family. The supplementary statement of agreed facts showed that some, at least, of those were not without foundation. The sentencing judge accepted that the applicant's concerns for the welfare of his children were genuine, and that there was some basis for his concerns.
The children spent regular weekends at the respondent's parent's house. Sometimes the respondent was present during these visits. The children enjoyed spending time with their father and grandfather and were often upset when they had to leave and return to their mother's care. The respondent found this distressing.
Crown's submissions - Ground 1
The Crown contended that her Honour appears to have imposed a disproportionately low sentence by reason of a number of specified errors. These were her failure properly to recognise or characterise the objective seriousness of the offence, a failure to take into account that the offences were committed in a "domestic violence context", a failure to take account as an aggravating circumstance of the fact that there were two victims and an unsupported finding that custody will be more onerous for the respondent because he would be separated from his children.
Objective seriousness
Her Honour noted that in her remarks on sentence that the offence was "objectively serious". The Crown contended, however, that her Honour appeared to be referring to offences against s 112(3) generally, rather than the specific offence, inasmuch as she supported her statement by reference to the maximum penalty and the standard non-parole period, rather than the facts of the offending. Indeed, at no point in her remarks did her Honour express her view about the level of objective seriousness of the particular offence. Whilst her Honour did enumerate some of the features of the offending that she considered aggravated the offence, her Honour did not unambiguously make a finding about its objective seriousness. The Crown submitted that her Honour's failure to do so led her to give inappropriate weight to the respondent's subjective case and led her to impose a sentence that failed to reflect his objective criminality in the circumstances.
The Crown contended that this was an objectively very serious offence. The fact that the serious indictable offence pleaded was intimidation, an offence at the lowest end of the scale of serious indictable offences (by reason of the maximum applicable penalty), did not limit the characterisation of the level of objective seriousness, which is a matter to be determined by reference to all the surrounding circumstances: R v Huynh [2005] NSWCCA 220, Micklesson v R [2009] NSWCCA 61.
The offence was premeditated and planned. The respondent went to the house at a time when he knew the victims were out but were expected to return home. He had the key to the victim's gun safe with him. He hid his motorcycle so he would have the benefit of surprising the victims when they entered the house. He took the gun from the victim's locked safe, loaded it with live ammunition, and then lay in wait for the women to return.
That premeditation and the use of a loaded gun, the muzzle of which was placed against the victim's forehead, greatly elevated the objective seriousness of the offence. In Shaw v R [2008] NSWCCA 58, Fullerton J remarked at [36], in the context of consideration of a sentence imposed for an offence under s 112(2), that "[w]ere the applicant to have planned a forced entry, armed himself for that purpose, and then used the tool as a weapon to inflict injury, the offence would properly be categorized [as involving a high level of objective criminality]". See too the discussion in R v Rossi-Murray [2009] NSWCCA 177 at [54]. The fact that the gun was discharged in the course of the struggle with the victim also elevated the objective gravity of the offending.
Domestic violence
The Crown also contended that her Honour failed to take into account that the offences were committed within a domestic violence context. Although the respondent had not previously been violent toward the victim, she was his ex-wife and the offences were apparently motivated by anger toward her arising from his anxiety about their children.
This Court recently remarked in Simpson v R [2014] NSWCCA 14 at [35] and [41], that in such matters specific and general deterrence are of great importance, as are denunciation and the protection of the community. (See also R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551 at [41]; R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [65]; and R v Kentwell [2013] NSWCCA 266 at [88]). The Crown contended that this was completely overlooked by her Honour despite the family setting being central to the facts.
Had her Honour considered the aggravating aspect of the domestic violence context of the offending, her Honour would have given greater weight to the considerations of deterrence, denunciation and the protection of the community: Hiron v R [2007] NSWCCA 336 at [32]; Martin v R [2011] NSWCCA 188 at [13].
The number of victims
The Crown also suggested that her Honour failed to take into account as an aggravating factor that there were two victims. The significance of this was illustrated by the fact that the bullet that was fired would appear to have grazed Ms Wilson's arm.
Separation from children while in custody
Her Honour commented as follows at page 8 of her remarks on sentence:
"I accept that custody will be more onerous because now as a result of his own behaviour he cannot even have contact with his children and unfortunately they will also be victimised ... they have not had the benefit of having their father, because he is in custody and he is not allowed to see them, so I accept his custody is more onerous because of that."
There was no evidence to support that finding. The respondent did not give evidence and there was no basis for her Honour to conclude that the respondent would find his conditions of custody more onerous than any other incarcerated parent. It is pertinent in that context to observe that since the separation, the children have lived with their mother full-time, and the respondent has not fulfilled his obligations concerning the payment of child support. He has only had intermittent contact with the children when he was not travelling for his work.
Standard non-parole period: s 112(3)
As the High Court observed in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [30], it is highly desirable for a sentencing judge to give a full statement of reasons as to why a particular non-parole period is specified, whether higher or lower than the standard non-parole period. Her Honour gave no reasons explaining why she chose a non-parole period that was considerably lower than the standard non-parole period. The Crown contended in these circumstances that, having regard to the serious level of criminality involved, and notwithstanding the respondent's strong subjective case, a non-parole period of 1 year and 10 months suggested that her Honour failed to have due or proper regard for the guidance offered by the standard non-parole period for the subject offence.
Crown's submissions - Ground 2
The respondent also assaulted the victim occasioning actual bodily harm and was sentenced to a wholly concurrent sentence of 9 months imprisonment. In those circumstances the Crown submitted that her Honour imposed no effective punishment for that offence. The Crown contended that the respondent's discrete act of criminality should have been reflected by at least some degree of accumulation: R v XX [2009] NSWCCA 115 at [52].
Respondent's submissions - Ground 1
Objective seriousness
The respondent contended that the Crown's analysis of the way in which her Honour dealt with this issue sprang from an overly narrow assessment of the sentencing remarks. The respondent drew attention to what he characterised as "a proper reading of the entirety of the remarks". Such a reading supported the conclusion that her Honour's comment "[t]his was an objectively serious offence" effectively carried over to a comprehensive analysis of the objective seriousness of the offence. Her Honour referred to the maximum penalty. Her Honour referred in terms to it as an indication of "[t]he seriousness with which the legislature views the offence." Her Honour considered "the nature of the offending."
Her Honour thereafter had regard to other "certain features that make this offence more serious", a phrase that the respondent contended reflected a continuing analysis of the objective seriousness of the offence. Reference was then made to the fact that the offence was committed in the victim's home, that the firearm was both loaded and discharged, as well as to "a degree of planning." The respondent contended that her Honour consciously took into account the very matter of seriousness to which the Crown's submissions referred, and that her Honour relevantly appears to have considered all relevant aspects of the particular s 112(3) offence for which the respondent faced sentence.
The respondent submitted that her Honour did not fall into error by failing with more precision to identify the level of objective seriousness or that such failure did not lead her Honour to give undue weight to the respondent's subjective case. Indeed, her Honour specifically observed that:
"...the Crown is quite correct when [it] says despite the strong subjective case and the particular circumstances of the case, that its objective seriousness cannot be lost sight of.
...
...the Court cannot put to one side the seriousness of the offending and the other requirements of punishment, general deterrence and retribution. The subjective case though will be given due weight, as it should be, and the motivation will be given due weight."
Domestic violence
The Crown did not contend that the offences were domestic violence offences but that they occurred in a "domestic violence context". The respondent submitted that this was either a complete misstatement or at least an overstatement of the true position. There had been no history of violence between the respondent and his former wife or her current partner. He contended that reliance on authority dealing with this notion was misplaced. Sentencing principles referable to violence in domestic relationships do not arise here. It is only correct to say that the offences occurred in a domestic context, with no relevant impact upon the sentencing process.
The number of victims
The respondent contended that this was in effect an irrelevant consideration. The Crown's submission is unsupported by authority. The Crown does not suggest or identify a specific error by her Honour in failing to articulate the fact or the relevance of a second victim. To the extent that her Honour is alleged to have failed relevantly to consider the presence of a second victim, the effect upon the sentencing outcome could only have been slight.
Moreover, the charge as pleaded contemplated only one victim. The serious indictable offence contemplated was intimidation. Both the terms of the indictment and the facts of the case make it clear that the intimidation offence was committed against the respondent's former wife. Additionally, the indictment only alleged as an aggravation the use of corporal violence against her. The offence charged did not contemplate multiple victims. There was not in the circumstances any error discernible in the way in which her Honour dealt with that aspect of the sentence.
Separation from children while in custody
The evidence about this was that the respondent had three sons aged 7, 6 and 5 years of age at the time of the offence. There was uncontradicted evidence that the respondent was motivated by his reasonable perception that the children had been neglected. An apprehended violence order had prevented or limited the respondent's contact with his children for a period of at least two years. However, the effect of incarceration would inevitably affect the respondent's contact with his children, superimposed upon a recent history of limited or difficult contact with them in the period leading up to the imposition of his sentence.
The respondent contended that it was in these circumstances entirely open to her Honour to conclude that the enforced separation of the respondent and his children would have a heightened adverse impact upon all of them. Her Honour referred to the notion that the children would "also be victimised." Nothing said by her Honour suggests that she placed any undue weight upon this factor, having regard to her Honour's comments that the respondent's own conduct led to the predicament that confronted him. The respondent contended that her Honour in fact placed little if any weight at all upon the prospect that incarceration would be more onerous for him in the circumstances.
Standard non-parole period: s 112(3)
The respondent submitted that her Honour's judgment made it plain why she imposed the sentence that she did. Her Honour did not allow the respondent's subjective case to displace proper weight being given to the other purposes of sentencing including punishment, general deterrence and retribution. Her Honour referred to and was accordingly obviously mindful of the standard non-parole period referable to this offence.
Respondent's submissions - Ground 2
Questions of accumulation are clearly discretionary. Where offences have features in common, are substantially contemporaneous and connected, or arise out of what may be considered the one episode or course of criminal conduct, it may be appropriate to impose concurrent sentences. In Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27], Howie J observed that there is no general rule but that the question was in effect whether the sentence for one offence comprehended or reflected the criminality for the other.
The respondent emphasised in this case that even though the assault offence was separately charged it was not the subject of a discrete act of violence by the respondent. The agreed facts refer to the victim's injuries in detail, which she suffered during the course of the scuffle with the respondent in the immediate aftermath of the original confrontation with him. The assault offence was, according to the respondent, substantially contemporaneous and connected. This was a case in which the imposition of wholly concurrent sentences revealed no error or miscarriage of her Honour's sentencing discretion.
Consideration
In my opinion the sentence imposed by her Honour for the s 112(3) offence is manifestly inadequate. I am not satisfied however that her Honour's imposition of wholly concurrent sentences for the two offences bespeaks error. My reasons for arriving at these conclusions are as follows.
I appreciate that legislators and judges have written much about objective seriousness as a relevant indicator of comparative degrees of criminality for sentencing purposes. I do not intend to derogate from such references in any way at all in expressing my opinions in this case. However, I remain doubtful about the utility for appellate purposes of the minute dissection of the extent to which a sentencing judge may or may not have referred in terms or by implication to the objective seriousness of particular criminal conduct when formulating a proper sentence or expressing his or her reasons with respect to it. The nature of judicial discretion means that there is both a wide range of circumstances capable of supporting the same conclusion, and a narrow range of circumstances capable of supporting different conclusions. The usefulness and hence the significance of expressions of opinion about objective seriousness must therefore be approached cautiously.
For the purposes of this case, I confess to not being particularly assisted by competing submissions about the extent to which her Honour embraced or discussed the concept of objective seriousness as a particularly productive source of inspiration about the adequacy or otherwise of the sentence that she imposed. Clearly enough, a complete failure to refer to objective seriousness would not invalidate an otherwise perfectly proper sentence. Conversely, detailed or persistent references to objective seriousness in sentencing remarks would not necessarily salvage a sentence that was otherwise either manifestly inadequate or excessive.
There does not seem to me to be any merit in analysing the adequacy or otherwise of a sentence in purely or even partly formulaic terms. In summary, I am unable to accept that the extent her Honour's references to objective seriousness reliably informs any conclusion about error on her part. It seems clear to me that her Honour adequately dealt with and explained the matters that she took into account, and did not fail in any special way to deal with all relevant matters.
Rather than drawing too heavily upon her Honour's description of the objective seriousness of the s 112(3) offence, it is preferable to examine the substance of what occurred. The respondent clearly determined in advance of going to the victim's property that he would do so in a way that would avoid detection until he chose to reveal his presence, equipped with a weapon to provide him with what he hoped would be the upper hand. The key to the gun safe had been retained by him and was used to obtain the shotgun that figured prominently in the crime. It appears that he also acquired ammunition beforehand although that is possibly less clear than it might be. The fact that the respondent chose to load the weapon, when the victim could not have known whether it was loaded or not, is a chilling addition to this mix. By the time the respondent had entered the victim's house he had secreted his motorbike in the laundry, and was not observed before the ultimate confrontation in the bedroom.
There is an issue about whether or not the respondent placed the weapon against the victim's forehead. The issue is of little consequence in my view. Whether the respondent did so, or simply stood with the weapon at hand, the fear and intimidation that it was capable of creating in the mind of the victim cannot be understated or relevantly distinguished. The fact that the victim demonstrated such extraordinary presence of mind, and the fact that she was ultimately able to disarm the respondent, does not detract from the frightening nature of this confrontation. The added fact that the weapon discharged in the course of the struggle to wrest control of it from the respondent informs the level of intimidation that the respondent was able to exert.
The submissions have also directed attention to the fact that the respondent and the victim were formerly in a domestic relationship. Views differ about whether that is or should be significant. The offence was certainly committed in the victim's home. I think that caution should be exercised in characterising the offence as more or less serious because the parties were formerly husband and wife. Put bluntly, it is difficult to say that principles of general deterrence and denunciation should be given greater emphasis in the case of an offence committed in the context of a domestic relationship than the same offence committed against a stranger, without implicitly detracting from the seriousness of the offence in the latter case. The respondent's former wife is entitled to expect that the sentence imposed upon the respondent will reflect the nature of the crime committed against her. The respondent's crime, committed as it was against his former wife, would have been no less serious or worthy of denunciation if perpetrated upon a complete stranger. I am unable to see that her Honour fell into error in the way that she characterised or took account of the relationship between the parties to this particular offence.
I do not accept the proposition that there were two so-called victims of the offence. Section 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 provides as a potential aggravating circumstance that "the offence involved a grave risk of death to another person or persons". Neither of the parties addressed attention to that provision in the context of the submissions about the alleged importance of the number of victims. That provision does not apply in this case. The fact that there were two women in the house at the time does not obviously suggest that the crime was more significant than if committed upon a single victim. Indeed, on one available view, the fact that the respondent was confronted by two potential victims, so that his former wife was in that limited sense not alone and even more vulnerable, could arguably support a contrary analysis.
It does not seem to me that her Honour erroneously took account of the fact that the respondent would find his time in custody more onerous by reason of a separation from his children. The fact that her Honour happened to comment upon it does not thereby elevate the matter to a significant element in her reasoning process. On one view it was an obviously pertinent comment in the context of what appeared to have motivated the commission of the offences in the first place. I am unable to discern from what her Honour said about that matter that she placed any particular emphasis upon it, which in turn led to the imposition of an erroneously lenient sentence.
I am, however, of the view that her Honour failed to have due or proper regard for the guidance offered by the standard non-parole period for the s 112(3) offence. Even putting aside the legitimate influence of subjective factors favouring the respondent, it is difficult to see that her Honour took proper account of the standard non-parole period in this case. A non-parole period of 1 year and 10 months represents a sentence slightly below one quarter of the standard non-parole period of 7 years. It would not be correct in the circumstances of this case to characterise the offence as below, and certainly not that far below, the middle range of seriousness for offences of this type. Even after the application of subjective matters favouring the respondent, the imposition of a non-parole period of 1 year and 10 months fails properly in my opinion to take account of the seriousness of the offence as earlier described. The fact that her Honour may, as the respondent has submitted, have referred to the standard non-parole period in her remarks on sentence, does not ameliorate or excuse the corresponding failure to give it some practical recognition in the case at hand.
It follows in my view that the sentence imposed by her Honour was manifestly inadequate.
I am not of the view that her Honour erred by making the sentence for the s 59 offence wholly concurrent with the sentence for the s 112(3) offence. It seems to me that the offences were completely, or at least effectively, contemporaneous and connected. They arose out of precisely the same set of circumstances. I consider that her Honour's implicit conclusion, that the sentence for the s 112(3) offence comprehended or reflected the criminality for the s 59 offence, is unexceptionable as an exercise of her sentencing discretion. The Crown's understandable preference for a different view does not to my mind equate to the demonstration of error.
Her Honour's finding of special circumstances is not controversial.
Conclusions and orders
The respondent should be re-sentenced. I propose the following orders:
1. Allow the appeal.
2. Quash the sentence imposed upon the respondent by her Honour Payne DCJ on 10 October 2013 for the s 112(3) offence and in lieu thereof sentence the respondent to a term of imprisonment for 5 years commencing on 27 January 2013 and expiring on 26 January 2018 with a non-parole period of 3 years expiring on 26 January 2016.
3. Otherwise confirm the sentence imposed by her Honour for the s 59 offence.
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Decision last updated: 02 July 2014
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