R v Christopher Aaron Honeyman

[2005] NSWCCA 39

CITATION:	R v Christopher Aaron Honeyman [2005] NSWCCA 39 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15/02/2005
JUDGMENT DATE:	15 February 2005
JUDGMENT OF:	Grove J at 19; Bell J at 20; Buddin J at 1
DECISION:	1 Grant leave to appeal. 2 Allow the appeal and quash the sentences imposed in the District Court. 3 In respect of the offence of detain for advantage, sentence the applicant to imprisonment for 12 months to date from 10 March 2004. 4 In respect of the offence of malicious wounding, and taking into account the Form 1 matter, sentence the applicant to 2½ years imprisonment with a non-parole period of 12 months with each term to commence on 10 September 2004. The total effective head sentence is thus one of 3 years which will expire on 9 March 2007. The overall non-parole period will expire on 9 September 2005 at which time the applicant is to be released on parole.

CATCHWORDS:	Sentencing - malicious wounding - detain with intent to obtain an advantage - linking of strength of Crown case to utilitarian value of the plea - delay - manifestly excessive sentences
LEGISLATION CITED:	Crimes Act
CASES CITED:	R v Thomson and Houlton (2000) 49 NSWLR 383
PARTIES:	Regina Christopher Aaron Honeyman
FILE NUMBER(S):	CCA 2004/2652
COUNSEL:	W Dawe QC (Crown) M Ramage QC (Applicant)
SOLICITORS:	S Kavanagh (Crown) Voros Lawyers (Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3009
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ

2004/2652

GROVE J
BELL J
BUDDIN J

TUESDAY 15 FEBRUARY 2005

REGINA v CHRISTOPHER AARON HONEYMAN

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court following his pleas of guilty to two offences. In respect of an offence of detaining Ms Margaret Bell without her consent and with intent to obtain an advantage, the applicant was sentenced to a fixed term of 18 months imprisonment to commence on 10 March 2004. In relation to a further offence of maliciously wounding Ms Bell which was committed at the same time, the applicant was sentenced to a term of 3½ years imprisonment with a non-parole period of 2 years. Both these terms were ordered to commence on 9 September 2004. The non-parole period is due to expire on 8 September 2006 and the effective overall sentence is thus one of 4 years imprisonment with a non-parole period of 2½ years. The offence of detaining a person for advantage carries a maximum penalty of 14 years imprisonment whilst the maximum penalty for malicious wounding is 7 years imprisonment.

2 An offence of possessing a prohibited drug, which the sentencing judge quite properly described as being a relatively minor matter, was also taken into account on sentence. It related to an occasion on which the applicant was found in possession of just over 3 grams of cannabis.

3 The facts in the matter are not in dispute and may be stated shortly. On the day in question the victim arrived home from work. The applicant, who was her partner, was already there. The victim and the applicant then smoked marijuana in the loungeroom. Subsequently they had an argument which led to a physical altercation. The argument continued whilst the applicant was in the kitchen making sandwiches. The applicant then emerged from the kitchen with a knife in his hand. He struck the victim on the top of her head a few times with the handle of the knife. When the victim put her hands up to protect her head, the applicant stabbed her through the hand. He caused the blade of the knife to go right through the hand and exit the other side before removing it. The victim jumped up from the lounge in order to treat the wound which she had sustained. The applicant ran to the kitchen where he grabbed a tea towel. He then proceeded to assist the victim by wrapping the tea towel around the wound.

4 The victim stated that she was going to ring the police in order to report the incident but the applicant prevented her from doing so. As a consequence, the victim was only able to contact the police when the applicant left for work the next morning. It was that aspect of the matter that gave rise to the charge of detaining the victim for advantage.

5 The victim was hospitalised and underwent surgery to repair two tendons in her right hand which had been severed. Fortunately the victim has recovered the full use of her hand, although she has been left with some scarring.

6 The applicant had a number of previous convictions none of which had attracted a sentence requiring him to serve any time in custody. In September 2001 he was fined $100 for possessing a prohibited drug. In May 2002 he was ordered to perform 100 hours of community service for an offence of goods in custody. In January 2003 he was ordered to serve 25 hours of community service for taking a small quantity of a drug into a detention centre. Perhaps of more immediate significance are offences for which he was dealt with in December 2001. They consisted of offences of assault, malicious damage and obtaining financial advantage by deception, as well as two offences of larceny. In respect of all these matters he was placed on a good behaviour bond for 2 years. At the same time he was sentenced in respect of an offence of break and enter to 6 months’ imprisonment, a sentence which was fully suspended. It was thus a matter of aggravation that the applicant was on a bond at the time of the commission of the present offences. It was also a relevant sentencing consideration that the victim of the assault offence to which reference has just been made was the present victim. It is apparent that the relationship between them had been somewhat turbulent.

7 The sentencing judge had the advantage of hearing evidence from the applicant and his mother. His Honour was also provided with a pre-sentence report (which was supplemented with updated material) as well as a report from a consultant psychiatrist, Dr Ben Teoh and two reports from a psychologist, Mr Alex Sevitt.

8 The evidence established that the applicant was aged 23 when he stood for sentence. It would appear that his childhood was beset with behavioural problems. At the age of 15, he was diagnosed as suffering from Attention Deficit Hyperactivity Disorder (ADHD). He was then prescribed Ritalin by a paediatrician. It seems that he stopped using it because of the adverse side affects which it caused. After his arrest, the applicant attended the offices of ADD/ADHD National Diagnostic Sources Pty Ltd where Mr Sevitt confirmed the earlier diagnosis that he was suffering from ADHD. The applicant was then prescribed dexamphetamine and in due course came under the care of Dr Teoh. It is clear that his condition was not being treated at the time when the present offences were committed. To further complicate matters, the applicant developed a significant dependency upon cannabis in his early to mid-teens, a dependency which continued unabated. Indeed he said that at the time of the incident he was smoking about “20 cones” a day. By the time of sentence, however, the applicant was also taking Clonidine as prescribed by Dr Teoh, it being medication which was designed to assist him in overcoming his abuse of cannabis.

9 The applicant left school before completing the Higher School Certificate. His employment history was somewhat chaotic although it appears that he had been employed for about 14 months as a painter when he came to be sentenced. The evidence indicated that the applicant had made considerable progress in addressing both his cannabis dependency and his condition of ADHD during the period leading up to the sentencing hearing. The sentencing judge specifically found that the applicant would find imprisonment more onerous than would otherwise be the case because it was most unlikely that he would be provided with dexamphetamine whilst in custody. Nevertheless his Honour made a specific recommendation that he be provided by gaol authorities with treatment for his ADHD. The sentencing judge also considered that there was room for optimism so far as the applicant’s prospects for rehabilitation were concerned. Indeed that was one of the matters that prompted his Honour to make a finding of “special circumstances”.

10 The applicant’s primary complaint is that the sentences which were imposed upon him are manifestly excessive. In amplification of that contention, it is submitted that the sentencing judge fell into error in a number of respects. It is convenient to deal first with some of the particular matters which were raised.

11 It is submitted that the sentencing judge erred in failing to take into account the delay of 20 months between the date of the offences and the date of sentence. Most of that delay however was occasioned by the applicant’s initial plea of not guilty and then by his seeking and obtaining a number of adjournments after the pleas of guilty were entered. More importantly the applicant was able to use the period in question to demonstrate that he was taking positive steps towards his ultimate rehabilitation. The delay was not, in any event, of such a magnitude as would warrant any particular leniency being extended to the applicant. I would accordingly reject this submission.

12 I would similarly reject a submission that the sentencing judge failed to sufficiently take into account the applicant’s remorse. The sentencing judge made specific reference to the evidence which the applicant had given upon this matter and that fact, together with other remarks which his Honour made during the course of the sentencing proceedings, strongly suggest that his Honour accepted that the applicant’s remorse was genuine and that it called for appropriate weight to be given to it.

13 A submission is made that “the sentencing judge erred in failing to sufficiently take into account the positive effects on the [applicant] of his treatment with dexamphetamine and the deleterious effect of its removal”. That submission cannot be sustained on a fair overall reading of his Honour’s Remarks on Sentence, particularly in view of the specific reference which his Honour made concerning the more onerous conditions which the applicant would have to endure by reason of being deprived of the benefit of dexamphetamine.

14 A complaint that “the sentencing judge erred in failing to take into account the effect of drugs on the accused and victim at the time of the offence” must also be rejected. The sentencing judge made specific reference to the evidence concerning the offender’s consumption of marijuana at the time of the commission of the offence. The evidence was not, in any event, of such a type as would justify any particular mitigation of the otherwise appropriate sentence on account of this factor, particularly as there was nothing placed before his Honour concerning what effect the drugs had had upon the applicant.

15 In written submissions, Mr Ramage QC, who appears on behalf of the applicant, complained that “the sentencing judge erred in imposing a sentence for detaining for advantage” since there was neither a taking nor a detaining. He did not press that contention in oral argument. Indeed there was no appeal lodged against conviction in respect of that offence. Moreover a plea of guilty was entered by the applicant who was, at all times, represented by counsel. Nor was any evidence led to call into question the integrity of the plea. In any event the uncontested evidence clearly provided a proper basis for the entering of the plea. It may be observed that “detaining” is defined in s 86 of the Crimes Act to include “causing a person to remain where he or she is”.

16 It is common ground that although the applicant pleaded guilty it was not a plea entered at the first available opportunity since it was only entered on the day of trial. Nevertheless the applicant was still entitled to a discount to reflect the utilitarian value of the plea. The sentencing judge did not quantify the extent of the discount which was allowed. Nor was his Honour obliged to quantify it although sentencing judges are of course encouraged to do so in order to ensure that there is a measure of transparency about the sentencing process.

17 Having observed that it was not a plea entered at the first available opportunity, his Honour went on to observe that “nevertheless his plea does have a utilitarian benefit saving the cost of a trial in which the accused would have faced a strong Crown case”. I accept the submission advanced on behalf of the applicant that his Honour has, in so expressing himself, fallen into error in impermissibly having linked the strength of the Crown case to an assessment of the utilitarian value of the plea. As this Court made plain in R v Thomson and Houlton (2000) 49 NSWLR 383, the strength of the Crown case is relevant only to the question of remorse. It is also pertinent to observe that as a consequence of the plea in the present case, the victim was relieved of the ordeal of having to give evidence against the applicant. Error having been established it is appropriate for the court to intervene and proceed to re-sentence the applicant.

18 In any event I have come to the view that the applicant’s primary submission that the sentences are manifestly excessive is also made out. Although the objective gravity of the offences warranted the imposition of a custodial sentence, the severity of the sentences actually imposed in my view clearly exceeded what the circumstances required particularly in light of the spontaneous nature of the offences themselves and the applicant’s favourable personal circumstances. In re-sentencing the applicant I have also had regard to an affidavit sworn yesterday by Ms Bell in which she states that she and the applicant have “fully reconciled” and wish to resume living together when he is released from custody. She states that she has been regularly visiting him and that during the course of those visits he has expressed his remorse to her for his conduct. She accepts that the applicant deeply regrets his actions. Additional material has been placed before the court which indicates that the applicant has been engaged in productive employment whilst he has been in custody. I would, for reasons identified by the sentencing judge make a finding of “special circumstances”. Having considered all the factors which are relevant to the re-sentencing exercise, I propose the following orders.

I Grant leave to appeal.

2 Allow the appeal and quash the sentences imposed in the District Court.

3 In respect of the offence of detain for advantage, sentence the applicant to imprisonment for 12 months to date from 10 March 2004.

4 In respect of the offence of malicious wounding, and taking into account the Form 1 matter, sentence the applicant to 2½ years imprisonment with a non-parole period of 12 months with each term to commence on 10 September 2004. The total effective head sentence is thus one of 3 years which will expire on 9 March 2007. The overall non-parole period will expire on 9 September 2005 at which time the applicant is to be released on parole.

19 GROVE J: I agree with the orders proposed by Buddin J for the reasons which he has given.

20 BELL J: I also agree.

21 GROVE J: The orders of the court will be as proposed by Buddin J.

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12/08/2005 - Incorrect date for commencement of non-parole period - Paragraph(s) Coversheet in DecisionParagraph 18 (4)