R v Deng

[2007] NSWCCA 216

New South Wales
Court of Criminal Appeal

CITATION:	Regina v Deng Mading DENG [2007] NSWCCA 216
HEARING DATE(S):	27/06/07
JUDGMENT DATE:	2 August 2007
JUDGMENT OF:	Mason P at 1; James J at 2; Hislop J at 87
DECISION:	Appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Mulato v Regina [2006] NSWCCA 282 R v AJP (2004) 150 A Crim R 575 R v Birks (1990) 19 NSWLR 677 R v Dickinson [2004] NSWCCA 457 R v Fordham (1997) 98 A Crim R 359 R v Goodwin (1990) 51 A Crim R 328 R v Macadam-Kellie [2001] NSWCCA 170 R v Maharaj [2004] NSWCCA 387 R v Slack [2004] NSWCCA 128 R v Wall [2002] NSWCCA 42 R v Way (2004) 60 NSWLR 168 R v Wickham [2004] NSWCCA 193
PARTIES:	REGINA v Deng Mading DENG
FILE NUMBER(S):	CCA 2007/1016 CCAP
COUNSEL:	T W Thorpe - Crown D Dalton - Respondent
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) Solicitor for Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/3159
LOWER COURT JUDICIAL OFFICER:	Walmsely DCJ

2007/1016

MASON P
JAMES J
HISLOP J

Thursday 2 August 2007

REGINA v Deng Mading DENG

Judgment

1 MASON P: I agree with James J.

2 JAMES J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Deng Mading Deng by his Honour judge Walmsley SC in the District Court on 4 April 2007. There had already been hearings of the proceedings on sentence on 13 November 2006 and 30 March 2007.

3 For an offence of malicious wounding with intent to do grievous bodily harm committed on 5 February 2006, to which the respondent had pleaded guilty, Judge Walmsley sentenced the respondent to a non-parole period of imprisonment for two years commencing on 13 April 2007, with a balance of the term of one year, and ordered that the sentence be served by way of periodic detention. The Crown appeal against the sentence imposed on the respondent was instituted on 19 April 2007.

4 Malicious wounding with intent to do grievous bodily harm is an offence under s 33 of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years. Under Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act there is a standard non-parole period for the offence of seven years.

The Sentencing Judge’s remarks on sentence

5 In the proceedings on sentence a statement of agreed facts was admitted into evidence and in his remarks on sentence the sentencing judge stated the facts of the offence by repeating almost verbatim the contents of the agreed statement of facts. I will now set out those paragraphs of his Honour’s remarks on sentence. The parts which I have placed in brackets were comments by his Honour on the agreed facts.

“The facts which give rise to the matter, as set out in the statement of agreed facts, are as follows. At about noon on Sunday 5 February 2006 Paul Garang Ajang, the victim, was socialising with friends at a unit in Memorial Avenue Merrylands. The offender was also present. At about 12.05pm the victim announced that he was going to church. He walked out of his friend’s unit with the intention of walking around the corner to the church in St Anne Street. The offender followed him. The victim walked down the stairs of the unit block and outside to near some rubbish bins. Whilst walking the victim felt a sudden sharp pain in his back. [It appears the offender had stabbed him]. He turned and saw the offender standing behind him. The offender then punched and stabbed the victim a further three times to the chest whilst uttering the words ‘I will kill you’.
Samuel Ajang Jong saw this and yelled out ‘Deng, Deng, Deng’. The offender turned and looked at Mr Ajang Jong before running off across Memorial Avenue towards the police station. The victim, who by now was on the ground, said to Mr Ajang Jong ‘I have been stabbed by Deng’. Mr Ajang Jong called the police and ambulance. Philip Hellams also witnessed the offender’s attack upon the victim from a nearby balcony. He too made a triple-0 call. The attending ambulance officers observed that the victim was bleeding from an approximately six centimetre laceration to the left lateral flank. This was the largest of the four stab wounds inflicted upon the victim.
By 12.10pm, that is, five minutes later, the offender had entered Merrylands Police Station, admitted to Constables Walters and Webb that he had stabbed someone, and had been placed under arrest.
At 12.42pm the victim was conveyed by ambulance to the emergency department at Westmead Hospital where it was noted that he had sustained three stab wounds to the left side of the chest and one posteriorly to the left side of the back at the mid scapular line. One of the stab wounds injured the victim’s spleen and another punctured the victim’s left lung.
Police attended the crime scene and noticed what looked like blood on the ground. They found the knife used by the offender in some nearby garden bushes. (Two photographs of the knife used by the offender were annexed to the agreed facts). Later that afternoon the offender was interviewed by police. Again he admitted he had stabbed the victim
On 14 February 2006 the victim was discharged from hospital. On 13 November 2006 the offender pleaded guilty upon arraignment to one charge of maliciously wounding Paul Garang Ajang with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900.”

6 In his remarks on sentence the sentencing judge found that the aggravating factors in s 21A(2)(c) of the Crimes (Sentencing Procedure) Act, that is the actual use of a weapon, and in s 21A(2)(j), that is that the offence was committed while the respondent was on conditional liberty, were present.

7 As to whether the aggravating factor in s 21A(2)(c) was present, his Honour commented that, while there would be few offences of malicious wounding with intent to do grievous bodily harm which did not involve the use of a weapon, nevertheless the use of a weapon in committing such an offence is an aggravating factor. His Honour’s comments were in accordance with what was said by Barr J, with the concurrence of the other members of the Court of Criminal Appeal, in R v Dickinson [2004] NSWCCA 457 at (23), where Barr J observed that, while many and perhaps most charges of malicious wounding involved the use of a weapon, that is not necessarily the case and the use of a weapon is not an element of the offence.

8 It was submitted by the Crown in the proceedings on sentence that the aggravating factor in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act was also present, that is that “the injury, emotional harm, loss or damage caused by the offence was substantial”. In his remarks on sentence the sentencing judge noted the physical injuries the victim had received, as set out in the statement of agreed facts. His Honour decided that he should treat with caution a victim impact statement by the victim and his Honour was not persuaded that the Crown had established that the aggravating factor in s 21A(2)(g) had been present.

9 As I have already noted, there is a standard non-parole period for offences under s 33 of the Crimes Act. At par 17 of his remarks on sentence the sentencing judge posed the question whether there were reasons not to impose the standard non-parole period for the respondent’s offence. Having posed this question, the sentencing judge summarised what he described as “the background to the offence” and the submissions which had been made to him in the proceedings on sentence by counsel then appearing for the respondent and by the Crown Prosecutor.

10 His Honour’s statement in his remarks on sentence of the background to the offence was derived from a pre-sentence report, a report by a psychologist Emma J Collins and evidence given by the respondent himself in the proceedings on sentence. His Honour’s statement of the background to the offence in pars 18 to 31 of his remarks on sentence was as follows:-

“18. The offender was born in Sudan on 1 January 1974. At the time of the offence he was thirty-two. His early childhood was spent in conditions of war. He had to travel by foot three hours each way to school. Because of the. war there were times when he could not attend school. When he was sixteen, fighting broke out near his school. A group of rebels took local members of the community, including him, to Kenya via Ethiopia. They travelled in harsh conditions by foot with little food or water. In Ethiopia, and later in Kenya, he came under the care of the UN. He attended schools in Ethiopia and Kenya. By 1997 he had reached the equivalent of the beginning of year eleven in Kenya. Altogether he lived in Kenya for nine years.

19. When he left Sudan he was separated from his six siblings and his parents. Years later, in Kenya, he made contact with his mother and learned where his siblings were. From the time he left Sudan until he was about nineteen he was quite apart from his family, living in refugee camps with no family contact.

20. He was accepted as a refugee in Australia and came here in 1999, having tried for a number of years to be accepted here as a refugee. He became an Australian citizen in 2002.

21. Initially he settled in Brisbane but there were few work opportunities for him there.

22. In 2000 he came to live in Sydney. He found work. He has been working ever since. Initially he lived alone in Blacktown. Then, with a view to finding his family and becoming their sponsor and bringing them to Australia, he rented a large house. In 2004 his mother and his siblings, (apart from an elder brother, who stayed in Sudan), and three cousins, joined him in Sydney. Apart from the cousins, who have since moved out of the house, he and his mother and five younger siblings have all lived together ever since. His father remains living in Sudan.

23. The siblings who live with him range in age from fourteen and a half to twenty. They are all at school. He supports all of them. He also supports his mother. Of the elder two, one, a sister, is in year eleven and the other, a brother, is in year ten. His mother, although she is having lessons, speaks little English. She and the elder two siblings receive social security payments between them of about $380 per week.

24. The offender is the only wage earner in the family. By saving his earnings after arriving in Australia he sponsored and paid for all of his family to settle here. He has at times held two jobs. Until recently he worked in a chicken processing factory earning $800 to $1,000 per week, depending on availability of overtime. He has also worked as a window and door fixer. The reason he is not currently working is that he has taken time off to complete studies for an agricultural diploma.

25. As his counsel put it to me, he is the man of the house. It is he who negotiates for his mother and siblings when dealing with public service bureaucracy such as social security, and in everyday life, as well as supporting them all financially. In that way he keeps a roof over them.

26. In 2003 in Sydney he met a young Sudanese girl with whom he fell in love. Her name is Trasa Brag. The two had a relationship and she became pregnant to him. Their child was born in late 2005. But there were cultural barriers in the way of their marriage. Though they were from the same Sudanese tribe, they were from different clans of the tribe. Cultural rules permitted them to marry but he had to find a substantial dowry. Although from his inquiries in Sudan it appeared that the dowry would normally be thirty head of cattle, or about six thousand Australian dollars in money value, her family in Sydney demanded twenty thousand dollars.

27. As he was paying to sponsor his family to come here, he could not afford twenty thousand dollars. He tried to resolve the problem by travelling to Sudan to negotiate with her family there. He engaged his father's help. He gave his father the money so that his father could buy the thirty head of cattle. His father bought the cattle.

28. The two of them then travelled together to the border of Uganda and Sudan to meet and negotiate with Trasa's family. But the negotiations failed. The Sydney branch of the family was insistent on the twenty thousand dollar dowry, and the Sudanese branch deferred to them on the issue. An attempt by him on his return to Australia to persuade Trasa to do things the Australian way did not succeed either.

29. The offender then tried to reason with her mother, who had recently settled here, but without success. He was then forbidden from seeing her again, although she was by then pregnant. Worse, in late 2005 the police charged him with sexually assaulting Trasa. That charge, as it happens, was withdrawn in June 2006. It was while he was on bail for that alleged offence that he committed the offence that brings him before me. Not only was he told by her family not to see Trasa again, he was told that he could never see his child. In fact he has seen his child only once, and then by accident, when he met Trasa in Parramatta.
30. Not long after his efforts to marry Trasa had failed he learned that she was to marry the man who later became the victim of this offence. It appears he is from the same clan as Trasa. The offender had known the victim in Kenya and in Brisbane and the two of them had socialised from time to time. When he learned this man was to marry Trasa, he spoke to him about the marriage. The victim was offensive to him. Between the time when they had that conversation, and 5 February 2006, when the offence occurred, the two spoke on several occasions, but they were no longer friendly.
31. The offender told me that on the day of the offence he went to the apartment of a mutual friend, not expecting to see the victim there. The victim arrived later, unexpectedly, he said, and when he left, he stabbed him. Having done so he went directly to the local police station and made a full confession. He told me that at the time of the offence he had been carried away by the events concerning his failed attempt to marry Trasa, on top of which, there was the charge of sexual assault. He appreciated that the victim was following clan rules in marrying Trasa, but he wanted to marry her himself, and took out his anger on him”.

11 In his remarks on sentence the sentencing judge noted that counsel for the respondent in the proceedings on sentence had submitted that, while the attack by the respondent on the victim was “cowardly” and “unprovoked”, nevertheless, because of the background to the offence, the offence should be regarded as falling below the middle of the range of objective seriousness for offences under s 33 of the Crimes Act. It was further submitted that the sentencing judge should find that there had been little planning, that the offence had been committed by the respondent in a state of emotional turmoil and that there had been no long-term harm to the victim.

12 It was also submitted by counsel for the respondent in the proceedings on sentence that further reasons for not imposing the standard non-parole period were to be found in the respondent’s favourable subjective features, including his plea of guilty, the high degree of responsibility he had demonstrated in going immediately to a police station and admitting his guilt, his contrition, the unlikelihood of his re-offending and the truly exceptional hardship which would be caused to others, that is the members of his family, if he was sentenced to full-time imprisonment.

13 In the proceedings on sentence the Crown Prosecutor submitted that the offence committed by the respondent was actually above the middle of the range of objective seriousness for offences under s 33 of the Crimes Act. The Crown pointed to the victim being unarmed, the attack by the respondent on the victim being unprovoked, the number of wounds the respondent had inflicted on the victim and the injuries to the victim’s lung and spleen.

14 After summarising the background to the offence and the submissions made by counsel, the sentencing judge stated that, “in terms of objective seriousness I place the offence above low level but below mid-level”. In reaching this conclusion his Honour did not overlook that the respondent had used a knife to commit the offence. However, his Honour declined to find that the respondent had taken the knife with him to the friend’s unit.

15 In par 41 of his remarks on sentence the sentencing judge said:-

“The attack I find came on the heels of an exceptional set of circumstances. Though the victim was entirely innocent, he was seen, I find, as a symbol for the offender’s frustration and anger brought on by cultural circumstances where accidents of birth disqualified him, without payment of a dowry he could not afford, but which qualified the victim, to marry the woman the offender loved and who had his child”.

16 The sentencing judge noted that the respondent had pleaded guilty and allowed a 20 per cent discount for the utilitarian value of the plea of guilty. His Honour allowed a further discount for the remorse which he considered that the respondent had demonstrated. His Honour found that it was most unlikely that the respondent would re-offend, that his prospects of rehabilitation were excellent and that he was a person of good character, notwithstanding a charge of common assault which had been dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act.

17 His Honour concluded that no sentence other than one of imprisonment would be appropriate and, accepting a submission which had been made on behalf of the respondent, held that an appropriate head sentence would be one of three years only. His Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in the opinions of the psychologist Ms Collins and the Probation and Parole officer who prepared the pre-sentence report that the respondent would benefit from a programme in anger management. Accepting a further submission which had been made on behalf of the respondent, his Honour found that he could properly make an order that the sentence be served by way of periodic detention.

New Evidence on the Appeal

18 On the hearing of the Crown appeal counsel for the respondent sought to rely on some evidence which had not been before the sentencing judge. I will refer to this evidence as “the new evidence”. Counsel said that he would seek to rely on the new evidence, only in the event of the Court of Criminal Appeal deciding to allow the Crown appeal and entering upon a re-sentencing of the respondent. The first notice which had been given to the Crown of the respondent’s intention to seek to rely on the new evidence had been given, only when the respondent’s written submissions were lodged and served, one or two days before the hearing of the appeal.

19 No affidavit or witness statement had been prepared setting out the new evidence. However, at the request of the court, counsel for the respondent outlined the nature of the new evidence. Counsel said that the new evidence would be to the effect that it had been the victim who had produced the knife, that the victim had attacked the respondent, that the respondent had succeeded in disarming the victim and that the respondent had then used the knife himself to stab the victim.

20 Counsel for the respondent said that this account of what had happened in the encounter between the victim and the respondent had been given by the respondent when he was interviewed by police. Neither a recording of the interview by the police or a transcript of what was said in the interview was put before this Court.

21 It was immediately apparent, as was conceded by counsel for the respondent on the appeal, that the new evidence would be in stark conflict with the statement of agreed facts, on the basis of which the sentencing judge had sentenced the respondent.

22 Counsel for the respondent told this Court that counsel for the respondent in the proceedings on sentence, being aware of the version of the facts of the offence contained in the new evidence, had advised the respondent that there was a risk that, if the facts of the offence were contested before the sentencing judge, the respondent might lose such a contest and consequently lose the discounts in sentence for the utilitarian value of a plea of guilty and for contrition to which he would otherwise be entitled. Counsel told this Court “Mr Deng thought it was best to agree to the facts alleged” (that is, as alleged in what became the statement of agreed facts in the proceedings on sentence).

23 Counsel for the respondent told this Court there was no application by the respondent to withdraw the plea of guilty, because, it was conceded, even on the version of the facts in the new evidence, the respondent’s conduct, after gaining possession of the knife, had gone beyond acting in self-defence.

24 Counsel for the respondent explicitly disavowed making any submission that counsel for the respondent in the proceedings on sentence had acted improperly or incompetently in giving the advice he had given the respondent.

25 Counsel for the respondent submitted that the new evidence was admissible, on the ground that, if the Court of Criminal Appeal decides that a Crown appeal against sentence should be upheld and the Court embarks upon itself re-sentencing the respondent, the sentencing of the respondent by the Court of Criminal Appeal is a new sentence proceeding in which the Court of Criminal Appeal is not bound by any rules prohibiting or limiting the admission of fresh or new evidence.

26 Counsel appearing for the Crown on this appeal opposed the new evidence being admitted, even on the limited basis contended for by counsel for the respondent.

27 The Court, having heard argument on the admissibility of the new evidence, announced its decision that it would not admit the new evidence, even on the limited basis contended for, and that it would give reasons for its decision in its general judgment on the appeal. I will now state my reasons for having joined in the decision by the Court that the new evidence should not be admitted.

28 On the hearing of Crown appeals against sentence the Court routinely admits evidence of matters occurring after the date of the original sentencing, on the limited basis that the evidence can be taken into account, if the Court proceeds to a re-sentencing of the respondent (and, indeed, in deciding the prior question whether, although a ground of appeal against sentence has been made out, the Court should, in the exercise of its discretion, decline to allow the Crown appeal). However, the new evidence in the present appeal is clearly not evidence of matters occurring after the date of the original sentencing.

29 During the argument in this Court counsel for the respondent conceded that he had not been able to find a case “which specifically states that evidence on re-sentencing can be across the spectrum”. However, counsel referred to two cases which he said provided some support for his submission. These two cases were R v Macadam-Kellie [2001] NSWCCA 170 and R v Maharaj [2004] NSWCCA 387.

30 In my opinion, neither of these cases provides any support for counsel’s submission.

31 In Macadam-Kellie the offender had appealed against a sentence imposed after he had pleaded guilty to a charge of wounding with intent to murder, that is the same charge as that brought against the respondent. In a report admitted into evidence in the proceedings on sentence a psychiatrist, Dr Niellssen, expressed the opinion that the offender had been suffering from a severe depressive illness and that the commission of the offence was connected to the depressive illness.

32 In another report admitted into evidence in the proceedings on sentence another psychiatrist, Dr Westmore, had also made a diagnosis that the offender had been suffering from depression. However, in his remarks on sentence the sentencing judge said that “Dr Westmore did not really attempt to provide any link between… the major depression (from) which it appears from all the evidence the offender was suffering at the time and the actual commission of this offence”. In his remarks on sentence the sentencing judge said that there was no evidence which he found acceptable that would link the major depression from which the offender was suffering with the commission of the offence.

33 The new evidence which was admitted on the appeal in Macadam-Kellie was a further report by Dr Westmore, which supported Dr Niellssen’s opinion that there had been a connection between the offender’s depressive illness and the commission of the offence. In his further report Dr Westmore accepted that he had not in his previous report made such a connection but added that, if he had given oral evidence in the proceedings on sentence, he would have given evidence making such a connection.

34 Accordingly, the new evidence in Macadam-Kellie which was admitted on the appeal was not evidence about the actions of the offender in committing the offence and was not evidence inconsistent with any of the evidence which had been adduced in the proceedings on sentence. It was further evidence by an expert witness on a matter on which his earlier report admitted in the proceedings on sentence had been silent and which was in accordance with evidence which had been given by another expert witness in the proceedings on sentence.

35 In Maharaj the offender appealed against sentences imposed on him after he had pleaded guilty to a number of offences of dishonesty. In evidence admitted in the proceedings on sentence Dr Westmore, the same psychiatrist who had made two reports in Macadam-Kellie, expressed the opinion that there was no causal link between a physical condition in the offender’s arm and the commission of the offences.

36 On the appeal in Maharaj the offender sought to rely on a report which had been obtained from another psychiatrist in which that psychiatrist expressed the opinion that the condition of the offender’s arm had contributed to the offender’s criminal behaviour. The Court of Criminal Appeal declined to admit this new evidence. Accordingly, the decision of this Court in Maharaj provides no support at all for counsel for the respondent’s submission about the width of the evidence which would be admissible on any re-sentencing of the present respondent.

37 Although the present appeal is a Crown appeal against sentence and counsel for the respondent informed the Court that the respondent would seek to rely on the new evidence, if it was admitted, only in a re-sentencing of the respondent, I nevertheless consider that some guidance can be obtained from the principles which this Court has applied in determining whether to receive fresh or new evidence on an appeal against sentence by a convicted person.

38 In a passage in his judgment in R v Fordham (1997) 98 A Crim R 359 at 377-378, which has frequently been quoted or referred to in subsequent cases, Howie AJ (as his Honour then was) said:-

“Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

However, fresh evidence has been received by this Court where a miscarriage of justice may have occurred because there has been incompetent legal representation at the hearing before the sentencing court: Abbott (1984) 17 A Crim R 355 or where there has been negligence or carelessness in the presentation of the defence: McKenna (unreported, Court of Criminal Appeal, NSW, No 60705 of 1991, 16 October 1992). It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: Goodwin (1990) 51 A Crim R 328: compare De Marco (unreported, Court of Criminal Appeal, NSW, No 60024 of 1993, 20 November 1995). There is also a general power in the court to receive fresh or new evidence where the interests of justice require that course: Many (1990) 51 A Crim R 54.”

39 It is apparent that the new evidence in the present case does not fit within any of the classes of cases described by Howie AJ in Fordham, with the possible exception that fresh or new evidence may be received “where the interests of justice require that course”. The new evidence was available to the defence at the time of the proceedings on sentence and hence was not “fresh”. As previously noted, at the hearing of the appeal counsel for the respondent expressly disavowed making any submission that the respondent had been improperly or incompetently represented by his legal advisers in the proceedings on sentence. At the time of the proceedings on sentence the new evidence was realised by the respondent to be significant and the existence of the new evidence had been made known by the respondent to his legal advisers, so that the new evidence did not fall within the principles stated by this Court in Goodwin.

40 In R v Wickham [2004] NSWCCA 193, a case which was referred to in argument on this appeal, Howie J, who delivered the leading judgment, referred at par 41 to a further basis on which fresh or new evidence will be admitted on an appeal against sentence, that is that the fresh or new evidence amplifies material which was before the sentencing judge, particularly where the offender suffered from a medical condition at the time of the sentencing but its full implications or ramifications were not then known. The present case clearly does not fit within this class of cases.

41 In argument on the appeal counsel for the respondent referred to another part of the judgment of Howie AJ in Fordham where his Honour said (at p 377)”-

“Absent sentencing error which requires the Court to re-sentence an appellant, the Court should in my view, resist attempts to place before it material which was not before the sentencing judge”.

42 Indeed, it would seem that counsel for the respondent referred to Maharaj, principally because in Maharaj Buddin J at par 36 of his judgment had quoted this part of Howie AJ’s judgment in Fordham.

43 I do not consider that this remark by Howie AJ in Fordham should be given the degree of significance which counsel for the respondent sought to attach to it. I would understand his Honour as saying that, if there has not been any sentencing error then, in general, evidence which was not before the sentencing judge will not be admissible on an appeal against sentence and as implying that, if there has been sentencing error, certain kinds of evidence may be admissible on an appeal but not as implying that, if there has been sentencing error, all kinds of evidence which might be relevant to sentencing are admissible on an appeal, notwithstanding that they were not before the sentencing judge.

44 In the same paragraph of his judgment in Fordham in which Howie AJ made the remark I have been discussing, his Honour said:-

“Those representing an accused person before the trial court have a wide discretion to conduct the defence as they see fit and this Court should not generally interfere in the exercise of that discretion (his Honour cited R v Birks (1990) 19 NSWLR 677). I see no reason why that principle should not apply, at least to the same extent, to sentencing proceedings as it does to the actual trial.”

45 In my opinion, this principle applies, not only to appeals by convicted persons against sentence, but to Crown appeals against sentence, including any re-sentencing of a respondent to a Crown appeal.

46 In the present case, counsel for the respondent informed this Court that the respondent’s legal representatives in the proceedings on sentence, being aware of the version of the facts of the offence which the respondent now seeks to advance on the appeal, advised the respondent that the version might not be accepted by the sentencing judge and that, if the facts of the offence were litigated before the sentencing judge and found adversely to the respondent, the respondent would lose the discounts in sentence for the utilitarian value of a plea of guilty and for contrition which he would otherwise receive and that the respondent decided to accept his legal representatives’ advice.

47 As already noted, counsel for the respondent on this appeal did not submit that the respondent’s legal representatives in the proceedings on sentence had acted incompetently or improperly in giving the advice they did. The respondent was sentenced on the basis of a statement of the facts of the offence, which was put before the sentencing judge as an agreed statement of facts. When the respondent was sentenced, he received the benefits which his legal representatives had advised him he should seek to obtain, namely a discount for the utilitarian value of a plea of guilty and a discount for contrition.

48 In my opinion, the respondent is bound by the way in which the proceedings on sentence were conducted and cannot on an appeal, even in a re-sentencing by this Court, adduce evidence about the facts of the offence in conflict with the agreed statement of facts on the basis of which he was sentenced.

49 Furthermore, as a matter of general principle, the Court of Criminal Appeal is not an appropriate forum for resolving contested factual issues that should and could have been addressed at first instance. It is also relevant in the present case that notice of the new evidence was given so late, only one or two days before the date fixed for the hearing of the appeal.

Determination of the Appeal

50 The principal submission made by the Crown on the appeal was that the sentence imposed on the respondent was manifestly inadequate, as not adequately reflecting the objective seriousness of the offence. This submission was directed to both the length of the sentence imposed by the sentencing judge and to the order made by the sentencing judge that the sentence be served by way of periodic detention but particularly to the order that the sentence be served by way of periodic detention.

51 Some more specific criticisms were also made by the Crown. It was submitted that the sentencing judge had erred in not finding that substantial financial and emotional harm had been caused to the victim by the offence. It was also submitted that the sentencing judge erred in finding that the offence fell below the middle of the range of objective seriousness for offences under s 33 of the Crimes Act. It was contended that this would be so, even if the sentencing judge had not erred in declining to find that substantial financial and emotional harm had been caused to the victim by the offence. Even if the sentencing judge had not erred in finding that the offence fell below the middle of the range of objective seriousness, the standard non-parole period of seven years for an offence under s 33 of the Crimes Act remained a reference point.

52 These submissions made by the Crown were disputed by counsel for the respondent. It was submitted by counsel for the respondent that the sentencing judge had not erred in either of the specific ways asserted by the Crown and that the sentence imposed by the sentencing judge including the order for periodic detention, although lenient, was not manifestly inadequate. Counsel for the respondent referred particularly to the decision of this Court in Dickinson.

53 Counsel for the respondent referred to the well known principles governing the determination of Crown appeals against sentence as stated by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at par 70. It was finally submitted by counsel for the respondent that, even if error in the sentencing process was established, this Court in the exercise of its discretion, should refuse to intervene. Reliance was placed on an affidavit by the respondent which had been admitted, without objection.

54 I will now proceed to consider the submissions on behalf of the parties which I have outlined.

Whether the sentencing judge erred in not finding that substantial financial and emotional harm had been caused to the victim by the offence .

55 A victim impact statement by the victim dated 13 February 2007 was admitted into evidence in the proceedings on sentence. The victim did not give oral evidence in the proceedings on sentence.

56 In the victim impact statement the victim alleged that, after he had been injured by the respondent, he had had to leave Sydney and return to Queensland, giving up his employment in Sydney, that he had suffered pain continuously, that he was taking medication for his pain, that he had received medical advice that he should rest for two and a half years without doing any physical work so that his internal injuries could heal and that since the offence he had often been fearful.

57 In his remarks on sentence the sentencing judge held that he should apply what had been said by this Court in R v Slack [2004] NSWCCA 128 and, having done so, that he was not satisfied to the criminal standard of proof that the financial and emotional harm suffered by the victim had been substantial.

58 Under s 28 of the Crimes (Sentencing Procedure) Act a court, if it considers it appropriate to do so, may receive and consider a victim impact statement before it sentences an offender.

59 In R v Slack Sperling J, with whom Simpson J agreed, considered victim impact statements, particularly at pars 58 to 62 of his judgment. Sperling J accepted that harm to the victim of an offence is a relevant consideration in sentencing an offender. However, at par 62 of his judgment Sperling J said:-

“ The Court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily but almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim”.

60 In the present case, it would seem likely to me, from the way in which the victim impact statement is expressed, that the victim impact statement is in the victim’s own words. However, it remains the position that the statement was unsworn, untested and, especially if its language is taken into account, unlikely to be an objective and impartial account of the harm actually caused to the victim by the offence.

61 In my opinion, it was open to the sentencing judge to decline to be satisfied to the criminal standard of proof that the victim had suffered substantial financial and emotional harm by reason of the offence.

Whether the sentencing judge erred in finding the offence fell below the middle of the range of objective seriousness for offences under s 33 of the Crimes Act .

62 It was submitted by the Crown that, on the agreed facts on the basis of which the respondent had been sentenced, the respondent had engaged in an unprovoked and cowardly attack on the victim, the respondent had used a knife, the respondent had stabbed the victim a number of times and, whether or not the aggravating factor in s 21A(2)(g) of the Crimes (Sentencing Procedure) Act had been present, the victim had been hospitalised for nine days and had suffered injuries to his spleen and lung.

63 As noted earlier in this judgment, the sentencing judge was correct in regarding the use of a knife as an aggravating factor in committing an offence within s 33 of the Crimes Act.

64 It was relevant to the objective seriousness of the offence that the respondent had been on conditional liberty at the time of committing the offence, even though in respect of a charge which was later withdrawn.

65 In reaching his conclusion about the level of objective seriousness of the offence the sentencing judge took into account the background to the offence, which he described in pars 18-31 of his remarks on sentence which I quoted earlier in this judgment.

66 In my opinion, the sentencing judge could properly take into account the background to the offence as being facts which explained why the offence was committed and as being relevant to the mens rea of the respondent at the time of committing the offence.

67 In par 118 of the judgement of this Court in R v Way (2004) 60 NSWLR 168, which remains the leading judgment on Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act, the Court said that the question whether there are reasons for not imposing the standard non-parole period for an offence would be answered by considering inter alia “the objective seriousness of the offence, considered in the light of the facts which relate directly to its commission, including those which may explain why it was committed”.

68 In R v AJP (2004) 150 A Crim R 575 Simpson J in a passage in her judgment which has since been quoted with approval, said at 580 (14):-

“ Circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence)….”

69 This Court has stressed that it should be cautious in interfering with a sentencing judge’s assessment of the level of the objective seriousness of an offence for the purpose of applying Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act. In Mulato v Regina [2006] NSWCCA 282 Spigelman CJ said at (37):-

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside a judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not a particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour …”.

70 In par 45 of her judgment in Mulato Simpson J said that she agreed “most emphatically” with the observations the Chief Justice had made in par 37 of his judgment.

71 In my opinion, in the present case it was open to the sentencing judge, after taking into account the background to the offence, which was relevant to the respondent’s mens rea at the time of committing the offence and which explained why the offence was committed, and after making the findings in par 41 of his remarks on sentence, to find that the offence fell below the middle of the range of objective seriousness for offences under s 33 of the Crimes Act.

72 The sentencing judge, while finding that the objective seriousness of the offence was below the middle of the range, correctly observed that the standard non-parole period remained as a reference point or benchmark or guidepost in the sentencing of the respondent.

Whether the sentence was manifestly inadequate

73 Counsel for the respondent relied heavily on the decision of this Court in Dickinson, as indicating that the sentence to be served by way of periodic detention imposed on the respondent should not be held to be manifestly inadequate.

74 In Dickinson a Crown appeal against a sentence for malicious wounding with intent to do grievous bodily harm was allowed by the Court of Criminal Appeal.

75 In Dickinson the offender had been in a relationship with a young woman by whom he had had a child. The young woman had subsequently entered into a relationship with the man who was the victim of the offence. The offender, armed with a carving knife, had gone to a house where the victim was and had attacked the victim with the carving knife. To save himself from being stabbed, the victim had taken hold of the blade of the carving knife and had suffered a serious injury to one of his hands. The victim and another man who was present had succeeded in disarming the offender.

76 The sentencing judge found that Dickinson had genuinely, but quite unreasonably, held fears for the safety of his child. In favour of the offender the sentencing judge found that the offence was unplanned, that the offender had no relevant criminal record, that he was of previous good character, that he had good prospects of rehabilitation, that he was remorseful and that he had pleaded guilty.

77 The sentencing judge sentenced the offender to imprisonment for two years with a non-parole period of twelve months and ordered that the sentence be suspended upon the offender entering into a bond under s 12 of the Crimes (Sentencing Procedure) Act.

78 On the Crown appeal the Court of Criminal Appeal held that the sentencing judge had committed a specific error in that he had failed to regard the use of a knife as an aggravating factor in an offence within s 33 of the Crimes Act. The Court of Criminal Appeal also held that the sentence imposed by the sentencing judge was manifestly inadequate in that it did not adequately reflect the gravity of the offence, viewed objectively. The Court allowed the Crown appeal and re-sentenced the offender to a sentence of imprisonment for two years two months (after making an allowance for a period of almost four months during which the offender had been in custody) and ordered that the sentence be served by way of periodic detention.

79 On this appeal counsel for the respondent submitted that the sentence imposed by the Court of Criminal Appeal in re-sentencing Dickinson, in a case which, it was contended, was fairly similar to, or worse than, the present case, showed that the sentence imposed on the present respondent to be served by way of periodic detention was within the range of sentences within a proper exercise of the sentencing judge’s sentencing discretion. Even though the sentence imposed by this Court in Dickinson was imposed after a successful Crown appeal and was expressly stated by the Court of Criminal Appeal to be less than the sentence which should have been imposed at first instance, it was nevertheless considered by the Court of Criminal Appeal to be within the range of permissible sentences, even if at the low end of that range.

80 I accept that this Court should have some regard to the decision in Dickinson. However, Dickinson remains a single decision on its own facts, some of which are dissimilar to the facts in the present appeal and this Court should not endeavour to determine the present appeal by attempting to make a point by point comparison of the present case with Dickinson.

81 I have already set out and will not repeat the objective facts of the offence as stated in the agreed statement of facts, the background to the commission of the offence as found by the sentencing judge and the subjective features of the respondent. In my opinion, the objective facts of the offence (and particularly the aggravating factors referred to by the Crown in its submissions), even after taking into account the background to the commission of the offence as found by the sentencing judge and the favourable subjective features of the respondent, require a conclusion that a sentence of imprisonment for three years to be served by way of periodic detention was manifestly inadequate.

82 However, it does not necessarily follow that the Crown appeal should be allowed. As stated by the former Chief Judge at Common Law in Wall, the Court “has a lively discretion to refuse to intervene, even if error has been shown”.

83 On the appeal the Court received, without objection, an affidavit by the respondent, dealing mainly with matters arising after the respondent was sentenced. The affidavit emphasises the quite extraordinary degree to which the respondent’s mother and the respondent’s younger brothers and sisters rely on the respondent and the quite extraordinary hardship which would be imposed on them if the respondent was sentenced to full-time imprisonment. The respondent’s mother does not speak English at all and none of the respondent’s brothers and sisters speak English well. The respondent is truly “the man in the family”.

84 The affidavit discloses that the respondent’s mother is seriously ill, that she has been hospitalised and that she will undergo surgery in August.

85 Since he was sentenced the respondent has attended every weekend at the Periodic Detention Centre to serve his sentence and he has not been the subject of any misconduct charges. The respondent has been undertaking studies to obtain a qualification in agriculture.

86 In my opinion, notwithstanding that I consider that the sentence was manifestly inadequate, the Crown appeal should, in the exercise of this Court’s discretion, be dismissed.

87 HISLOP J: I agree with James J

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