R v Dinh

[2010] NSWCCA 74

Reported Decision: 199 A Crim R 573

New South Wales

Court of Criminal Appeal

CITATION:	R v Dinh [2010] NSWCCA 74
HEARING DATE(S):	15 December 2009
JUDGMENT DATE:	3 May 2010
JUDGMENT OF:	Basten JA at 1; Howie J at 2; Johnson J at 3
DECISION:	1. Leave granted to amend the notice of appeal by adding the grounds set out at [33] of the judgment. 2. Crown appeal allowed. 3. Sentence imposed in the Sydney District Court on 27 August 2009 quashed. 4. In its place, and taking into account the offences on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of four years to date from 14 January 2010 and to expire on 13 January 2014 with a balance of term of two years commencing on 14 January 2014 and expiring on 13 January 2016. The earliest date upon which the Respondent will be eligible for release on parole is 13 January 2014.
CATCHWORDS:	CRIMINAL LAW - Crown appeal on sentence - offence of applying corrosive fluid with intent to burn under s.47 Crimes Act 1900 - acid attack - offender subject to bond and suspended sentence - objective seriousness of offence - manifestly inadequate sentence - relevance of Crown approach in District Court - whether Court should decline to resentence on discretionary grounds - Court should proceed to resentence offender - accumulation, concurrency and totality as between previously suspended sentence and sentence imposed on Crown appeal
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Crimes (Life Sentences) Amendment Act 1989 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v JW [2010] NSWCCA 49 Ibbs v The Queen [1987] HCA 46; 163 CLR 447 R v Tan [2007] NSWSC 684 R v Difford [2001] QCA 359 R v Williams [2002] QCA 142 R v Woodman [2009] QCA 197 R v SK and OZ [2001] NSWCCA 492) R v Ohanian (Moore ADCJ, unreported, 16 December 2002) R v Hickey (Blanch CJ, unreported, 4 August 2006) R v Scamakas (Garling DCJ, unreported, 9 November 2006) Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53 R v Araya [2005] NSWCCA 283; 155 A Crim R 555 Han v R [2009] NSWCCA 300 Attorney General’s Application Under S.37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 Power v The Queen [1974] HCA 26; 131 CLR 623 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Edwards v R [2009] NSWCCA 199 GAS v The Queen [2004] HCA 22; 217 CLR 198 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 Hejazi v R [2009] NSWCCA 282
PARTIES:	Regina (Appellant) Tuan Kach Dinh (Respondent)
FILE NUMBER(S):	CCA 2009/3279
COUNSEL:	Ms M Cinque (Appellant) Mr MW Shaw (Respondent)
SOLICITORS:	Solicitor for Public Prosecutions (Appellant) Murphy's Lawyers (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/11/0121
LOWER COURT JUDICIAL OFFICER:	Morgan DCJ
LOWER COURT DATE OF DECISION:	27 August 2009

2009/3279

BASTEN JA
HOWIE J
JOHNSON J

3 May 2010

R v Tuan Kach Dinh

Judgment

1 BASTEN JA: I agree with the orders proposed by Johnson J, for the reasons he gives.

2 HOWIE J: I agree with Johnson J.

3 JOHNSON J: The Crown appeals under s.5D Criminal Appeal Act 1912 against sentence imposed at the Sydney District Court on 27 August 2009 upon the Respondent, Tuan Kach Dinh, for an offence of applying a corrosive fluid, namely acid, with intent to burn contrary to s.47 Crimes Act 1900, an offence punishable by imprisonment for 25 years.

4 The Respondent was sentenced to a non-parole period of two years and six months commencing on 22 September 2008 and expiring on 21 March 2011 with a balance of term of two years commencing on 22 March 2011 and expiring on 21 March 2013. In passing sentence, the District Court was asked to take into account on a Form 1, offences of possess prohibited drug (heroin), possess prohibited drug (cannabis leaf), goods in custody (an AFP video camera) and hinder a police officer in the execution of duty.

5 On 29 September 2009, the Deputy Director of Public Prosecutions signed a Notice of Intention to Appeal which was served personally on the Respondent on 6 October 2009.

Facts of Offence and Form 1 Matters

6 An Agreed Statement of Facts was tendered in the District Court which revealed the following. The Respondent’s parents had separated and his father had been in a relationship for about two years with the victim. The victim and the Respondent’s father lived together at the victim’s home.

7 It appears that the Respondent’s mother was jealous of the relationship between the victim and the Respondent’s father. The Respondent was living with his mother.

8 At about 6.00 pm on Sunday, 21 September 2008, the victim went to a wedding at a restaurant at Leichhardt. She left the restaurant at about 9.30 pm. As she walked to her car, she saw a male on the driver’s side of the vehicle running from the back to the front of the car to face her. That person was the Respondent. The victim heard the Respondent say in Vietnamese “Fuck, where is [the victim]?” The victim recognised the Respondent’s voice. At the time, the Respondent was wearing a balaclava.

9 The victim saw that the Respondent was holding a knife in one hand with a blade about five centimetres wide and 30 centimetres long. In the other hand, the Respondent was holding something which the victim was not able to identify. The victim was frightened and ran around the Respondent towards the restaurant and on to a flowerbed next to the road. She was so frightened that she was not able to call out.

10 The victim then saw a second male running towards her on her right across the road. The second male was also wearing a balaclava.

11 The victim tripped over the flowerbed and landed face down. She started to get up, but the Respondent and the other male overpowered her on the ground. Whilst she was being held down by her shoulders by the two men, she could hear a spraying sound and felt something being sprayed on her. She covered her face with both hands. She felt very hot and her back and right arm hurt. As the males stepped away, she yelled out for help. She took off her shoes and ran towards the restaurant. As she ran, she took off her jacket because her skin was very hot. As she ran into the restaurant, her assailants ran away from her.

12 When the victim arrived at the restaurant doors, she asked for someone to call an ambulance and the police. She was taken by ambulance to Royal Prince Alfred Hospital. Given the nature of the complaint that she had been sprayed with a liquid to her body, the victim was decontaminated in the showers outside the Emergency Department. On examination, she had superficial partial thickness burns to the posterior aspect of her right trunk and right arm. She was treated with a tetanus booster and dressing, to be followed up in the Plastic Dressings Clinic. The victim remained an outpatient at the Royal Prince Alfred Hospital until her discharge on 22 September 2008.

`

13 The attack upon the victim was witnessed by two children under 18 years of age.

14 I return to events at the scene of the crime on the evening of 21 September 2008. When police arrived at the scene, Senior Constable David Catron observed a male jogging in a southerly direction along Fraser Street, Leichhardt towards the police car. He called out to the male to stop, but he continued to run. Senior Constable Catron took chase and observed the male getting into a dark-coloured Toyota four-wheel drive vehicle via the driver’s door. Senior Constable Catron tried to open the door, but it was locked. He observed a second male running towards him, and saw that person was wearing a balaclava. The second male ran in a northerly direction along Fraser Street. Senior Constable Catron chased the second male, who entered the Toyota vehicle via the rear passenger door. Senior Constable Catron reached into the vehicle and took hold of the second male and held onto his clothing. As he did so, the wheels of the vehicle screeched and the vehicle began to pull away from the kerb whilst the police officer still had hold of the male. As the speed of the vehicle increased, Senior Constable Catron lost his grip on the male and fell backwards from the vehicle. As the vehicle sped away, Senior Constable Catron noted the registration number of the vehicle.

15 As Senior Constable Catron was getting into the Toyota, Constable Maree Vial approached the rear of the Toyota to record the registration number, which she began to write on her hand. She observed that the last two letters of the number plate were covered by foil, which she removed for the purposes of recording the full registration number. The foil was later tested for fingerprints and a left middle fingerprint of the Respondent was located on it.

16 The Toyota vehicle was registered in the name of the Respondent’s mother, with the registered address being that of the Respondent and his mother.

17 During the evening of 21 September 2008, the Respondent’s mother and her 13-year old son went to Kings Cross Police Station, where the 13-year old son said he wished to report that their Toyota four-wheel drive vehicle had been stolen. The boy spoke to police in English and acted as interpreter as between his mother and police.

18 The Toyota vehicle was subsequently located by police on 7 October 2008 at Redfern. The vehicle showed no signs of forced entry. It was locked and appeared to be secured. The vehicle was towed to police custody where it was examined forensically. Inside the vehicle were found:

(a) a knife under the rear passenger seat - the knife was consistent with the description given by the victim of the knife brandished during the acid attack;

(b) an invitation to the wedding at Leichhardt on 21 September 2008 which was attended by the victim;

(c) an envelope with the victim’s vehicle registration number handwritten on it;

(d) a Rozelle service station receipt for 8.44 pm on 21 September 2008.

19 The fabric on the rear offside passenger seat of the vehicle was observed to be discoloured. Dr Karen Cavanagh-Steer tested the fabric and found that it was affected by an acidic compound containing nitrate. The victim’s coat worn on 21 September 2008 was examined and was found to be similarly affected.

20 At 7.30 am on Tuesday, 23 September 2008, police executed a search warrant at the Respondent’s home at Woolloomooloo. The Respondent was present, and police observed his right lower leg was bandaged. He was asked to remove the bandage, which covered burns to his leg similar to the burns received by the victim. Police described the burn marks on the Respondent’s leg as a “distinct drip mark”. The Respondent said (falsely) that he received the injury working in a metal shop. The Respondent was medically examined on the afternoon of 23 September 2008, and superficial burns, with a blistering to the dorsal aspect, were observed on his lower leg.

21 Dr Carol Clifford examined photographs of the injuries to both the victim and the Respondent. She expressed the opinion that the victim’s injuries were consistent with caustic fluid having been poured onto her skin. The Respondent’s injuries indicated a caustic-type burn with a drip-like pattern, consistent with caustic material dripping on his skin.

22 During the execution of the search warrant upon the Respondent’s premises, police took possession of his mobile phone and observed an undelivered message at 8.05 am on 23 September 2008 that said “I’ve been grabbed by the cops do not say nothing on the phones”.

23 During the search of the Respondent’s premises, police located .03 grams of heroin in his bedroom (Offence 1, Form 1). Also located in his bedroom was a Sony video camera, the property of the Australian Federal Police, bearing a sticker that said “AFP Asset No.” (Offence 2, Form 1). Also located in the Respondent’s bedroom was .1 gram of cannabis leaf (Offence 4, Form 1).

24 During the course of the execution of the search warrant, and after police had located the small amount of heroin in the Respondent’s bedroom, the Respondent’s mother fainted and an ambulance was called to treat her. Whilst waiting for the ambulance, the police suspended the execution of the search warrant. When the search was recommenced, police discovered that the heroin was missing from the table where it had been left pending completion of the search. The Respondent was requested to remove his underwear and squat down and police observed a lighter protruding from his anus. After discussion in which police foreshadowed an internal examination at hospital, the Respondent produced from his anus a piece of foil containing the heroin which he had picked up from the table, and secreted in his anus (Offence 3, Form 1).

25 The Respondent was arrested and charged on 22 September 2008 and has been in continuous custody since then.

The Respondent’s Subjective Circumstances

26 The Respondent was 21 years’ old at the time of the offence and 22 years of age at the time of sentence. His criminal history includes appearances before the Children’s Court in 2002 and 2005 for offences of receiving and assaulting a police officer in the execution of duty, and possession of a prohibited drug for which he was placed on probation.

27 He was sentenced in the Local Court in 2005 and 2007 (twice) for offences of driving whilst disqualified, involving escalating sentencing orders in the form of a bond, a community service order, periodic detention and, by way of call-up at the Sydney District Court in September 2007, a sentence of two months’ imprisonment.

28 On 25 July 2008, the Respondent was sentenced by Ellis DCJ at the Parramatta District Court, for supplying a prohibited drug, to a suspended term of imprisonment for 22 months, subject to a good behaviour bond involving acceptance of supervision by the Probation and Parole Service and compliance with reasonable directions concerning treatment and counselling for alcohol and drug use and relapse prevention. In passing sentence upon the charge of supplying a prohibited drug, the District Court took into account on a Form 1, two offences of possession of a prohibited drug and goods in custody. A sum of $11,000.00 seized by police was ordered to be forfeited.

29 It will be apparent that the present offence was committed by the Respondent less than two months after imposition of this suspended sentence. The Respondent had not been called up for breach of the suspended sentence by the time this Court came to hear the Crown appeal on 15 December 2009, an issue to which I will return later in this judgment.

30 No oral evidence was adduced in the defence case at the sentencing hearing. A report of Mr Taylor, psychologist, dated 16 August 2009 was tendered, together with two references from friends of the Respondent’s mother and the Respondent.

31 It is apparent from the Respondent’s criminal history that he has used illegal drugs for some time, and the Respondent informed Mr Taylor that he had continued to use drugs between July and September 2008, including heroin and ice.

The Crown Appeal

32 Notice of Intention to Appeal under s.5D Criminal Appeal Act 1912 was given by the Deputy Director of Public Prosecutions on 29 September 2009. The Notice of Appeal did not contain any grounds of appeal, but that does not affect the validity of the appeal: R v JW [2010] NSWCCA 49 at [33].

33 In written submissions filed by the Crown on 6 November 2009, it was submitted that the sentence imposed upon the Respondent was manifestly inadequate. The Crown submissions identified the errors alleged. The Respondent did not submit that the notification of the grounds in the Crown written submissions operated unfairly to the Respondent. The Crown contended that the sentencing Judge fell into error in concluding that the objective circumstances of the offence “fell towards the lower range for offences such as this”, and that her Honour failed to impose a sentence which reflected all the aggravating factors applicable to the offending. In accordance with the practice proposed in R v JW at [33], [36], the Crown seeks leave to amend the notice of appeal to include the grounds which had been identified and argued in previous written and oral submissions. In the circumstances, the Crown should have leave to amend the notice of appeal by identifying the following grounds:

“Ground 1: Her Honour erred by forming the view that the objective circumstances of the offence ‘fell towards the lower range for offences such as this’.

Ground 2: In the alternative to Ground 1, her Honour erred by failing to reflect the finding that the criminality ‘fell towards the lower end of the range for such offences’ in the sentence imposed.

Ground 3: Her Honour erred by failing to impose a sentence which reflected all of the aggravating factors applicable to the offending.

Ground 4: The sentence is manifestly inadequate.”

34 The Crown submitted that the objective seriousness of the offence was substantial and the offence was committed in breach of a suspended sentence, so that the sentence imposed upon the Respondent was manifestly inadequate.

35 Mr Shaw, counsel for the Respondent, submitted that no error had been demonstrated, nor had it been established that the sentence was manifestly inadequate so that the appeal ought be dismissed. In addition, he sought to rely upon the approach of the Crown in the District Court in support of an argument that the appeal ought be dismissed on discretionary grounds if error was established.

Some Findings of the Sentencing Judge

36 It is appropriate to refer to certain passages in the remarks on sentence.

37 After reciting the facts (ROS2-8), the sentencing Judge adverted to the Respondent’s criminal history, and the references and report of Mr Taylor (ROS8-11). Her Honour observed that much of the material in Mr Taylor’s report emanated from the Respondent who had not given evidence and that “very considerable caution should be exercised in relying on self-serving statements made” so that “only very limited weight should be given” to such statements (ROS12).

38 Her Honour referred to the Respondent’s criminal history and the fact that the offence was committed in company, and whilst the Respondent was subject to a suspended sentence (ROS12-13).

39 A finding was made that this was a planned offence (ROS13):

“It also appears to me as an aggravating factor that this was a planned offence. I must say that, on the evidence before me, contained within the agreed facts, I cannot agree with the view of Mr Taylor who stated that from the information he obtained from the offender that this was something which was committed impulsively due to the distress he was feeling caused by the victim's relationship with his father. Indeed, the evidence is all the other way, one might think. It was a matter that there was some planning that went into it, that a knife was obtained, fluid was obtained, other persons were invited, it would seem, to accompany him. The men, including the offender, were wearing balaclavas, and as well there had been an attempt to cover a part of the number plate of the motor vehicle he was driving, and it would seem as if the offender himself had a role in that as his fingerprint was found on the material.”

40 Her Honour observed that the physical injuries sustained by the victim were not substantial, but observed that the victim “would have been extremely frightened by being confronted by two men, even though she knew one of them was the offender, and held to the ground and some liquid poured onto her” (ROS13).

41 A discount “in the order of 10%” was allowed for the plea of guilty indicated by the Respondent, for the first time, on the day of trial (ROS14).

42 Given submissions made on this appeal, it is appropriate to set out a portion of the remarks on sentence containing findings with respect to the s.47 offence (ROS15-16):

“It is also submitted that, although the offence was a most unsavoury one, that fortunately the victim did not suffer severe injuries, or not substantial, in any event, physically, but it has been submitted on behalf of the offender that I would find that this offence fell towards the lower end of the range for offences such as this.

The Crown does not argue against that, and indeed, on my viewing of the evidence before me, I would agree that the offence does fall towards that end. The Crown has provided me with a number of authorities relating to offences of this type committed against persons, s 47 of the Crimes Act. However, those sentences imposed related to much more serious cases than the one before me, and although they are something of a guide, they really do not assist in deciding the appropriate sentence to impose.

The Crown has pointed to the serious nature of the offending, particularly in circumstances of aggravation, to which I have referred, and this also occurred, as it is referred to, in the presence of two children, one of whom was [XXX] and the other [XXX] . In particular, the Crown points to the offence being committed whilst he was subject to the s 12 bond, which in effect shows a contempt for the law.
Certainly to me, it was a stupid and totally irresponsible act on the part of the offender and, as I indicated to Mr Shaw, who appears on behalf of the offender, during the course of submissions, that it seems to me that it was committed out of a misplaced sense of loyalty and love for his mother. I might say that his mother does not come out of this looking very good either, because it was quite apparent that there was some attempt to separate the offender from the commission of the offence by the reporting of the motor vehicle being stolen. However, be that as it may, this man has committed the offence quite deliberately and he deserves to be punished for it.”

43 Her Honour found special circumstances by reference to the age of the Respondent and the fact that his problems appeared to be connected to drug addiction, so that an extended period of supervision ought be allowed to permit the Respondent to undergo extensive counselling (ROS16).

Offences Under s.47 Crimes Act 1900

44 Section 47 Crimes Act 1900 provides as follows:

“47 Using etc explosive substance or corrosive fluid etc

Whosoever:


causes any gunpowder or other explosive substance to explode, or

sends, or delivers to, or causes to be taken, or received by, any person, any explosive substance, or other dangerous or noxious thing, or

puts or lays at any place, or casts or throws at, or upon, or otherwise applies to, any person, any corrosive fluid or any destructive or explosive substance,

with intent in any such case to burn maim disfigure disable, or do grievous bodily harm to, any person, shall, whether bodily injury is effected or not, be liable to imprisonment for 25 years.”

45 Section 47 was contained in the Crimes Act 1900 (as enacted originally) and carried a maximum penalty of penal servitude for life until the enactment, in 1989, of the Crimes (Life Sentences) Amendment Act 1989. That Act made a series of amendments as part of the “truth in sentencing” statutory regime, whereby a maximum penalty of life imprisonment was replaced by a maximum penalty of imprisonment for 25 years for a range of offences. No standard non-parole period applies to a s.47 offence.

46 When an offence, such as that under s.47, is defined to include any of several categories of conduct, the seriousness of the conduct in a particular case depends not on the statute defining the offence, but on the facts of the case. In the case of a s.47 offence, a sentencing Judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of offence perpetrated by any act which constitutes a s.47 offence as defined: Ibbs v The Queen [1987] HCA 46; 163 CLR 447 at 452.

47 It is apparent from the terms of s.47 that a comparatively wide range of circumstances, some of them overlapping, are encompassed by the provision.

48 Confining attention to the third paragraph of offending conduct contained in s.47, relevant acts include throwing at or upon a person, or otherwise applying to a person, “any corrosive fluid” or “any destructive or explosive substance”.

49 A “corrosive” fluid is one “having the quality of corroding, eating away, or consuming” (Macquarie Dictionary, page 423). Acid is a common example of a corrosive fluid. An acid attack will ordinarily cause injury directly to the victim because of its corrosive nature. In an extreme case, the effects of an acid attack may be fatal: cf R v Tan [2007] NSWSC 684 at [16]-[20].

50 The throwing or application of “any destructive or explosive substance” may involve the throwing of a substance such as petrol or methylated spirits on a person. The application of petrol or methylated spirits to the surface of the skin will not necessarily cause injury. Of course, if the petrol or methylated spirits is ignited, injury will result, but that depends upon a further act by the assailant. Very serious offences extending beyond the scope of s.47 may result where petrol or methylated spirits is ignited on the victim: cf R v Difford [2001] QCA 359 (attempted murder); R v Williams [2002] QCA 142 (causing grievous bodily harm with intent to do so); R v Woodman [2009] QCA 197 (causing grievous bodily harm with intent to do so).

51 The relevant act must be accompanied by intent to “burn maim disfigure disable, or do grievous bodily harm”, whether bodily injury is effected or not.

52 In this case, the Respondent pleaded guilty to a charge of applying a corrosive fluid, namely acid, with intent to burn the victim. As s.47 makes clear, an offence is complete whether bodily injury is effected to the victim or not. In this case, bodily injury was effected to the victim, as a direct result of the application of the acid.

53 There are relatively few sentencing decisions in this State for s.47 offences. The attention of the sentencing Judge in this case was drawn to one decision of a two-judge bench of the Court of Criminal Appeal (R v SK and OZ [2001] NSWCCA 492) and three District Court decisions (R v Ohanian (Moore ADCJ, unreported, 16 December 2002); R v Hickey (Blanch CJ, unreported, 4 August 2006); R v Scamakas (Garling DCJ, unreported, 9 November 2006)). Submissions were made in the District Court by reference to these decisions, which have given rise to debate in this Court.

54 None of the New South Wales sentencing decisions involved application of a “corrosive substance”. Each case involved the throwing of a “destructive or explosive substance”. In each case, the offender had thrown or applied petrol to the victim, but was unsuccessful in attempts to set it alight.

55 R v SK and OZ involved juvenile offenders who ambushed their victim in a planned attack where he was struck on the head with a blunt weapon, stomped on by OZ when he fell to the ground, who then poured a substantial amount of petrol over him and then tried unsuccessfully several times to light it. Newman AJ (with whom Hidden J agreed) commented at [7] that “the facts particularly in relation to the charges laid under s47 (they also having been charged under s.33 Crimes Act 1900 with malicious wounding with intent to do grievous bodily harm) must come close to falling within the category of the worse [sic] type of case”. The offenders’ appeals against sentences of imprisonment for seven years with a non-parole period of three years and six months following trial were dismissed. It is apparent from the judgment that the fact that the offenders were juveniles at the time of offending had a substantial effect on the sentences they received.

56 In R v Ohanian, Moore ADCJ expressed the view that the offence of “throwing an explosive substance, namely petrol, with intent to burn” was completed at the point when the petrol was thrown with that intention. His Honour indicated that he did not find proved, as a matter of aggravation, “that when Ohanian was waving the burning object about he was then serious when he said that he was going to burn” the victims. It appeared that neither victim suffered any injuries from the petrol. In the context of an horrific and prolonged attack by an offender with an extensive criminal history, Ohanian was sentenced to a head sentence of nine years’ imprisonment.

57 In R v Skamacas, an offender with an extensive criminal history, threw petrol over five people (and tried unsuccessfully to light it) arising out of a domestic dispute. He was convicted at trial. Garling DCJ found that the offences fell “well above the middle of the range of seriousness of this type of offence”. The effective sentence for the offences was a non-parole period of seven years and six months and a total term of 10 years.

58 R v Hickey was a special hearing and involved facts quite different to the present case.

59 In my view, the provision of these decisions to the sentencing Judge in this case tended to distract, and not assist, her Honour in passing sentence upon the Respondent. As is obvious, the decisions did not involve sentencing of co-offenders of the Respondent. Further, the decisions did not demonstrate a range for the purpose of sentencing for s.47 offences. There was no statement of general sentencing principle in any decision. At best, the decisions constituted examples of sentencing outcomes which depended upon the particular circumstances of the offence and the offender in each case. None involved an acid attack. They were cases involving the throwing of petrol on persons, without the petrol being ignited. No person was burnt in the offences. Clearly, if the petrol had been ignited, grave consequences were likely. But that did not happen.

60 This Court has observed that where a sentencing Court is provided with a schedule of sentencing decisions, it is important that the purpose for which the information is provided be identified and kept in mind: Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53 at 78-79 [76]-[81]; R v Araya [2005] NSWCCA 283; 155 A Crim R 555 at 565-570 [63]-[88]; Han v R [2009] NSWCCA 300 at [34]. In this case, the decisions served no useful purpose and ought to have been placed to one side.

Determination of Crown Appeal

61 The central issue on this appeal is whether the sentencing Judge erred in characterising the s.47 offence as one that “fell towards the lower range for offences such as this”, thereby imposing a manifestly inadequate sentence.

62 In my view, the objective circumstances of this offence do not lend themselves to a finding that the offence fell towards the lower end of the range for offences under s.47. The Respondent’s plea of guilty admitted that he had applied acid to the victim with intent to burn her. The agreed facts revealed a significant measure of planning on the Respondent’s part whereby he and an unidentified co-offender acted in company, attending the location of a wedding at which the Respondent knew the victim was to be present. Measures were taken to guard against identification of the offenders who both wore balaclavas, and with the number plates on their vehicle being partially obscured with aluminium foil. The Respondent carried a knife which was brandished at the victim together with a spray container of acid. The victim was understandably terrified by masked men attacking her with a knife, and she attempted to escape. In her haste, she tripped and fell face down. The two men held her down and the Respondent deliberately sprayed acid on her. The victim felt immediate heat and pain to her back and right arm. Two children under the age of 18 years witnessed the incident. The victim suffered burns through her clothing to her right torso and arm, and it was necessary to subject her to a decontamination shower as part of the medical treatment provided to her.

63 The fact that this planned crime of violence was committed by the Respondent because of some feeling of loyalty to his mother provides no real assistance to him on sentence. The Respondent went to considerable lengths to terrify and injure this unfortunate victim in a planned acid attack undertaken in a public place. In my view, the sentencing Judge’s characterisation of the offence as “a stupid and totally irresponsible act” (see [42] above) downplayed significantly and erroneously the objective seriousness of the crime.

64 Section 47 does not require bodily injury to be effected as an element of the offence, but the victim did sustain bodily injury in this case. The fact that the bodily injury was not more grievous does not mitigate penalty. If grievous bodily harm had been inflicted upon the victim, a more serious charge may have resulted.

65 This was a well-planned attack with a clear intent to cause injury and terrify the victim. It was not a spontaneous or impromptu act. This was a serious example of an offence under s.47.

66 Added to this is the fact that this planned crime of violence was carried out by the Respondent who, less than two months before, had received the benefit of a suspended sentence of imprisonment subject to a good behaviour bond. The s.47 offence constituted a deliberate flouting of the criminal law in a most serious fashion by a person subject to conditional liberty. Such conduct ought be denounced by a sentencing Court.

67 Added to this were the Form 1 offences, which demonstrated a clear disregard by the Respondent for the conditions of the bond granted to him as part of the suspended sentence. It was necessary for the sentencing Judge to increase the penalty that would otherwise be appropriate for the s.47 offence, in accordance with the principles in Attorney General’s Application Under S.37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 at 159 [42].

68 The non-parole period ought represent the minimum term of imprisonment which should be served by an offender for the offence: Power v The Queen [1974] HCA 26; 131 CLR 623 at 628; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at 716-717 [55]-[58]. I am well satisfied that the non-parole period component of this sentence is manifestly inadequate by reference to this principle, having regard to the objective gravity of the crime for which sentence was to be passed.

69 In my view, a total term of imprisonment of four years and six months, including a non-parole period of two years and six months, was manifestly inadequate having regard to the objective seriousness of the offence. Error has been demonstrated by the Crown for the purpose of this s.5D appeal: R v JW at [63]. The sentence imposed in the District Court was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. The Crown has made good grounds of appeal 1, 3 and 4 (see [33] above).

70 Accordingly, I am satisfied that a foundation has been established for this Court to intervene and resentence the Respondent, subject to consideration of a further issue arising on the appeal. That issue is the relevance of the Crown’s approach to sentence in the District Court. The Court retains a discretion not to intervene in the case of a Crown appeal, notwithstanding the abolition by s.68A Crimes (Appeal and Review) Act 2001 of the double jeopardy principle: R v JW at [150]. If the Crown representative led the sentencing Judge into error or acquiesced in the sentence passed, this factor remains relevant to the exercise of the Court’s discretion under s.5D: R v JW at [92]-[93]. Section 68A operates to remove from consideration by this Court the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject: R v JW at [141].

Relevance of the Crown Approach in the District Court

71 Early in the sentencing hearing on 27 August 2009, the Crown Prosecutor handed to the sentencing Judge sentencing statistics, which were described by the Crown as offering little assistance to the sentencing Judge as only three cases were mentioned. In addition, the Crown Prosecutor handed to the sentencing Judge the four New South Wales authorities referred to at [53]-[58] above, which were also described by the Crown as being “not very much assistance to you” (T1.39, 27 August 2009). The Crown Prosecutor observed, by reference to the four sentencing decisions, that “these matters seem to be more serious than the one presently before your Honour. So it’s a matter for your Honour whether your Honour wishes to consider that” (T1.48, 27 August 2009).

72 I pause to observe that the Crown Prosecutor’s statement that the four authorities would not be of much assistance was correct, but that the additional observation involving a type of comparison between this case and the other cases, was inappropriate and erroneous for the reasons mentioned at [59]-[60] above. The Crown Prosecutor did not explain why it was said that the other cases seemed more serious than this case.

73 During the course of submissions in the District Court, counsel for the Respondent submitted that the s.47 offence lay “towards the lower spectrum” (T12.18). Discussion then followed between the sentencing Judge and defence counsel, with the Crown Prosecutor intervening at one point, with reference being made to the four NSW sentencing decisions (T12.32-51):

“HER HONOUR: Obviously I would say that - I think one of the judges said in one of those judgments that I've read, that there's no standard non-parole period. Probably that reflects the recognition that it can - such an offence can range over such a wide spectrum of criminality.

[Defence Counsel]: That's right. I mean the wide spectrum is indeed manifest by the nature of the cases my friend has tendered. The criminality in all of these matters in my submission was greater than the criminality in this matter.
HER HONOUR: Yes, I think so.
[Defence Counsel]: That's obviously especially the case in respect to the matter involving his Honour Judge Moore, the name of which escapes me at the moment.
[Crown Prosecutor]: I don’t submit otherwise, your Honour.
[Defence Counsel]: Okay, my friend is with me on that. There’s no need to go down the line.”

74 Soon after, counsel for the Respondent returned to the objective gravity of the offence (T13.27-45):

“[Defence Counsel]: Look, I'm not - the production of the arms, the issues of company, they're obviously aggravating matters. But my submission is directed to the offence in itself. I prefaced my submission by talking about the offence in itself. The offence per se is towards the bottom end of the scale. The production of the knife, the issue of company. The other 21A matter that my friends rely upon, the use of two of the people being 15 years are matters of some aggravation. But in the wash-up, in my respectful submission, bearing in mind the nature of the charge, the fact that the victim was in hospital for a number of hours, in my respectful submission has to be a matter of some weight to mitigate the objective seriousness of the offence, notwithstanding the surrounding 21A matters.
HER HONOUR: The Crown doesn’t disagree with you that it’s towards the lower end of the range for seriousness of the type of offence that it could be.

[Defence Counsel]: The plea of --

HER HONOUR: The Crown doesn’t disagree with that and I think that’s a fair comment quite frankly.”

75 It was a matter for the sentencing Judge to make an assessment of the objective seriousness of the offence for which sentence was to be passed. The Court was entitled to expect counsel for the Crown and the offender to provide assistance by way of submissions on relevant issues: Edwards v R [2009] NSWCCA 199 at [11]. Her Honour was not assisted by the Crown’s introduction of four sentencing decisions for s.47 offences which did not demonstrate a range of sentences for offences of this kind. As the Crown submitted initially to the sentencing Judge, the decisions were of little assistance, and demonstrated no more than the limited number of offences of this type which have come before the Courts. Regrettably, thereafter, the four decisions were used as a type of confused measuring stick to be considered for the purpose of determining the objective seriousness of the Respondent’s offence. This approach was impermissible and ought not to have occurred.

76 The Crown’s erroneous concession that this offence lay towards the lower end of the range of seriousness for this type of offence did not bind her Honour: GAS v The Queen [2004] HCA 22; 217 CLR 198 at 211 [30]-[31]; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 606. It was necessary for the sentencing Judge to form a view on this issue, irrespective of the submission of the Crown. In my view, both the conclusion of the sentencing Judge and the Crown submission were clearly wrong.

77 This is not a case where the Crown conceded in the District Court that a particular form of sentence was appropriate, but then comes to this Court on a Crown appeal seeking a different and substantially more severe form of sentence. Rather, what occurred in the District Court involved an erroneous Crown submission concerning the position of this offence upon a range of objective seriousness.

78 In my view, it can be demonstrated clearly that the finding of the sentencing Judge at first instance was wrong, by reference to the undisputed objective facts of the offence.

79 I have given consideration to the submission for the Respondent that the Crown submission at first instance ought be taken into account by this Court in the exercise of its discretion. Mr Shaw did not submit that the approach of the Crown in the District Court ought be decisive of the outcome of the appeal, but rather that it was a matter to be given particular weight by the Court (T13.31, 15 December 2009). I do not consider that this Court should decline to intervene upon this basis. The sentencing process at first instance was marked by clear error leading to the imposition of an unreasonable or plainly unjust sentence. The interests of justice require the imposition of an appropriate sentence for this serious offence.

80 I am well satisfied that this Court ought proceed to intervene and resentence the Respondent.

Breach of Suspended Sentence

81 As already mentioned, a sentence of imprisonment for 22 months was suspended, upon the Respondent entering into a good behaviour bond under s.12 Crimes (Sentencing Procedure) Act 1999 by order of the Parramatta District Court on 25 July 2008. Within two months, the Respondent had committed the serious offence under s.47, together with the other offences dealt with subsequently on the Form 1.

82 At the hearing of the Crown appeal on 15 December 2009, the Court expressed concern that the Respondent had not been called up for breach of the suspended sentence. The Crown was given an opportunity to explain what had occurred in this respect, and submissions and an affidavit were furnished to the Court for this purpose. It appears that the Probation and Parole Service took no action to bring the matter before the District Court.

83 In Director of Public Prosecutions (NSW) v Cooke [2007] NSWCA 2; 168 A Crim R 379, the Court of Appeal, Howie J (Sully and Price JJ agreeing) said at 386-387 [23]:

“There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.”

84 These sentiments were echoed by me (Allsop P and Kirby J agreeing) in Edwards v R at [15]-[17]:

“15 It has been observed, in another context, that there is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison: Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379 at 386-387 [23]. Although the Courts are conscious of the seriousness of a suspended sentence, it has been observed that the public, victims and even offenders may not view a suspended sentence as a true punishment: Dinsdale v The Queen [2000] 202 CLR 321 at 346-347 [80].

16 If this Court is required to resentence an offender in a case such as this where another sentence of imprisonment is being served, it would be necessary to consider issues of accumulation, concurrency and totality. In R v MAK (2006) 167 A Crim R 159 at 164-165 [18], this Court (Spigelman CJ, Whealy and Howie JJ) said:

‘A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences.’
17 Similar considerations arise in a case where an offender is to be resentenced by this Court for the original offence where sentence had been suspended, but this conditional liberty was breached by commission of further offences for which another sentence of imprisonment is being served. Public confidence in the administration of justice, including confidence in the use of suspended sentences, must be kept squarely in mind if that point is reached by this Court.”

85 What occurred in the present case in 2009 tended to bring the system of suspended sentences into disrepute in this State. In my view, following the Respondent’s plea of guilty to the s.47 offence on 16 June 2009, the Crown ought to have taken steps for the call-up for breach of the suspended sentence to be brought before the District Court, preferably before Morgan DCJ on 27 August 2009. It would then have been necessary for the sentencing Judge to deal with the call-up for breach of suspended sentence and the determination of sentence for the s.47 offence, having regard to issues of accumulation, concurrency and totality: Edwards v R at [16]. Instead, Morgan DCJ was informed on 27 August 2009 that the Respondent had not yet been called up for breach of the suspended sentence. Her Honour observed, in passing, during the course of sentencing submissions that she supposed that the breach of suspended sentence would go back before Ellis DCJ, who had imposed the suspended sentence (T11.7, 27 August 2009). That did not happen and had still not happened by the time the Crown appeal came on for hearing in this Court.

86 In written submissions filed 21 December 2009, the Crown submitted that the Court of Criminal Appeal could deal with the breach of suspended sentence, with the Respondent’s consent, under s.98(1)(c) Crimes (Sentencing Procedure) Act 1999. The Respondent did not give his consent to this course. In the alternative, the Crown submitted that the Court of Criminal Appeal could remit, under s.12(2) Criminal Appeal Act 1912, the breach of suspended sentence to be dealt with by the District Court. Given that the Court of Criminal Appeal did not have jurisdiction to deal with the Respondent (without his consent) for breach of the suspended sentence, it was not open to this Court to remit that issue under s.12(2). It was open to any Judge of the District Court to deal with the breach of suspended sentence without the consent of the Respondent: s.98(1)(b) Crimes (Sentencing Procedure) Act 1999.

87 In these circumstances, given that there would be some delay in this Court giving judgment on the Crown appeal because of the pending decision in R v JW, the Registrar of the Court of Criminal Appeal was asked by the Court to communicate with the parties, proposing that the breach of suspended sentence proceed in the District Court without delay and that this Court should be notified of the outcome. Thereafter, the Court was informed that the Respondent appeared before Ellis DCJ on 11 March 2010, on which occasion the bond was revoked and the Respondent was sentenced to a term of imprisonment for 22 months to commence on 14 September 2008 and expiring on 13 July 2010 with a non-parole period of 16 months and two weeks expiring on 28 January 2010. In fixing the non-parole period, Ellis DCJ applied the statutory ratio under s.44 Crimes (Sentencing Procedure) Act 1999. His Honour observed that the “question of cumulation, totality and special circumstances can be finalised in the Court of Criminal Appeal” (page 2, remarks on sentence, 11 March 2010).

88 Having been informed of the sentence passed in the District Court on 11 March 2010, the Court sought further submissions from the parties on the Crown appeal concerning the impact of that sentence of imprisonment upon the determination of the Crown appeal, including issues of accumulation, concurrency and totality. Further written submissions were furnished by the Crown on 15 April 2010. The Crown submitted that the sentence for the s.47 offence ought be either wholly or substantially cumulative upon the sentence passed by Ellis DCJ on 11 March 2010. The Respondent’s solicitors indicated on 20 April 2010 that no further written submissions were to be made on his behalf.

Resentencing the Respondent

89 It is necessary to determine the appropriate sentence to be passed for the s.47 offence, taking into account the matters on the Form 1.

90 Having regard to the objective gravity of the s.47 offence and the subjective circumstances of the Respondent, I am satisfied that a non-parole period of four years is required as the minimum period of actual imprisonment which the Respondent should undergo for the s.47 offence, taking into account the Form 1 offences, with a balance of term of two years’ imprisonment. The sentencing Judge made a finding of special circumstances and this finding was not challenged by the Crown on appeal. I accept that a similar finding ought be made in this Court, although the non-parole period for the s.47 offence should be no less than two-thirds of the head sentence for this offence.

91 It is necessary for this Court to have regard to issues of accumulation, concurrency and totality in resentencing the Respondent for the s.47 offence. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offences: see R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164-165 [18]; Edwards v R at [16]-[17] referred to at [84] above. It is necessary for the Court to ensure that aggregation of all of the sentences is a just and appropriate measure of the total criminality involved: R v MAK at 164 [15].

92 The offence which attracted the suspended sentence was of an entirely different type to the s.47 offence. The s.47 offence was committed whilst the Respondent was subject to conditional liberty for the offence of supply prohibited drug. In these circumstances, a very substantial measure of accumulation is required.

93 The Court should consider the relationship between the period to be served before parole eligibility arising from the accumulation of the two sentences and the balance of the term of the sentence for the s.47 offence in order to ensure a sufficient period of parole supervision: Hejazi v R [2009] NSWCCA 282 at [35]. The ultimate question is what is the least period which the Respondent should be required to serve (for all offences) before being eligible for parole: Hejazi v R at [36].

94 In my view, the sentence of imprisonment for the present offence should commence on 14 January 2010. The total effective non-parole period will constitute 73% of the total effective head sentence for all offences. In my view, a just and appropriate measure of the total criminality involved requires that the Respondent should not be eligible for parole before 13 January 2014. A sufficient period of parole supervision will result from such an order.

95 I propose the following orders:

(a) leave granted to amend the notice of appeal by adding the grounds set out at [33] hereof;

(b) the Crown appeal is allowed;

(c) the sentence imposed in the Sydney District Court on 27 August 2009 is quashed;

(d) in its place, and taking into account the offences on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of four years to date from 14 January 2010 and to expire on 13 January 2014 with a balance of term of two years commencing on 14 January 2014 and expiring on 13 January 2016.

96 The earliest date upon which the Respondent will be eligible for release on parole is 13 January 2014.

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