R v Dudko

[2000] NSWCCA 336

CITATION:	Regina v Lockyer [2000] NSWCCA 336
FILE NUMBER(S):	CCA 060455/99
HEARING DATE(S):	14/07/2000
JUDGMENT DATE:	14 July 2000
PARTIES :	Regina Warren Lockyer
JUDGMENT OF:	Adams J at 1; Bell J at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	981/0295
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

COUNSEL :	WG Dawe QC - Crown PM Winch - Applicant
SOLICITORS:	SE O'Connor TA Murphy - Applicant
LEGISLATION CITED:	Crimes Act, 1900 Criminal Procedure Act, 1986
CASES CITED:	Lowe v The Queen (1984) 154 CLR 606; Regina v Hodges (unreported) NSWCCA 20 August, 1997 Steele (unreported) NSWCCA) 17 April, 1997 Diamond (unreported) NSWCCA 18 February, 1993
DECISION:	Application for leave to appeal granted; appeal allowed.

IN THE COURT OF
CRIMINAL APPEAL

60455/99

ADAMS J
BELL J

Friday, 14 July, 2000

REGINA v Warren LOCKYER

JUDGMENT

1    ADAMS J: I will ask Justice Bell to give the first judgment of the Court.
2 BELL J: The applicant, Warren Anthony Lockyer, seeks leave to appeal against the severity of a sentence imposed on him following his plea of guilty to a charge of assault occasioning actual bodily harm. This is an offence provided for in s 59 of the Crimes Act, 1900 (“the Act”) and carries a potential maximum of five years imprisonment. At the date upon which he appeared for sentence, this was a Table 2 offence for the purposes of s 33C(2) of the Criminal Procedure Act, 1986 and as such was an offence to be dealt with summarily unless an election was made by the prosecuting authority to proceed upon indictment.
3 The applicant was sentenced before the District Court in Wollongong to a term of two years imprisonment, to date from 17 April 1999 and to expire upon 16 April 2001. An additional term of eight months was specified. It is to be noted that the applicant invited the sentencing judge to take into account three matters on a Form 1 pursuant to s 21 of the Criminal Procedure Act (as it then stood). These were a charge involving the possession of a small quantity of cannabis, the possession of a small quantity of heroin and goods in custody, being a sum of cash.
4    The facts were as outlined by the sentencing judge in the course of his reasons, given on 23 July 1999. The circumstances of the assault on the victim, Christopher Murray, were that the applicant, together with a co-accused, Daniel Lowe, went to Mr Murray's residence and there engaged in what his Honour described as a very unprovoked and particularly vicious attack on Mr Murray, in which both of the offenders used weapons. In the case of the applicant, a piece of wood was used. He struck the victim about the left side of the head in the region of the temple with it. The victim was assaulted both inside his dwelling house and subsequently in the backyard of his premises.
5    The offence occurred on 24 September 1998. The applicant was arrested in October of that year. His co-accused, Daniel Lowe, was also arrested. It appears that both men were charged with the more serious offence of maliciously inflicting grievous bodily harm upon Mr Murray. In both cases the matters were listed for trial before the Wollongong District Court on 31 May 1999.
6    On that occasion when the matter was called on for trial there was no appearance by the applicant. The proceedings in relation to the co-accused, Mr Lowe, reveal that on that day the Director of Public Prosecutions presented an indictment against Mr Lowe in different terms to that which had been earlier proposed. Mr Lowe entered a plea of guilty to the second count in that indictment, being a count of assault occasioning actual bodily harm, and his plea was accepted in full discharge of the indictment.
7    Mr Lowe had been in custody since his arrest on 21 November 1998. By contrast, the applicant had been granted bail in this Court on 23 February 1999.
8    Following his plea of guilty, the co-accused was on that day sentenced by the learned sentencing judge to a fixed term of imprisonment of six months, to date from 21 November 1998 and to expire upon 21 May 1999.
9    On 2 June 1999 the accused appeared before the same judge and entered a plea of guilty to the second count in the indictment, namely the count alleging assault occasioning actual bodily harm. The Crown accepted that plea in full discharge of the indictment.
10    On behalf of the applicant an adjournment was sought in order to obtain a pre-sentence report. He was remanded in custody until 23 July when his Honour imposed the sentence to which I have already referred.
11    The assault was a particularly serious instance of an assault occasioning actual bodily harm. The applicant was at the date of the commission of the offence aged twenty eight years. He had a lengthy criminal record, including a number of entries for offences of violence. Mr Winch, who appears on the applicant's behalf, has not sought to contend, having regard to the objective seriousness of the offence, together with the applicant's background which deprived him of any claim for leniency upon the Court, that the sentence might be challenged as excessive, save for one matter. A challenge is advanced upon the basis that his Honour failed to have regard to the principles of parity in sentencing in the light of the disposition of the proceedings involving the co-accused Lowe.
12    It is appropriate to record something of the background relating to Mr Lowe in order to assess this challenge.
13    At the time of the commission of the offence, Mr Lowe was aged twenty nine years. He had a criminal record dating back to the age of seventeen when he had appeared before the Wollongong Children's Court charged with an offence of malicious injury, in respect of which he had been placed upon a recognisance. From that time on, he had persistently appeared before criminal courts where he had been convicted of a range of offences, including larceny, break, enter, steal, resist arrest and assaulting police. His first term of imprisonment was imposed in June 1990 following his conviction for an offence of breaking, entering and stealing. In July 1990 he was sentenced to a fixed term of imprisonment of nine months following his conviction for assaulting police. In August 1991 the Newcastle District Court imposed a fixed term of twelve months imprisonment upon him in relation to the breach of a recognisance. In March 1994 he was sentenced to a term of periodic detention by the Wollongong Local Court following a conviction for taking a conveyance without consent. In December 1994 he was sentenced to a minimum term of imprisonment of fifteen months with an additional term of five months in relation to a conviction for assault police. On 19 November 1996 he was sentenced by the Wollongong Local Court in relation to two counts of malicious wounding. In respect of these matters he was in each case sentenced to a minimum term of eighteen months imprisonment with an additional term of six months. He appealed against the severity of those sentences. In February 1997 the Wollongong District Court confirmed the convictions and substituted sentences in each case of twelve months minimum term, together with an additional term of twelve months.
14    It is to be noted that the minimum term in each case was expressed to expire on 12 February 1998. The additional term commenced on 13 February 1998 and was to expire on 12 February 1999. Mr Lowe was at liberty on parole in relation to two convictions for malicious wounding at the time of the commission of the subject offence.
15    I turn now to a consideration of the applicant's criminal record.
16    Like his co-offender, his criminal offending began when he was aged seventeen, when he appeared before the Wollongong Children's Court. On that occasion he was convicted of an offence of assault occasioning actual bodily harm and placed on a recognisance. Thereafter like his co-offender he committed further offences over the years, so that by the time he came to be sentenced in relation to the subject offence he had a lengthy and unenviable criminal record. It included offences of break, enter and steal, assaulting police, resisting arrest and hindering police. In particular I note that in September 1990 he was convicted of two counts of assault. In relation to those matters, he was in each instance sentenced to fifty hours of community service. In September 1990 he was before the Local Court again charged with a break, enter and steal. On this occasion two hundred hours of community service was imposed on him. In May 1991 he was again convicted of the offence of assaulting police. On this occasion he was placed on a recognisance to be of good behaviour for a period of two years. There followed further offences which I will not detail but I take up the record again in March 1995, when he appeared before the Wollongong Local Court charged with assault occasioning actual bodily harm. On this occasion he was sentenced to one hundred hours of community service.
17    In April 1996 he appeared before the Wollongong Local Court charged with malicious damage, assault occasioning actual bodily harm, some driving offences and a further count of assault. In relation to the assault occasioning actual bodily harm, the Court imposed a sentence comprising a minimum term of fifteen months and an additional term of five months. In May 1996 he was before the Newcastle Local Court, where he was convicted of assault and sentenced to a fixed term of one month.
18    In December 1997 he was charged with assault occasioning actual bodily harm. It appears he was granted bail in relation to that matter. He was on bail in respect of that charge at the date of the commission of the subject offence. Subsequently, on 12 November 1998, a fixed term of three months was imposed in relation to that matter.
19    I note that at his sentence hearing the applicant gave evidence. In general terms, he acknowledged that he had in the past committed a number of offences of violence and he gave an account that alcohol had been associated with his violent behaviour. He said that he had not consumed alcohol since Boxing Day of 1997.
20    In sentencing the co-accused, Daniel Lowe, the sentencing judge observed in the course of his short reasons for sentence "it is clear that Mr Lockyer was the person primarily responsible for the assault". When his Honour came to deal some two months later with the applicant, he did not in terms make a finding in relation to the relative culpability of the two men. Having regard to the widely differing sentences imposed, it must be taken that his Honour sentenced the applicant upon the view that he had expressed in the earlier proceedings namely that the applicant was the person primarily responsible for the assault.
21    Mr Winch submits that an examination of the police facts tendered at each sentence hearing and the statements of the victim and witnesses does not paint the applicant in a significantly more culpable light than his co-offender. Mr Winch acknowledges that the evidence is capable of suggesting a view that the applicant was the instigator of the assault. Mr Winch also concedes that it may be that the blow struck by the applicant with the piece of wood caused more damage than blows inflicted by the co-accused Lowe (who on the evidence appears to have been wielding a chain) although, as Mr Winch observes, the evidence as to that last matter is somewhat unclear.
22    The victim gave an account that the accused had arrived at his home, saying that he wished to collect a sum of money owed to him by Katrina Evans. Ms Evans was the victim’s girlfriend. Mr Murray told police that he said to the applicant "no worries, I'll go and get her". He went to get Ms Evans, the two of them walked back into the loungeroom when Mr Murray says he was struck to the left side of his face by the accused, wielding a piece of timber. He dropped to the floor. He felt a number of kicks while on the floor and he remembered crawling on his hands and knees through to the kitchen, when he was kicked again. He also felt a blow to the back of his head which he thought may have come from a chain. He crawled to the back lawn and tried to get over the fence. He was dragged back and kicked to the head and body. He again tried to get over the fence but was kicked and punched. On the third occasion he succeeded in making good his escape.
23    Katrina Evans told police that she had observed the accused and Lowe coming from behind the door of the spare room. She saw that the accused had a piece of wood and that Lowe had a chain. She saw the accused hit Christopher Murray to the side of the head and she saw Lowe striking him with the chain. Both men followed the victim to the backyard and both were kicking and punching him while he was on the ground. The piece of wood held by the applicant was sixty centimetres long and two inches wide. Ms Evans told police "I heard the crack when he hit Chris in the head. I only saw Waz hit Chris once inside with the piece of wood".
24    Alex Kiayias was present at the victim's home at the time of the assault. He answered the front door. The accused entered. Not long after that, there was another bang at the door and the accused answered it on this occasion. Mr Kiayias saw a second man enter. That second man was wearing surgical gloves. The applicant said to Mr Kiayias "I was not here you did not see me or my friend". He pointed to the door and said "see that door, use it, see ya later, don't come back and don't say nothin". Mr Kiayias did not see weapons in the hand of either man. He walked out the door and heard a loud bang and a yell.
25    Shane McEvoy was present at the victim's home in the yard at the time of the assault. He heard the applicant saying "that's it, you're finished". Mr McEvoy remained outside but he walked to near the back door where he saw the victim standing near the kitchen doorway. He saw the applicant swing a piece of wood, which looked to him like a table leg, and hit the victim on the left side of the face near the temple. He saw the victim fall and he observed another man in the hallway holding an object. It looked to him like scissors or a knife. He saw what seemed to be a shiny blade about ten centimetres long.
26    Having regard to the accounts of the various witnesses to this incident, Mr Winch's concession that it was open to the sentencing judge to approach the matter upon the basis that the applicant was the instigator of the assault, seems to me well made. However, I consider there is substance to the contention that it was not open to make the finding that it was clear that Mr Lockyer was the person primarily responsible for the assault if such a finding meant anything more than that he was the instigator in the sense of the person who struck the first blow.
27    Neither man it appears offered any account as to the circumstances leading up to this ugly offence. The motive for the assault remains unexplained. What can be inferred is that the two men were engaged upon a common purpose and that both of them utilised weapons in carrying out the assault. The assault was a sustained one, both men participated in it over a period of time. The circumstance that the co-offender Lowe armed himself with a chain or some type of weapon and the detail that he wore surgical gloves does not seem to me consistent with a view that his role in the offence was in any way significantly less than that of the applicant. Both men had lengthy criminal records disclosing offences of violence which did not entitle either of them to leniency. Both were in their late twenties and the attack was for an assault occasioning actual bodily harm offence, a serious one.
28    I now turn to the principles concerning parity of sentencing. They are as explained in Lowe v The Queen (1984) 154 CLR 606. In that case Mason J (as he then was) observed at page 610:

"Just as consistency in punishment, a reflection of the notion of equal justice is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment because it is regarded as a badge of unfairness and unequal treatment under the law is calculated to lead to an erosion of public confidence in the integrity of the administration of justice."

29    The principles are well established. Where co-offenders receive inconsistent sentences, the law allows that the more severe sentence should be reduced so as to be consistent with the lesser sentence imposed on the co-accused. This extends to the imposition of unwarranted leniency in order to avoid a justifiable sense of grievance on the part of the offender who received the harsher penalty and avoids the community perception of unfairness; Lowe; and Regina v Hodges (unreported) NSWCCA, 20 August 1997.
30    The principles are well established. It is to be noted that in cases where a co-offender receives a sentence which is manifestly inadequate, the reduction of an applicant's sentence might not be justified for the reason that to do so would itself be an affront to the proper administration of justice. This was recognised by the decision of this Court in Diamond (unreported) NSWCCA, 18 February 1993 and subsequently in Steele (unreported) NSWCCA, 17 April 1997. This latter consideration has been very much to the fore in the present application.
31    The Crown contends, having regard to the objective seriousness of the offence and in the light of the man Lowe's criminal record, the sentence imposed upon him was manifestly inadequate and that this Court ought not to intervene in order to address the disparity in sentences, because to do so would be to lead to the imposition of a sentence upon the applicant which was itself manifestly inadequate.
32    It is to be noted that the Crown has not appealed against the sentence imposed upon Daniel Lowe, although I do not consider that matter is determinative of this issue.
33    Mr Winch submits that a sentence of six months imprisonment in respect of the offence of assault occasioning actual bodily harm cannot, when regard is had to the overall pattern of sentencing for that offence, be characterised as manifestly inadequate. He concedes, as with respect inevitably he must, that it was an exceedingly lenient sentence.
34 It seems to me that it is difficult to say of the six month sentence that it was so inadequate as to fall outside the permissible range of the exercise of discretion. The Crown accepted in full discharge of the indictment a plea to an offence contrary to s 59 of the Act. As I have noted, this was a Table 2 offence at the relevant time. The great majority of such offences proceed before the Local Court, where the maximum sentence available is one of two years imprisonment.
35 The statistical material furnished by the Judicial Commission of New South Wales in relation to the disposition of offences under s 59 by higher courts confirms a view that a fixed term sentence of six months is a lenient one but does not in my view support a contention that it was manifestly inadequate.
36    The subjective cases advanced by both men were broadly similar when consideration is had to their age and criminal record. It is to be noted, as I have observed, that the applicant gave evidence before the sentencing judge and did mount a positive case in mitigation of his sentence in contrast to that of the man Lowe.
37    His Honour did not advert to considerations of parity in sentencing in the course of his brief reasons for sentence in dealing with the applicant. The disparity is so great (notwithstanding my view that it was open to his Honour to see the applicant as the instigator of the assault) that I consider that error has been demonstrated.
38    For these reasons I consider it is appropriate for the Court to embark on the exercise of resentencing the applicant. In that regard, I note that an affidavit is before us from Catherine Alice Ridge, sworn on 13 July 2000 and to that is annexed a certificate from the Kairos Prison Ministry, setting out the applicant's participation with that group. It reflects creditably on him.
39    I consider that it is appropriate to distinguish as between this applicant and his co-offender upon the basis that the applicant's culpability is greater than that of the co-offender, for the reason both that he struck the first blow and because of the circumstance that he wielded a block of wood resembling a table leg, striking the victim on his temple.
40 I have had regard to the subjective material that was before his Honour, together with the more recent material annexed to Ms Ridge's affidavit. I have given consideration to the question of special circumstances for the purposes of s 44(2) of the Crimes Sentencing Procedure Act 1999. I am not of the view that special circumstances have been identified in this case.
41 I would propose, in the light of these reasons, that the application for leave to appeal be granted, that the appeal be allowed and that the sentence imposed in the District Court be quashed. In lieu thereof I would propose a sentence of one year and eight months, to date from 17 April 1999. I would specify a non-parole period of fifteen months. The earliest date on which the offender might be released pursuant to that sentence would be 16 July 2000. Pursuant to s 50 of the Crimes Sentencing Procedure Act 1999, I would propose an order directing the release of the offender on parole at the expiration of the non-parole period.
42    ADAMS J: I agree with the judgment of her Honour Justice Bell and with the orders she proposes. The orders will therefore be as proposed by Justice Bell.

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