R v FD & JD - [2006] NSWCCA 31

No judgment structure available for this case.

Reported Decision:
160 A Crim R 392

New South Wales

Court of Criminal Appeal

CITATION: Regina v F.D; Regina v F.D; Regina v J.D [2006] NSWCCA 31

HEARING DATE(S): 17 August 200

JUDGMENT DATE:
21 February 2006

JUDGMENT OF: Sully J at 1; Hulme J at 147; Hall J at 209

DECISION: In the case of F.D: appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed; In the cases of the Crown appeals against sentence, each such Crown appeal dismissed.

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)

CASES CITED: M v The Queen (1984) 181 CLR 487
Reg v Simpson (2001) 53 NSWLR 704
Reg v Allpass (1993) 72 A Crim R 561
Reg v Bermingham (No. 2) (1997) 96 A Crim R 545
The Queen v Glennon (1992) 173 CLR 592
Reg v Previtera (1997) 94 A Crim R 76
Reg v Tzanis [2005] NSWCCA 274
Reg v Reid [2005] NSWCCA 309
Veen v The Queen (No. 2) (1988) 164 CLR 465
Pearce v The Queen (1998) 194 CLR 610
R v Richards [1981] 2 NSWLR 464
R v Readman (1990) 47 A Crim R 181
R v Way (2004) 60 NSWLR 168
R v Previtera (1977) 92 A Crim R 76
Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (2002) 137 A Crim R 196 at [57]
R v Berg [2004] NSWCCA 300
R v Tzanis [2005] NSWCCA 274
R v Wilson [2005] NSWCCA 219
R v Thomson and Houlton (2000) 49 NSWLR 383

PARTIES: Regina
F.D
J.D

FILE NUMBER(S): CCA 2005/1439; 2005/510; 2005/509

COUNSEL: G.E. Smith SC/M.L. Woodburne - Crown
C. Craigie SC - J.D
R. Bonnici - F.D

SOLICITORS: S. Kavanagh - Crown
Murphy's Lawyers - J.D
S. O'Connor - F.D

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2004/45
2004/11

LOWER COURT JUDICIAL OFFICER: Levine J

2005/1439
2005/510
2005/509

SULLY J
HULME J
HALL J
21 February 2006

REGINA v F.D.

REGINA v J.D.

Judgment

Non publication order: The Court orders that in any report of this judgment or of the proceedings with which the judgment deals the offenders are to be referred to only as, respectively, FD and JD.

There is to be no publication of any material the effect of which would be to disclose the identity of either offender.

There is to be, in particular, no reporting of the relationship existing between the two offenders.

SULLY J:

Introduction

1 There are before the Court three appeals and an application for leave to appeal. They comprise: first, an appeal by F.D. against his conviction for murder; secondly, an application by F.D. to appeal against sentence; thirdly, a Crown appeal against sentence, the respondent being F.D.; and fourthly, a Crown appeal against sentence, the respondent being J.D.

2 In November and December 2004 F.D. and J.D. stood trial jointly before Levine J and a jury.

3 F.D. was indicted upon three counts charging respectively: first, that on 21 March 2003 at Glebe, being armed with an offensive weapon, namely a knife, he had robbed one Rosalie Taylor of a hand-bag, being her property, and of a diamond ring, being the property of her son, Simon Taylor; secondly, that at the same time and place he had maliciously wounded one Robert Taylor (who was the husband of Rosalie Taylor and the father of Simon Taylor), with intent to do grievous bodily harm; and thirdly, that at the same time and place he had murdered Simon Taylor.

4 F.D. pleaded not guilty to each such charge. In the case of each charge, the jury found him guilty.

5 J.D. was indicted upon two counts charging respectively: first, that on 21 March 2003 at Glebe, being armed with a dangerous weapon, namely a replica pistol, he had robbed Rosalie Taylor of a hand-bag, being her property, and of a diamond ring, being the property of Simon Taylor; and secondly, that at the same time and place he had murdered Simon Taylor.

6 J.D. pleaded not guilty to each charge. The jury found him not guilty of robbery while armed with a dangerous weapon, but guilty of robbery while armed with an offensive weapon. The jury found him not guilty of murder, but guilty of manslaughter.

7 The charge of murder which was preferred against both F.D. and J.D. alleged a contravention of section 19A of the Crimes Act 1900 (NSW); and attracted upon conviction a statutory maximum penalty of imprisonment for the offender’s natural life. A standard non-parole period of 20 years is provided by Part 4 Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The charge of manslaughter of which the jury found J.D. guilty alleged a contravention of section 24 of the Crimes Act and attracted upon conviction a statutory maximum penalty of imprisonment for the term of 25 years.

8 The charge preferred against F.D. of robbery while armed with an offensive weapon alleged a contravention of section 97(1) of the Crimes Act; and attracted upon conviction a statutory maximum penalty of imprisonment for 20 years. This was, also, the offence of which J.D. was found guilty by the jury.

9 The charge preferred against F.D. of malicious wounding with intent to do grievous bodily harm alleged a contravention of section 33 of the Crimes Act; and attracted upon conviction a statutory maximum penalty of imprisonment for 25 years. A standard non-parole period of 7 years is provided by Part 4 Division 1A of the Crimes (Sentencing Procedure) Act l999 (NSW).

10 The sentences passed upon F.D. were:

· For the offence of robbery whilst armed with an offensive weapon; imprisonment for a fixed term of 6 years to commence on 23 March 2003 and to expire on 22 March 2009.

· For the offence of malicious wounding with intent to do grievous bodily harm: to imprisonment for 12 years to commence on 23 March 2003 and to expire on 22 March 2015. A non-parole period of 9 years was set, to commence on 23 March 2003 and to expire on 22 March 2012.

· For the offence of murder: to imprisonment for 24 years to commence on 23 March 2005 and to expire on 22 March 2029. A non-parole period of 18 years was set to commence on 23 March 2005 and to expire on 22 March 2023.

11 The effective overall sentence for F.D. was, therefore, a head sentence of 26 years to commence on 23 March 2003 and to expire on 22 March 2029; and a non-parole period of 20 years to commence on 23 March 2003 and to expire on 22 March 2023.

12 The sentences passed upon J.D. were:

· For the offence of robbery while armed with an offensive weapon to imprisonment for a non-parole period of 3 years to commence on 25 March 2003 and to expire on 24 March 2006, with a balance of term of 1 year and 1 month to commence 25 March 2006 and to expire on 24 April 2007.

· For the offence of manslaughter: to imprisonment for a non-parole period of 3 years to commence on 25 March 2003 and to expire on 24 March 2006, with a balance of term of 2 years and 3 months to commence on 25 March 2006 and to expire on 24 June 2008.

13 The effective overall sentence for J.D. was, therefore, one of a head sentence of 5 years and 3 months to commence on 25 March 2003 and to expire on 24 June 2008; and a non-parole period of 3 years to commence on 25 March 2003 and to expire on 24 March 2006.

14 Levine J directed that the non-parole period be served in a juvenile detention centre and recommended Cobham. His Honour directed that it be a condition of J.D.’s release on parole that he be supervised as to his health, psychological treatment and continuing further education.

The Conviction Appeal of F.D.

15 F.D. appeals against his conviction for murder. The notified grounds of appeal are:

“1. The verdict of guilty is unsafe and unsatisfactory in that it is unreasonable on the state of the evidence and the correct verdict ought to have been one of manslaughter.

2. The evidence in relation to the issue of self defence especially in defence of another was such that it was and is unreasonable for the jury to have rejected it on the basis that the Crown could not disprove self-defence beyond reasonable doubt, as distinct from the aspect of whether excessive force was used.

3. His Honour the trial Judge erred in not putting the following specific directions as requested by the Defence counsel, to emphasize the subjective test in relation to self-defence: “The Crown must eliminate any reasonable possibility that the accused was acting in self defence”; and thereafter explaining the application of it subjectively on evidence adduced.

4. His Honour erred in not making a clear and proper distinction between the following three (3) possible areas of self-defence and directing the jury accordingly:

i. Was the accused acting in his own defence?

ii. Was the accused acting in the defence of his brother?

iii. Was it a combination of the two, namely firstly in defence of his brother and then secondly himself, particularly in the context of the case?

5. His Honour erred in not correctly explaining to the jury the term “citizen’s arrest”.

6. His Honour erred in his directions to the jury as to the meaning and use of the word “immediately” in the context of the situation.

7. His Honour erred in allowing the Crown to put speculative inferences on the motive of why the Appellant went to the aid of his brother, as if it was a mutually exclusive aspect thereby subjectively denying self-defence to the Appellant at all.

8. His Honour failed to properly exercise his discretion pursuant to Section 53 of the Evidence Act in allowing the Crown Prosecutor to conduct a so-called “demonstration” between himself and the Appellant, on the most critical, contentious and controversial issue in the trial, thereby causing irreparable prejudice to the Defence Case and the trial to miscarry.

9. That the confused state of the evidence as to what happened in the laneway, the uncertainty of the issues in relation to self-defence and elimination of same by the Crown, compounded by a juror having to be dismissed after a couple of days after closing addresses and in a murder trial of this nature, plus the remainder of the jury deliberating its verdicts from 10th to 17th December 2004, all taken in combination, all point to an unsafe and unsatisfactory verdict and/or a miscarriage of justice to the Appellant.”

The Application by F.D. for Leave to Appeal against Sentence

16 The notified grounds of this application are:

1. His Honour erred in the accumulation of the sentences for offences arising from one overall event of criminality.

2. His Honour failed to give full and proper consideration to the aspect of Special Circumstances for this Appellant.

3. That there is a “parity” issue in his Honour finding Special Circumstances for the Appellant’s brother and thus reducing the term of his non parole period, yet not applying the same criteria in this regard to this Appellant.

4. The sentence is manifestly excessive in all the circumstances.”

The Crown Appeal against Sentence: F.D.

The Crown Appeal against Sentence: J.D.

17 In each case the only ground notified is that each sentence passed, respectively, upon the particular respondent to the Crown appeal is manifestly inadequate.

The Material Facts

18 These are summarised conveniently and as follows in the remarks on sentence:

“Mrs. Rosalie Taylor put an advertisement in the Trading Post to sell a diamond engagement ring for $15,000. The ring had been given to her by her son to look after upon the break-up of his engagement.

At about 11 o’clock on Friday, 21 March 2003, she received a call on her mobile from a man named “John”, who was F, who gave her his mobile phone number. Arrangements were ultimately made for her to go to Glebe between 7.30 pm and 8.00 pm at the address of 1D Wigram Road. The last telephone call she had with the offender F was whilst her husband and son were driving across the Harbour Bridge at about 7.25 pm.

The Taylors arrived shortly thereafter at Wigram Road. Mrs. Taylor had the ring inside her bag and also available to her some documents in an envelope relating to valuation. FD was standing outside 1D Wigram Road. They introduced themselves. Mrs. Taylor walked back to the car and obtained the valuation papers.

Outside 1D Wigram Road, F feigned a telephone conversation with his girlfriend and explained that her being away required them to get access to the house via the backyard and that is where F led the party of the three Taylors.

Once in the backyard, there was a very brief exchange of conversation, which I am satisfied beyond reasonable doubt did not amount to an argument and did not amount to shouting or screaming. This is with respect to the intrusion into the events of J. In any event, J burst into the backyard carrying a replica pistol. Thereupon, not surprisingly, there are confused accounts.

After what must have been a very short time, the bag had been snatched from Mrs. Taylor and there was a pursuit down the lane. J was tackled by Simon Taylor and whilst he had J down, Simon was stabbed four times by F, two of the wounds being fatal. Prior to that, Mr. Robert Taylor had been stabbed in the chest. That F was the stabber has been established beyond reasonable doubt.

After the stabbing of Simon Taylor, F and J ran away. F put the bag under a car and threw the knife in a park where it was found by the police. The bag was also located.

The jury was satisfied beyond a reasonable doubt that each of the elements of each of the offences had been made out, and brought in their verdicts accordingly. The issue left to the jury in relation to F was self defence and defence of another and that failed.

I would add that during the course of the chase, Robert Taylor became weak and lent against a car and ultimately collapsed. Both Robert and Simon Taylor were taken to Royal Prince Alfred Hospital. Robert Taylor suffered a stab wound which punctured his lung. Simon Taylor suffered stab wounds to the left anterior and lateral thorax, a stab wound to his thigh and to his nose. He did not survive surgery.”

The Conviction Appeal of FD

19 Of the nine grounds originally notified, ground 4 was not pressed at the hearing. Grounds 3, 8, 5, 6 and 7 were argued in that order; and grounds 1, 2 and 9 were argued together. It is convenient to deal now with the grounds of appeal in that stated order.

Ground 3

20 The ground is:

“His Honour the trial Judge erred in not putting the following specific directions as requested by the Defence counsel, to emphasize to subjective test in relation to self-defence: “The Crown must eliminate any reasonable possibility that the accused was acting in self defence”; and thereafter explaining the application of it subjectively on evidence adduced.”

21 The full direction initially given by Levine J on the issue of self-defence in the case of F.D. was:

“As you might expect members of the jury the law recognizes the right of a person to act in self-defence and the defence of another from an attack or threatened attack even to the point of killing the other person with the intention of killing or inflicting grievous bodily harm on what I will call the attacker. The law also is this, and this is of fundamental importance, an accused does not have to prove that he acted in self-defence and defence of another. The Crown has to satisfy you beyond a reasonable doubt that he did not. The right to which I have referred, and I want you to take it that it is the right to act in defence of oneself and another which is the situation here as raised by F and which has to be eliminated by the Crown, arises where the accused believes that his acts were necessary to defend himself and to what the accused did was a reasonable response in the circumstances as he perceived them.

The Crown can eliminate self-defence in the context of the charge of murder by doing this: by satisfying you beyond a reasonable doubt – beyond a reasonable doubt – that the accused did not believe at the time he was involved in the stabbing, that it was necessary to do what he did in order to defend himself and J. And I interpose here that that is the principal ground upon which the Crown argues you will have found no self-defence. What the Crown says is F didn’t believe it was necessary to do what he did in order to defend himself and J. He was preoccupied with getting out of that alley.

If you are satisfied beyond reasonable doubt that F did not believe at the time that it was necessary to do what he did in order to defend himself that eliminates self-defence on the charge of murder. And if you are otherwise satisfied as to the other ingredients having been established beyond a reasonable doubt the verdict would be guilty.

Let us say, however, that the Crown has not persuaded you beyond reasonable doubt that F did not believe at the time that it was necessary to do what he did in order to defend himself and J, the Crown can then seek to eliminate self-defence by proving beyond reasonable doubt that he had such a belief, namely that it was necessary to do what he did in defence of himself and his brother, nevertheless his conduct was not a reasonable response in the circumstances as he perceived them. If you are satisfied beyond reasonable doubt that F did not believe at the time of the stabbing that it was necessary for him to do what he did in order to defend himself and J, that is the first leg, then the Crown has proved the accused was not acting in self-defence and as I have said the appropriate verdict is guilty of murder.

If, however, you are satisfied that it was reasonably possible that F did believe that it was necessary to do what he did in order to defend himself and J but the Crown has satisfied you beyond reasonable doubt that the conduct of F was not a reasonable response to the circumstances as perceived by him either because his use of force was excessive or because it was otherwise unreasonable, then provided the Crown has proved all the other essential elements of the charge of murder the appropriate verdict is not guilty of murder but guilty of manslaughter.

If you are having difficulty comprehending this I must say I can understand but if you bear in mind the first structure, murder, intentional killing by reason to kill or inflict grievous bodily harm and the requirement the Crown has to eliminate self-defence it can do so in the ways that I have referred. The first way is the jury being persuaded beyond reasonable doubt F did not believe at the time that it was necessary to do what he did in order to defend himself. Whatever it was he did, he did to get out of that alley knowing that all hell was breaking loose as it were behind him. That would bring about a verdict of guilty.

If you are satisfied, however, that it is reasonably possible that F did believe that it was necessary to do what he did in order to defend himself and his brother then the Crown has satisfied you beyond reasonable doubt that his conduct was not a reasonable response to the circumstances as he perceived them either because his use of force was excessive or because it was otherwise unreasonable, then providing all the other elements have been proved your verdict is not guilty of murder but guilty of manslaughter. That is where the manslaughter element comes into the murder structure. To put it in short terms if it is established that the self-defence is excessive.

How do you get to not guilty? If you are satisfied that it is reasonably possible that the accused did believe that it was necessary to do what he did in order to defend himself and the Crown has not satisfied you beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as he perceived them, then the Crown has failed to eliminate self-defence and the appropriate verdict is simply not guilty in the structure of murder.

In the structure of murder to which I have been referring in 2002 the Parliament of this State passed particular sections of the Crimes Act relating to the notion of excessive self-defence and that only applies to self-defence or defence of another in a charge of murder. I want you to bear that in mind when considering the conduct of F and whether he had the required belief and the necessity of what he was doing and that it was reasonable in the circumstances, you must consider the circumstances as he perceived them to be at the time. It is easy to but must not be done to look at all of this with the benefit of hindsight. One looks at it in the realisation that calm reflection cannot always be expected of the participants in a situation such as the accused found himself in. Having said all of that, bearing in mind that attention must be paid to the circumstances as the accused perceived them, what do we have by way of evidence? That takes us to the accused’s perception.”

22 His Honour then read to the jury T 427-431 and T 479-488; and continued:

“You have heard enough. I have read that material out because of the emphasis on the self-defence and defence of another component of the perceptions of F and the conclusions to which you have to come as to whether in the circumstances it was reasonable that F believed his conduct was necessary and that his response in those circumstances as perceived by him were reasonable. So the first structure of murder, guilty of murder if the ingredient has been made out and self-defence has been eliminated by the Crown. Not guilty of murder but guilty of manslaughter if the ingredient of murder has been made out but the Crown has failed to eliminate self-defence. Not guilty of murder if some ingredient of the substantive charge itself has not been made out or if the Crown has failed to satisfy you beyond reasonable doubt in relation to the self-defence component as to excessive self-defence.”

If the Crown has failed to eliminate self defence, then that defence, as it were, although there is no obligation on the accused to prove it, has been made out and he is not guilty of murder or manslaughter.

If the Crown has satisfied [sic: but semble “not satisfied”] you beyond reasonable doubt as to the excessive response, to put it shortly, then your verdict is not guilty of murder, but guilty of manslaughter.”

23 Shortly thereafter his Honour invited submissions from counsel. Counsel then appearing for FD, (not being counsel appearing at the hearing before this Court), made submissions which are recorded as follows:

“HIS HONOUR: What was the matter you wished to raise Mr. Spencer?

SPENCER: Your Honour, the way you expressed and the Crown has again expressed self-defence is by saying that the accused was not acting in self-defence. My submission would be your Honour, perhaps the Crown must eliminate any reasonable possibility that the accused was acting in self-defence, rather than the way it has been put. That seems to be the law as given by Hunt J in Dzidekh (1990) 47 A Crim R 378.

Your Honour, trying to distinguish it is not a defence. There is no onus on the accused at all. Your Honour would use that particular terminology, that would be my submission. Perhaps I could hand up to your Honour a current paper prepared by Mr. Peter Zahra. It sets out the current law in self-defence.

HIS HONOUR: Thank you.

SPENCER: I am trying to assist your Honour. As the Crown’s written suggestion I would like the opportunity to consider it overnight.

HIS HONOUR: Yes. As I mentioned this morning I have a decision of Mr. Hunt J in Jones. At page 511, his Honour said: “In relation to the proof of a negative it is I believe more appropriate to ask whether the Crown has eliminated any reasonable possibility that the accused acted in self-defence.”

SPENCER: That’s the very wording I was asking for. Whilst your Honour might have said at the one point the Crown having disapproved put the negative onus but not intentionally, but that was what was being said.

HIS HONOUR: I cannot remember myself using the word disprove. Eliminated is the word.

SPENCER: You did use that, but you said must. I thought you said must disprove, but may be you didn’t.”

24 After further discussion, his Honour distributed to the jurors some written instructions dealing with the issue of self-defence in the context of the charge of murder brought against FD. The contents of those written instructions are, I apprehend, sufficiently clear from the following supplementary directions:

“On the assumption that the Crown has proved the four ingredients of murder, then the issue of self defence and/or defence of another having been raised, you go through the questions set out in sheet A. If one, if the Crown has proved beyond reasonable doubt all ingredients of the charge of murder, then has the Crown proved that F did not believe that his conduct was necessary to defend himself and/or his brother J.

Now, if the Crown has satisfied you beyond reasonable doubt that F did not have that belief, then that is the end of self defence and defence of another, and the verdict of guilty of murder.

If the Crown has not proved beyond reasonable doubt number one, but has proved beyond reasonable doubt number two, namely, that F’s conduct was not a reasonable response in the circumstances as he perceived them, and I recited some evidence about the circumstances, then the appropriate conclusion is that F has acted in excessive self defence and/or defence of another, and that reduces the verdict from murder to manslaughter in the first structure.

If the Crown has not proved both little one and little two, then the Crown has failed to eliminate self defence and/or defence of another, and the verdict you must then bring in is not guilty of murder and not guilty of manslaughter.”

25 It will be observed that Levine J gave the jury, and more than once, explicit directions as to the need for the so-called subjective test. Those directions were, in my respectful opinion, both correct and clear.

26 His Honour more than once spoke of the Crown’s relevant burden of proof as entailing the positive elimination by the Crown of self-defence.

27 In my opinion Ground 3 has not been made good.

Ground 8:

28 The ground is:

“His Honour failed to properly exercise his discretion pursuant to Section 53 of the Evidence Act in allowing the Crown Prosecutor to conduct a so-called “demonstration” between himself and the Appellant, on the most critical, contentious and controversial issue in the trial thereby causing irreparable prejudice to the Defence Case and the trial to miscarry.”

29 Section 53 of the Evidence Act 1995 (NSW) provides:

“(1) A judge may, on application, order that a demonstration, experiment or inspection be held.

(2) A judge is not to make an order unless he or she is satisfied that:

(a) the parties will be given a reasonable opportunity to be present, and

(b) the judge and, if there is a jury, the jury will be present.

(3) Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present,

(b) whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence,

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time,

(d) in the case of a demonstration – the extent to which the demonstration will properly reproduce the conduct or event to be demonstrated,

(e) in the case of an inspection – the extent to which the place or thing to be inspected has materially altered.

(4) The court (including, if there is a jury, the jury) is not to conduct an experiment in the course of its deliberations.

(5) This section does not apply in relation to the inspection of an exhibit by the court or, if there is a jury, by the jury.”

30 The idea of a court-room demonstration arose during the course of the cross-examination of FD by the Crown Prosecutor. The opening exchanges in that cross-examination were:

“CROWN PROSECUTOR: Mr. D, let’s get down to absolute basics: You acknowledge here and now in this court room that when Robert Taylor was stabbed that you had hold of the knife, don’t you?

A. Yes sir.

Q. And you acknowledge that at the time that Simon Taylor was stabbed four times that you had hold of the knife, don’t you?

A. No sir.

Q. Well, he didn’t stab himself, did he?

A. Like I said, I was jostling with him for the knife.

Q. You had hold of the knife at the time you had stabbed him?

A. He had hold of the knife.

Q. Did you have hold of the knife at the time he was stabbed?

A. I had hold of his hands.

Q. Did you have hold of the knife at the time he was stabbed?

A. No sir.”

31 Later in the course of the cross-examination the Crown Prosecutor returned to this topic. There followed these exchanges and developments:

“Q. Could you demonstrate for us how you attempted to pull the knife away, with his Honour’s permission, stand and demonstrate to us how you were attempting to pull away the knife?

A. I need a second person for that.

CROWN PROSECUTOR: With your Honour’s permission, myself.

HIS HONOUR: Yes, volunteer.

A. Where do you want it sir?

CROWN PROSECUTOR: If you could perhaps come here (indicated), did Simon Taylor have the knife in one hand or two hands?

A. One hand.

Q. Would you demonstrate to the Court how it was that you attempted to pull the knife away?

A. I’ve come from here and he’s (witness indicated) --

Q. You have to speak loudly.

A. I’ve come from his left hand side and from – if I can turn you like that, J was on the floor in (witness indicated) --

Q. In front of Simon Taylor?

A. Yes.

Q. Was Simon Taylor holding the knife out (indicated)?

A. Yes.

Q. How did you attempt to get the knife off him?

A. Struggle it off (witness indicated)

Q. Could you show us please?

A. Keep going. Keep going (witness indicated).

Q. Now, how do you say Simon Taylor come to be stabbed twice in the chest, have his nose sliced and thigh cut (indicated)?

A. When were struggling for the knife.

Q Show us?

A. Struggle.

Q. I want you to show me with the knife that resulted in all of that happening.

SPENCER: I don’t know whether demonstrations are permissible because for obvious reasons this cannot be recorded accurately. The transcript cannot record what is occurring. It’s my experience, your Honour, that this is not permissible for those reasons.

HIS HONOUR: It is just a bit hard to record this Mr. Crown.

CROWN PROSECUTOR: It is hard to record it, but the Evidence Act does permit demonstrations as it permits views and they form part of the evidence. I don’t recall the section number at the moment, but I will find it. Section 53: A judge may … be held. Section 53, and section 54 also refers to inferences that may be drawn by the jury.

HIS HONOUR: Section 53, yes. You will have to apply, won’t you?

CROWN PROSECUTOR: Yes your Honour.

HIS HONOUR: And you do so I presume?

CROWN PROSECUTOR: I do apply. And it’s an important issue in the trial and I would submit that perhaps afterwards your Honour could attempt a description for the record of what’s taken place.

SPENCER: Your Honour, it has to be a real demonstration. It can’t be a feign one. I mean, Mr. Tedeschi is not playing the role of the victim and opposing his force as the Crown has applied. It simply can’t be accurately and properly done in this court room. What will happen is the jury will be invited to look at this demonstration as though this is what happened and clearly can’t be so.

HIS HONOUR: Add the jury would be directed that this is not a replication as it could never be.

SPENCER: Correct, but that doesn’t alter the impact of what they are seeing.

HIS HONOUR: Even with all those reservations, and I would agree with you Mr. Spencer it has flaws in the system, and the jury are hearing this argument so the message is getting through, I hope that you would appreciate if I allow this to go ahead its value might be to some extent limited, but the section of the Evidence Act refers to assisting the Court in resolving issues of fact. “Assisting”.

SPENCER: It also does not your Honour allow the Court, including here the jury, to conduct an environment in a course of deliberations which I take it might do if they watch it here. They might replicate what they saw and argue it would involve 12 people saying what they saw they saw, et cetera, et cetera. That’s the flaw and I’m not doubting Mr. Tedeschi’s capacity to resist, but this might mean some fairly life and death type struggle which you can’t replicate in here.

HIS HONOUR: As I understand it, the objective is, as far as possible, to obtain some evidence as to how your client said he sought to remove the knife from Simon Taylor.

SPENCER: Yes your Honour. That’s right. I thought that had been done. He was then going to say how do you suggest he could have stabbed in the thigh, in the chest, in the nose. That’s not what the purpose was for. It was an extension of it and that’s where the danger lies.

HIS HONOUR: I think, Mr. Crown, you would have limit to how he attempted to get the knife away.

CROWN PROSECUTOR: Your Honour, what I am attempting to show is that for him to demonstrate to the Court how it is he attempted to wrestle the knife away from Simon Taylor and, if he can, to provide some explanation to offer him the opportunity of providing some explanation for how Simon Taylor came to be stabbed in those four different ways.

HIS HONOUR: Hasn’t he given evidence that he just doesn’t know?

CROWN PROSECUTOR: He can at least --

HIS HONOUR: He can give a demonstration how he attempted to get the knife, and I will allow the jury to exercise their common sense in the court room about all those matters. But you can address at length if you wish.

CROWN PROSECUTOR: If your Honour pleases, might I approach?

HIS HONOUR: Yes.

CROWN PROSECUTOR: Q. Mr. D, accept from me that Simon Taylor was right handed (indicated). I am going to make my arm completely limp so you can move it at your whim. I am not going to resist you at all. I want you to show the Court what movements you did in an attempt to wrestle, in a successful attempt to wrestle the knife away from Simon Taylor.

A. Okay.

HIS HONOUR: Just a minute.

SPENCER: Again, I don’t want to keep interrupting, but the evidence can’t be Mr. Taylor’s hand was limp.

CROWN PROSECUTOR: I’m suggesting.

HIS HONOUR: There’s no evidence he was right handed.

SPENCER: There’s no evidence he was right handed. Take it from me, the Crown is giving evidence from the Court that he was right handed.

HIS HONOUR: There is no evidence which was his dominant hand, nor is there evidence, as far as I can tell from this accused, as to which hand he saw Simon Taylor had the knife.

CROWN PROSECUTOR: I will get that.

CROWN PROSECUTOR: Q. Do you remember which hand he had the knife in?

A. No, I don’t sir.

Q. Well, I am right handed. Let’s do it with my right hand. Again, I will make it limp. I want you to demonstrate how you wrestled the knife away from him.

A. Limp as in?

Q. So you can move my arm freely.

A. Okay.

Q. As you wish.

A. Okay. He was just standing over J (witness indicated). I’ve gone in trying to get the knife. While I’m pulling, he’s pulling. I’m pulling, he’s pulling. We’re both pulling. So that’s as in like viciously pulling like that (witness indicated). Keep going?

Q. Yes please.

A. Struggle. Struggle (witness indicated).

Q. Keep going. Not too rough.

SPENCER: How is this going to be recorded?

HIS HONOUR: What is he doing Mr. Crown?

CROWN PROSECUTOR: Your Honour, he is pulling the knife away from him, towards him, away from him, towards him, away from him, towards him. He did that about three times.

HIS HONOUR: Q. Is that how you are explaining how you say you attempted to get the knife out of Simon’s hand?

A. Yes your Honour, but can’t do it properly because it’s, you can’t replicate what happened that night sir.

CROWN PROSECUTOR: Q. Do you want me to continue? Was there further action in which you attempted to get away the knife?

A. I didn’t count how many times I attempted to get the knife away from him.

Q. But show us further action you did to try to get --

A. The same, just more vicious.

Q. Just more rough?

A. I was trying to get, trying to get the knife.

Q. So, have you got any explanation --

HIS HONOUR: Right, just everyone gets back into their place.”

32 The appellant was not re-examined about any aspect of these events.

33 At an early point during the summing-up Levine J gave the jury these directions:

“The last thing I want to say to you before we take the break relates to the events that happened in the body of the Courtroom. The demonstration, if that is what it was, when Mr. F.D. was being cross-examined by the Crown. Let me say at once from my geographical position I probably did not have as good a view as you did as to what was going on there.

Mr. F. D. I do recall, and this may be important, asked that the Crown or prosecutor in relation to himself bear a certain relationship as to being on the side but the reality is that no way in the wide world could a senior counsel in his wig and gown with an accused in the body of the courtroom could re-enact, replicate, whatever it was that happened in the laneway. That brings to bear on that little exercise your common sense.

The next direction I give you that you do not in the jury room conduct experiments or demonstrations. That is a direction of law and one that is provided by statute.”

34 Later, at summing-up 59, and having read part of the transcript quoted above, Levine J touched very briefly, again, on the topic, saying:

“The Crown volunteered and then what took place was a so-called demonstration in the body of the Courtroom to which I have referred and from which you can make up your mind what, if anything, it means.”

35 It is now submitted that the jury should not have been present in Court during any argument about the propriety of having at all some such demonstration; or during any argument about aspects of the actual course of the demonstration.

36 This argument is, in my opinion, untenable. The short answer to it is that FD’s trial counsel, very well experienced as he is in the conduct of criminal trials, made no application that the jury be sent out.

37 It is next submitted that some impermissible prejudice was caused to FD’s case by the course of the demonstration. In that event the proper course for trial counsel, who had, in a way that this Court cannot have, a feel for what had actually happened and its impact upon the atmosphere of the trial, would have been to ask at once for precise directions aimed at neutralising that perceived prejudice; or, had the case been as obvious a case of unfair prejudice as was suggested in oral submissions to this Court, then to apply for the discharge of the jury.

38 The course of oral submissions before this Court brought counsel for the appellant to the point of saying, as to each of grounds 8, 5, 6 and 7, and in answer to a question whether counsel was submitting that any one of those grounds “is a stand-alone error of law capable of bringing down the conviction”, this:

“I have never actually pressed that. All I say is particularising them for (sic – but read “from”) the point of view of grounds one, two and nine, they do that in conjunction with the way the evidence fell. ……….”

39 Ground 8 is, in my opinion, untenable.

Ground 5

40 The ground is:

“His Honour erred in not correctly explaining to the jury the term “citizen’s arrest”.

41 This complaint derives from a passage in the closing address of the Crown Prosecutor. The following was put:

“Now ladies and gentlemen, I expect that his Honour will tell you that a person who’s witnessed an offence like that is legally entitled to make an attempt, using reasonable force to apprehend the perpetrators. Our submission to you is that Simon Taylor was only using reasonable force in crash tackling JD, or both of them, and trying to apprehend them. The question then becomes how was it he came by his injuries?”

42 Levine J directed the jury thus:

“A person in New South Wales is entitled to attempt and in fact apprehend a person who has committed a crime and to do so by using reasonable force. That is often referred to as a citizen’s arrest. That is the way the Crown characterised on its version of the events the conduct of at least Simon.”

43 The applicant’s written submissions do not address in the usual, compartmentalised way the notified grounds of defence. Under a rubric : “Course and conduct of the trial” the following paragraphs are set out:

“64. The Crown introduced the concept that Simon Taylor was in the process and legitimately allowed to do so of performing a “citizen’s arrest”.

65. This term was not really defined and what goes with it by way of legitimate responsibility and action and in what circumstances. It appears to be the accepted situation that because Simon and his mother had been robbed in the courtyard, that he was entitled to do whatever it took to stop and apprehend the two culprits.

66. The aspect of reasonable force and what it meant in the tackling of the two men by Simon and the use of the knife in the context of the struggle between him and F appears not to have been separately canvassed in relation to the action of the two men. The impression appears to be that what ever Simon was doing was presumed to be lawful because he was the person along with his mother who had been robbed, while F was the thief. This would undoubtedly be a legitimate argument without needing further explanation except for the reality that the issue of self-defence and the defence of another was squarely and reasonably raised and the fact that J had been stabbed.

67. However, this aspect of reasonable force should have been canvassed by the Court, even if not by Defence Counsel, as it was introduced by the Crown in its use of the concept of a citizen’s arrest.

The danger of the unexplained meaning of a citizen’s arrest and its legal implications, is that it has been used by the Crown to negate the direct evidence of F in Relation to Simon stabbing J, and thereby discounting any issue of self-defence.”

44 No objection of any kind was taken at trial either to the Crown submission or to Levine J’s direction. I think that the overwhelming inference is that it never crossed the mind of experienced defence counsel that the foregoing brief episodes were of any moment. I can see no error of law in anything that was said either by the Crown Prosecutor; or, more importantly, by Levine J.

45 Ground 5 is in my opinion untenable.

Ground 6

46 The ground is:

“His Honour erred in his directions to the jury as to the meaning and use of the word “immediately” in the context of the situation.”

47 Levine J gave the jury a document entitled “Issues for Decision by Jury”. It comprises two pages. The first page deals with the case of F.D. The second page deals with the case of J.D. The document summarises clearly the essential elements of each charge or available alternative verdict.

48 In the case of J. D, the instructions speak of the need for the Crown to prove the fact of Simon Taylor’s death: “caused by an unlawful and deliberate act of …….(F.D.) …… immediately after a robbery in which the accused was jointly involved with ……(F.D).”

49 The present complaint is that the word “immediately” is nowhere used in the instructions about the case of F.D.

50 Bearing in mind: first, counsel’s statement as recorded at [38] herein; secondly, the absence of any indication of an impermissible use by his Honour of the word “immediate” in the charge to the jury; and thirdly, the failure of trial counsel to take any objection to the relevant parts of the written directions; this ground is, in my opinion, untenable.

Ground 7

51 The ground is:

“His Honour erred in allowing the Crown to put speculative inferences on the motive of why the Appellant went to the aid of his brother, as if it was a mutually exclusive aspect thereby subjectively denying self-defence to the Appellant at all.”

52 The submissions put on this ground are, with respect, unfocused and confusing. They are tied up with the “citizen’s arrest” argument that has been discussed in connection with ground 5. It is, perhaps, the fairest course to quote simply part of paragraph 125 and paragraph 126 of the written submissions put in for the appellant:

“125. ………. The danger is however that the suggestion by the Crown on this issue of lawful arrest may well have contributed to the jury not properly considering the subjective test of self-defence by F; thereby denying any chance of having been found not guilty of Murder but guilty of Manslaughter.

126. This is where his Honour may well have misdirected himself and the Jury by allowing the Crown Prosecutor to eliminate the issue of self-defence by the speculative inference that the one and only possible motive for F attacking Simon was to escape lawful arrest; an assertion which fly’s (sic) in the face of the evidence and the circumstances at the scene in the laneway.”

53 Insofar as paragraph 126 makes sense at all, nothing in particular in the summing-up seems to be relied upon; and no objection was taken at trial.

54 This ground, too, is in my opinion untenable.

Grounds 1, 2 and 9

55 The grounds are:

“1. The verdict of guilty is unsafe and unsatisfactory in that it is unreasonable on the state of the evidence and the correct verdict ought to have been one of manslaughter.”

“2. The evidence in relation to the issue of self defence especially in defence of another was such that it was and is unreasonable for the jury to have rejected it on the basis that the Crown could not disprove self-defence beyond reasonable doubt, as distinct from the aspect of whether excessive force was used.”

“9. That the confused state of the evidence as to what happened in the laneway, the uncertainty of the issues in relation to self-defence and elimination of same by the Crown, compounded by a juror having to be dismissed after a couple of days after closing addresses and in a murder trial of this nature, plus the remainder of the jury deliberating its verdicts from 10th to 17th December 2004, all taken in combination, all point to an unsafe and unsatisfactory verdict and/or miscarriage of justice to the Appellant.”

56 It is futile to attempt an individual dissection of these three grounds. The appellant’s counsel before this Court himself accepted that the three grounds all raised, essentially, the proposition that the verdict of murder could not be supported reasonably upon a fair view of the whole of the evidence at trial.

57 The relevant principles are not in doubt. They are stated authoritatively by the High Court of Australia in M v The Queen (1984) 181 CLR 487 at 493-495. The basal question for this Court is whether it thinks “that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” of murder. The proper standing of the jury in a criminal trial; and the advantage enjoyed by the jurors who actually saw and heard the witnesses; are essential considerations for this Court as it goes about making its own assessment.

58 There was no doubting the fact of the death of Simon Taylor. There could be, in my opinion, no reasonable doubting that Mr. Taylor suffered four serious stab wounds of which two were fatal. The only remaining issues as to the charge of murder were therefore:

1. whether the act(s) of F.D. had inflicted the fatal wounds; and, if so,

59 Fundamental to any conclusion about these matters was the assessment of the honesty and the reliability of the relevant evidence of F.D. himself. The verdict of the jury makes plain that the jury was not prepared to accept and to rely upon F.D’s version of the relevant events as being a reasonable possibility. Fundamental to that version was F.D’s evidence that he had seen Simon Taylor standing, knife in hand, over a prone J.D; that he had seen blood on J. D’s shirt; that he at once concluded that Mr. Taylor had stabbed J.D: and that he, F.D, had at once, and so to speak, swung into action in order to try to get the knife away from Mr. Taylor.

60 F.D’s case was thus, essentially, that the jury, taking a reasonable view of the evidence at trial, could conclude only that there remained open, at the very least, a reasonable possibility either that F.D’s own acts had not been the cause of death or that insofar as it might be found to the contrary, his relevant acts were acts done lawfully in his own defence and/or in defence of J.D.

61 In my opinion it was well open to the jury to reject those possibilities as being reasonable ones.

62 First, it was open to the jury to regard F.D. as both a plausible and a persistent liar.

63 Secondly, it was open to the jury to reject the proposition, fundamental to F.D’s case, that he had not realised at the time that he had inflicted any one of the five stab wounds, one of which was inflicted upon Mr. Robert Taylor and the remaining four of which were inflicted upon Mr. Simon Taylor.

64 Thirdly, it was open to the jury to reject a version of events which had Mr. Simon Taylor tackle both F.D. and J.D; then go and get the knife; then return to J.D, still prone on the ground, and stab him in the arm, causing J.D’s shirt to become bloody; and then had himself, F.D, having seen all of those occurrences, get up from where he himself had been brought down by Mr. Taylor’s tackle, and run into the Taylor/J.D confrontation in an attempt to get hold of the knife.

65 Fourthly, it was open to the jury to take the view that the nature and location of the wounds which had been inflicted upon Mr. Simon Taylor, coupled with the medical evidence concerning the estimated degree of force which would have been required so as to have inflicted in particular the two chest wounds, did not support the picture painted by F.D. of a struggle between him and Mr. Taylor in which the latter was holding the knife which F.D. was attempting to keep away from himself but was not steering deliberately towards Mr. Taylor.

66 Fifthly, aspects of F.D’s evidence were contradicted by the evidence of Mr. Robert Taylor. I see no reason why it was not open to the jury to prefer Mr. Robert Taylor’s version where it clashed with that of F.D.

67 In M v The Queen the joint judgment of Mason CJ, and Deane, Dawson and Toohey JJ contains the following statement:

“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to leave the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

68 I am wholly unpersuaded that there is any such significant possibility in F.D’s case.

69 In my opinion, F.D’s appeal against his conviction should be dismissed.

The Application of F.D for Leave to Appeal against Sentence: Ground 1

70 The Ground is:

“His Honour erred in the accumulation of the sentences for offences arising from one overall event of criminality.”

71 Levine J was plainly aware that, in his Honour’s own words:

“It is especially important to bear in mind that ….. (FD) …... stands to be sentenced not merely for three gravely serious offences but three offences involving different victims.”

72 At a later point in the remarks on sentence, and when considering the requirements of section 21A of the Crimes (Sentencing Procedure) Act, his Honour returned to that proposition, saying:

“By reason of there being three offences committed against three different people it is extraordinarily difficult realistically in relation to each offence, or fairly on a totality basis, to decide upon any component that would represent aggravation or mitigation without running the risk of double or triple counting or undue minimisation.”

73 In my respectful opinion all of the foregoing perceptions of Levine J were plainly sound. That three separate and serious crimes had been committed against three separate victims, itself warranted a prudent measure of cumulation in order to reflect in a real way that total criminality.

74 To that bare proposition there can be added the findings made, and in my own view correctly made, that F.D. and J.D. had participated in a pre-meditated joint criminal enterprise to rob in company; that the robbery was, so far as concerned F.D., “a particularly callous robbery for purely financial gain”; that F.D. had held the knife that inflicted the wounds upon Mr. Robert Taylor and Mr. Simon Taylor; that F.D. had stabbed Mr. Simon Taylor with intent to inflict upon him grievous bodily harm; and that F.D., when he committed these three crimes, was subject to a good behaviour bond that had been given to him in April 2002.

75 It seems to me that there is no need for further examination of F.D’s case before concluding that it simply cannot be correct to say that there was error of law in some partial accumulation of the three sentences passed upon F.D.

76 Ground 1, asserting as it does the contrary, is in my opinion not made out.

Ground 2

77 The Ground is:

“His Honour failed to give full and proper consideration to the aspect of Special Circumstances for this Appellant.”

78 I adhere to what I wrote in Reg v Simpson (2001) 53 NSWLR 704.

79 Levine J cannot be said to have settled upon provisional sentences without taking fairly into account the relevant subjective features of F.D’s case. His Honour refers plainly to them in the remarks on sentence. His Honour found that there was no evidence of genuine remorse; and that the evidence in hand could not support a finding that F.D. was suffering from schizophrenia or other mental illness. I do not see how it could be contended sensibly that these findings were not open to his Honour.

80 Once those findings had been made, then the plain fact of the matter is that there was no remaining basis, grounded upon relevant and credible evidence, for reducing by reason of “special circumstances” the statutory proportion as between head sentence and non-parole period. F.D. stood to be sentenced for three serious crimes of which one was a murder. His subjective factors were, in my view, not particularly compelling in such a context. His counsel at first instance conceded, and as I respectfully think, both correctly and sensibly, that he could point to no real “special circumstances” unless the available psychological and psychiatric evidence could be strengthened. Counsel sought and was readily granted an adjournment for that purpose. At the resumed hearing counsel frankly stated that no additional material had been forthcoming.

81 In all of those circumstances, I am of the opinion that Ground 2 has not been established.

Ground 3

82 The Ground is:

“That there is a “parity” issue in his Honour finding Special Circumstances for the Appellant’s brother and thus reducing the term of his non parole period, yet not applying the same criteria in this regard to the Appellant.”

83 This ground is, in my respectful opinion, wholly misconceived. F.D. was sentenced for three serious crimes of which one was a murder. He committed those crimes in breach of a good behaviour bond. J.D. was sentenced for two serious crimes, neither of which was a murder; and one of which followed a jury verdict that acquitted him of the crime of murder. His antecedents did not include a current bond. He had in fact offered prior to his trial a plea of guilty to manslaughter.

84 The cases of F.D. and J.D. were, by the time both of them stood for sentence, so manifestly different in substance that no parity point, that notion being correctly understood, could be said to arise at all.

85 In my opinion Ground 3 has not been made good.

Ground 4

86 The Ground is:

“The sentence is manifestly excessive in all the circumstances.”

87 I do not see how this ground can possibly succeed. As earlier herein noted, the effective overall sentence for F.D. is one of imprisonment for 26 years; and the effective time to be served in any event is 20 years. To set out cold-bloodedly to rob a lady of a valuable item of jewellery, and that with the use of an offensive weapon; maliciously to wound her husband in the course of carrying out that design; and then to stab her son to death in an ensuing confrontation; is in my opinion behaviour, the total criminality of which amply warrants in law and in fact sentences of the severity passed by Levine J.

88 In my opinion Ground 4 has not been made good.

Orders

In my opinion the Court should order:

[1] That leave to appeal against sentence be granted;

[2] That the appeal against sentence be dismissed.

The Crown Appeal against Sentence: F.D

89 The relevant principles are stated as follows in the judgment of this Court, (Gleeson CJ, Hunt CJ at CL and McInerney J), in Reg v Allpass (1993) 72 A Crim R 561 at 562-563:

“The case has excited a deal of public attention, and it is appropriate that we should begin by stating, in a summary form, some principles relating to the jurisdiction we are exercising:

1. A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence if it considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance.

Griffiths

Malvaso

Dodd

Environment Protection Authority v Australian Iron & Steel Pty Ltd

3. If a Crown appeal against sentence is successful, and the appellate court re-sentences the respondent, it does so in the light of all the facts and circumstances as at the time of re-sentencing. Events which have occurred after the original sentencing may be relevant.

4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.

5. An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance.”

90 The submissions of the Crown identify four instances of suggested error:

· “the misapplication of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW);

· the treatment of the victim impact statements and his Honour’s failure to take into account a relevant consideration on sentencing, namely, the emotional harm and loss occasioned as a result of the murder/manslaughter offence. That harm was a relevant factor to the sentencing exercise as a result of the enactment of s 21A 2(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and reflected a purpose of sentencing provided for by s 3A of that Act.

· the approach to the standard non-parole period;

· ………………………………………………in the case of F.D., the failure to accumulate at all in respect of the offence of malicious wounding with intent to cause grievous bodily harm, and the failure to sufficiently accumulate the sentence for murder, in order to reflect the overall criminality involved.”

· Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

91 It is useful to begin by setting out what Levine J said on this topic:

“63. In view of the opinion I have formed at to the utmost gravity of each of the crimes FD committed, I cannot permit material such as this to weigh against the imposition of a sentence which, in the end, reflects the objective gravity of those crimes. I am not prepared to allow matters under s 21A to operate in aggravation of the sentences. By reason of there being three offences committed against three different people it is extraordinarily difficult realistically in relation to each offence, or fairly on a totality basis, to decide upon any component that would represent aggravation or mitigation without running the risk of double or triple counting, or undue minimisation.

Regina v Dickinson

“organised criminal activity”

66. In relation to mitigation, the only two subparagraphs available in relation to FD are : (g) the offender is unlikely to re-offend, and (h) has good prospects of rehabilitation.

67. It is appropriate in my view, by reason of the multiplicity of charges and victims, to avail myself of s 21A(5) – namely, that while there may be aggravating or mitigating factors as outlined I do not propose to increase or reduce the sentence for the offences by reason of those matters. F.D stands to be sentenced for the most serious of three crimes against three victims and those sentences for those crimes must involve a substantial component for general deterrence and personal deterrence as well as the other factors referred to in s 3A of the Act, which I read out at the beginning of these remarks.”

92 I agree that it would not have been appropriate for Levine J to have used section 21A(5) as a vehicle for ignoring completely the obligation imposed by section 21A(1). I think, however, that a fair reading of paragraph 64 quoted above does not justify an inference that his Honour did in fact so misuse section 21A(5).

93 I agree, too, with the Crown’s written submission that section 21A (5) “simply preserves the discretion of the sentencing judge in deciding the significance to be attributed to a particular aggravating or mitigating factor”. The phrase ‘does not require’ makes it clear that the presence of a particular factor will not have some mandatory effect on the sentencing outcome”.

94 I read paragraph 67 above, in particular, as indicating that Levine J felt that, rather than go through an exercise of applying, literally and perhaps with meticulous artificiality, the section 21A criteria to each in turn of the three offences for which His Honour was sentencing, it was a fairer approach, and one less likely to result in either impermissible double counting or impermissible minimalisation, to have regard to the relevant section 21A criteria in an undifferentiated way and as part of an overall instinctive synthesis. His Honour saw this as being a permissible approach by reason of section 21A(5); and I agree that it was.

95 In my opinion this complaint has not been substantiated.

· The Victim Impact Statements

96 Once again it is useful to attend to what Levine J actually said:

Crimes (Sentencing Procedure) Act

Regina v Previtera

Regina V Berg

Regina v King

19. Mrs. Rosalie Taylor read her statement as a family victim in relation to the death of her son. Mrs. Jane Chapman read her statement as a family victim in relation to Simon’s death as Simon’s sister. Mr. Robert Taylor read his statement as both a family victim in relation to the death of his son and as a primary victim in relation to the malicious wounding with intent to cause grievous bodily harm done to him by F.D. By reason of the status of victim impact statements, and in no way seeking to diminish what each of the victims have said, I think in the case of Mr. Robert Taylor it is appropriate that I have regard to what he said about the physical scars from the knifing, not as a discrete matter in aggravation of the penalty under s 21A, but as a factor to be taken into account, as it always is in a case such as this, where a knife has been used to stab a victim so grievously, in weighing the elements of general deterrence and personal deterrence.

20. Otherwise, in relation to Mr. and Mrs. Taylor and Mrs. Chapman, each has expressed intense grief for himself or herself and for the family eloquently, and it is appropriate that I should acknowledge the dreadful loss that Simon’s death has caused to his family and, from what they said, to the community.

21. For myself, the process of sentencing is to be dispassionate and objective.”

97 The provisions of Division 2 of Part 3A of the Crimes (Sentencing Procedure) Act, and of its statutory predecessor, have always been controversial. That is because, at least as it seems to me, the statutory scheme attempts to balance interests that are not easily balanced.

98 There is, first, the imperative need to ensure that no offender is sentenced upon a basis that yields to a “lynch mentality”, to borrow from Perry J in Reg v Bermingham(No. 2) (1997) 96 A Crim R 545 at 549.

99 There is, secondly, the no less imperative need not to allow an offender to be sentenced upon a basis, or in a particular manner, that is dictated, more or less, by the victim(s). And even less so upon a basis, or in a particular manner, that responds, more or less, to the malignant prejudices that are daily the fruit of what Brennan J described as follows in The Queen v Glennon (1992) 173 CLR 592 at 611:

“Another phenomenon which has contributed to the problem in recent years, especially in the media of television and radio, is the promotion of personalities who affect to convey the moral conscience of the community and to possess information, insights and expertise in exceptional measure.”

100 There is, thirdly, the need to afford the victims of crime, and especially the victims of violent crime, a forum in which they can make a public statement in words of their own choosing, in order to have the emotional catharsis of ensuring that their grief and loss have not been either ignored altogether, or expressed in what they see as an inadequate way.

101 There is, fourthly, a political imperative deriving from perceived voter dissatisfaction with sentencing outcomes in serious criminal cases, and especially in cases of serious crimes of violence. This is, for many a politician, an issue of real consequence; but it is no easy matter to deal with volatile electoral emotions in a way that does not lay waste the accumulated wisdom of the common law of crime and punishment.

102 Division 2 seeks to grapple with all of these considerations. Not surprisingly, the sections which constitute the Division are replete with finely calibrated ambiguities. Thus, for example, section 28(4)(b) and (5):

“(4) Despite subsections (1), (2) and (3), a court: ………… (b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so.

(5) A court may make a victim impact statement available to the prosecutor, to the offender or to any other person on such conditions (which must include conditions preventing the offender from retaining copies of the statement) as it considers appropriate.”

103 In Reg v Previtera (1997) 94 A Crim R 76, Hunt CJ at CL in the course of passing sentence upon an offender who had been convicted of murder, ruled that it was inappropriate to consider a victim impact statement provided by two children of the murder victim. His Honour explained at pp 86, 87 as follows what he saw as the correct principles:

not

The first is that the attitude of the victim and the others affected by the crime is, basically, that no amount of punishment will ever compensate them for their loss or injury. That is a very understandable human attitude. It is one well based in the Old Testament. But, as I have endeavoured to demonstrate, the issues of punishment and compensation are fundamentally distinct.

The second reason why the victim and the others affected by the crime are sometimes not satisfied by the sentences imposed by the criminal courts is that they do not always realise – or, perhaps, do not accept – that sentences are expected to serve many different purposes, some of them inconsistent with the others. Those purposes are the protection of society, personal and public deterrence, denunciation of the crime, retribution for the injury caused and the reform of the offender. Retribution (or the taking of vengeance for the injury done) is but one of those purposes, and care must be taken that vengeance alone is never equated to justice. Again, it is understandable that the view of the victim and the others affected by the crime as to which purpose should predominate in the particular case will sometimes differ from that of the courts, whose duty it is to attempt to satisfy all of those purposes.

directly

The law already recognises, without specific evidence, the value which the community places upon human life; that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar. It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another. It would therefore be wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in the one case than it is in the other.”

104 The competing interests of which I previously spoke seem to have become progressively harder to balance sensibly. The views expressed in Previtera have become, in consequence, controversial even in this Court. That such is indeed the case is borne out by the decisions to which reference is made in paragraphs 61 through 70 of the Crown’s written submissions.

105 In a very recent appeal: Reg v Tzanis [2005] NSWCCA 274, a five-Judge Court was specially convened in order to resolve various differences in viewpoint that arise by reason of those earlier decisions. The result was, if one may say, something of an anti-climax, for as Spigelman CJ explained, with the concurrence of Wood CJ at CL, of Hunt AJA (as Hunt CJ at CL had become), and of Howie and Buddin JJ:

Previtera

Bollen

106 Tzanis was decided after Levine J had passed the sentences here relevant.

107 My own view about the case now put by the Crown upon the vexed question of victim impact statements is that the present appeal is not an appropriate vehicle for determining current differences of opinion unless such a course cannot properly be avoided.

108 In the present appeal, it seems to me that there is no need to become enmeshed in philosophical or semantic niceties. Levine J was plainly alive to the relevant requirements of the Crimes (Sentencing Procedure) Act. When his Honour speaks, - and, surely, speaks correctly and appropriately, - of his perceived need to take care that he remain “dispassionate and objective”, I understand his Honour to be saying that nothing in the Act requires that he treat the victim impact statements in any way that is merely passionate and subjective. Those latter qualities are the antithesis of just and principled sentencing, whether the passion and subjectivity are those of the Judge, of the victim(s), of the media, or of legislators, or of any combination of them.

109 In my opinion a fair reading of the entirety of paragraphs 18 through 21 of the remarks on sentence does not support the complaint now made.

· The Standard Non-Parole Period

110 At the proceedings on sentence the Crown argued that there were certain characteristics of the murder of Mr. Simon Taylor that put the crime into what was described as a “more serious category of murder”. I infer that what was actually intended by that description was to fix the criminality of the murder at some indeterminate point between the standard non-parole point: that is to say, “the middle of the range of objective seriousness” for murder; and what was described as the “most serious category of murder”.

111 Levine J dealt in paragraphs 52, 53 and 54 of the remarks on sentence with these concepts:

“more serious category of murder”

Way

“more serious”

“most serious”

53 The two characteristics to which the Crown refers would place this matter outside the middle range but still not in the most serious category. That is almost the best one can say. There is no doubt minds would differ as to the ambit of all the categories and ranges within the crime of murder, especially when the intention was not to kill but to cause grievous bodily harm.

54. The upshot of this is that I will treat the standard non-parole period as a guide and as I propose partially to cumulate the sentences in relation to those offences to attain the requisite totality, the non-parole period will in the end be less than the standard non-parole period.”

112 In a recent decision of this Court, (Sully, Hidden and Hall JJ): Reg v Reid [2005] NSWCCA 309, I explained at paragraphs 15 through 20 what I believe to be the relevant legal principles in a process of sentencing that entails the application of the standard non-parole period statutory scheme. I need not now repeat myself.

113 In my opinion Levine J correctly assessed the objective seriousness of the murder as lying somewhere above the notional statutory mid-range, and the “worst category of murder” level. That would equate, initially, to a non-parole period of more than 20 years; although just how much more must be, in the nature of things and as Levine J correctly recognised, a matter as to which reasonable minds would differ.

114 His Honour was then required to consider the circumstances of aggravation and of mitigation as enumerated in section 21A of the Crimes (Sentencing Procedure) Act; and “any other matters that are required or permitted to be taken into account by the court under any act or rule of law”. Those considerations were pertinent to an assessment of the justification, if any, for setting a non-parole period of less than 20 years for the murder.

115 As Mason CJ, Brennan, Dawson and Toohey JJ remarked in their joint judgment in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476:

· The misapplication of s21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

· The treatment of the victim impact statements and his Honour’s failure to take into account a relevant consideration on sentencing, namely, the emotional harm and loss occasioned as a result of the murder/manslaughter offence. That harm was a relevant factor to the sentencing exercise as a result of the enactment of s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and reflected a purpose of sentencing provided for by s3A of that Act.

· The approach to the standard non-parole period.

· The failure to at least partially accumulate the sentences in the case of J.D.; and in the case of (F.D.), the failure to accumulate at all in respect of the offence of malicious wounding with intent to cause grievous bodily harm, and the failure to sufficiently accumulate the sentence for murder, in order to reflect the overall criminality involved.”

The Misapplication of s21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)

149 So far as is presently relevant the section provides:-

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.

(3) The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:-

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

150 What his Honour said in the course of considering the situation of F.D. and about which complaint is made was as follows:-

“63. … I am not prepared to allow matters under s21A to operate in aggravation of the sentences. By reason of there being three offences committed against three different people it is extraordinarily difficult realistically in relation to each offence, or fairly on a totality basis, to decide upon any component that would represent aggravation or mitigation without running the risk of double or triple counting, or undue minimisation.

Regina v Dickinson

65. I add that subparagraph (m), which provides that the offence involving multiple victims may be used in aggravation, has no application here. There was only one victim for each offence. I further add that I do not understand what the phrase “organised criminality activity” means in that subparagraph (m).

66. In relation to mitigation, the only two subparagraphs available in relation to (F.D.) are (g) the offender is unlikely to re-offend; and (h) has good prospects of rehabilitation.

67. It is appropriate in my view, by reason of the multiplicity of charges and victims, to avail myself of s21A(5) – namely, that while there may be aggravating or mitigating factors as outlined I do not propose to increase or reduce the sentence for the offences by reason of those matters. (F.D.) stands to be sentenced for the most series of three crimes against three victims and those sentences for those crimes must involve a substantial component for general deterrence and personal deterrence as well as the other factors referred to in s3A of the Act, which I read out at the beginning of these remarks.

151 When dealing with J.D., his Honour said:-

“79. As I did with (F.D.), s21A(5) will apply and whilst aggravating and mitigating factors are known to the Court I do not propose to increase or reduce the sentences for the offences thereby.”

152 In light of the terms of s21A(5), there can be no doubt that in an appropriate case, a sentencing judge is entitled to adopt the approach reflected in the words of Levine J, “I do not propose to increase or reduce the sentence for the offences by reason of those matters”, i.e. aggravating or mitigating matters. The Crown’s submissions conceded as much as they conceded his Honour was correct to guard against double counting. However it was submitted that there were some factors present which, in the circumstances, precluded the former approach in the sentencing of F.D. One was that the offences were committed in company. A second was that the offences were committed in breach of a bond to which F.D. was subject at the time. In relation to this latter matter, the Crown drew attention to R v Richards [1981] 2 NSWLR 464 at 465 R v Readman (1990) 47 A Crim R 181 at 184) and R v Way (2004) 60 NSWLR 168 at [95] and [96] and the repeated statements in this Court to the effect that “the commission of an offence by an offender who is in the community on conditional liberty… is an aggravating factor relevant to the determination of the appropriate punishment for the offence, either because it demonstrates a higher level of criminality or because it highlights the need for deterrence so as to make it clear, for example, that offenders who abuse their conditional liberty will receive additional punishment.”

153 For my part, I take the view that the acceptance or rejection of the Crown submission depends upon what aspect of the sentencing is or was being referred to. In its very nature almost all sentencing involves a consideration of a wide variety of factors. Sometimes one will loom large. Sometimes, it will tend to tend to pale into, or almost into, insignificance, compared with others. This case provides an illustration. The presence of company was a significant aggravating factor to the robbery. It was clearly designed and was calculated to improve the chances of success. Furthermore, quite apart from s21A, a comparison of the terms of s94 (which deals with simple robbery) and s97, one of the section under which F.D. was convicted, (and which deals with, inter alia, robbery in company and robbery with an offensive weapon) makes it clear that company in the commission of an offence is regarded as increasing the criminality involved in it.

154 On the other hand, it does not seem to me that the presence of company had much to do with the degree of criminality in F.D.’s offence of murder: And insofar as the presence of company did have anything to do with that offence, it is overshadowed by other factors such as the death of Simon Taylor, the deliberate striking of him with a weapon as dangerous as a knife and the intent to do grievous bodily harm.

155 Furthermore while, as I have indicated, the presence of company is significant in the sentencing of F.D. for the robbery offence, it does not necessarily follow that it must be so when consideration is given to the overall sentence to be imposed on F.D. In a determination of that overall sentence, considerations of his overall criminality in the 3 offences and of totality come into play and the one issue of the presence of company becomes of much lesser relative importance.

156 Although the dichotomy is not so striking, a somewhat similar situation exists in respect of the fact that the F.D. was on conditional liberty at the time. That fact also is of appreciably more significance in the case of the robbery offence because that was premeditated. In the emotion charged atmosphere in which the other offences were conceived and committed, while one would hope that the bond to which F.D. was subject would have encouraged him to avoid situations where offending was liable to occur or constrain his actions in them, and some blame attaches to him for not ensuring that was the situation, it is hardly surprising that once a situation pregnant with emotion arose, the bond became of no operative weight.

157 Thus, at least if it is considered in isolation, I see no error in Levine J’s remark in paragraph 67 that “It is appropriate in my view, by reason of the multiplicity of charges and victims, to avail myself of s21A(5) – namely, that while there may be aggravating or mitigating factors as outlined I do not propose to increase or reduce the sentence for the offences by reason of those matters”. As I read that passage, his Honour was talking of the overall sentence to be imposed on F.D. and in that context he was fairly entitled to take the view that the fact that the offences were committed in company was of so little significance compared with the other factors to be reflected in that sentence that he would not increase the sentence on account of it.

158 The same applies in relation to the other matter to which the Crown referred, the fact that F.D. was on conditional liberty at the time.

159 I do not take the same view as to the earlier passage which I have quoted from paragraph 63 of his Honour’s remarks where his Honour was referring to the “sentences”. In that connection it is of significance that his Honour seems to have dealt with issues of totality by making the sentences concurrent rather than by reducing any on that account. In this situation, I see no basis upon which his Honour was justified in not allowing the presence of company and F.D.’s conditional liberty to operate as a matter of aggravation in connection with the determination of the sentence for his robbery offence although because of the sorts of considerations to which I have already referred, I think he was entitled to do so in respect of the other offences.

160 Furthermore, his Honour’s suggested reason for taking this stance also contained error. In the first place, there was nothing in either in the matters to which his Honour there referred or otherwise that created or contributed to any difficulty in identifying as aggravating factors the fact that F.D.’s offences were committed in company and that F.D. was on conditional liberty at the time. Secondly, it does not seem to me that difficulty in deciding what aggravating or mitigating factors there are is an adequate reason, except in the case of matters in respect of which one can say they will not influence the result, for not doing so. Parliament has dictated that a judge shall take such of the matters as exist into account.

161 In saying what I have I do not mean to suggest that a judge must, in every case, consider each of the numerous sub-paragraphs in s21A and make a finding whether he is satisfied, to the relevant standard, it exists. In many cases there are such factors but to a degree which could not affect the result. However, where there are factors that reasonably may, difficulty in determining whether they exist is not a reason for avoiding the task that Parliament has imposed.

162 Nor do I see the risk of double or triple counting as an adequate reason for not performing that task. A judge’s task is to identify any factors relevant and then see that he does not count them more often than appropriate.

163 Thus I am of the view that there was some error in Levine J’s approach to the s21A.

The Treatment of the Victim Impact Statements …

164 What his Honour said relevant to this complaint was:-

Regina v Previtera

Regina v Bert

Regina v King

19. Mrs Rosalie Taylor read her statement as a family victim in relation to the death of her son Simon. Mrs Jane Chapman read her statement as a family victim in relation to Simon’s death as Simon’s sister. Mr Robert Taylor read his statement as both a family victim in relation to the death of his son and as a primary victim in relation to the malicious wounding with intent to cause grievous bodily harm done to him by (F.D.). By reason of the status of victim impact statements, and in no way seeking to diminish what each of the victims have said, I think in the case of Mr Robert Taylor it is appropriate that I have regard to what he said about the physical scars from the knifing, not as a discrete matter in aggravation of the penalty under s21A, but as a factor to be taken into account, as it always is in a case such as this, where a knife has been used to stab a victim so grievously, in weighing the elements of general deterrence and personal deterrence.

20. Otherwise, in relation to Mr and Mrs Taylor and Mrs Chapman, each has expressed intense grief for himself or herself and for the family eloquently, and it is appropriate that I should acknowledge the dreadful loss that Simon’s death has caused to his family and, from what they said, to the community.

21. For myself, the process of sentencing is to be dispassionate and objective.”

165 The Crown’s complaint arising from this passage involved three steps. Firstly, the Crown submitted that the evidence before his Honour, particularly in the form of victim impact statements, demonstrated that the harm was substantial. Secondly, that these remarks made it clear that his Honour did not take into account at all in determining the appropriate sentence, the injury, harm, loss or damage caused to the parents and sister of the deceased. Thirdly, the Crown submitted that the Crimes (Sentencing Procedure) Act made it obligatory for his Honour to have regard to the injury etc caused to the parents.

166 A reading of those statements establishes the first of these points.

167 I also accept that the import of his Honour’s remarks is as contended for by the Crown. His Honour’s distinction between what the victim(s) said and that what he would take into account were the physical scars, his failure to make any finding as to the impact of events on Simon Taylor’s family beyond reference to their “expressed intense grief” and acknowledgement of a “dreadful loss” makes this clear.

168 Although of course in sentencing, a Judge is required to be dispassionate is impossible to regard his Honour’s reference to this, considered in the context and by way of contrast with what he had said in the immediately preceding paragraphs, otherwise than as emphasising that his decision was not going to be influenced by the impact of events on Simon Taylor’s relatives.

169 The Crown’s submission that the Crimes (Sentencing Procedure) Act made it obligatory for his Honour to have regard to the injury etc caused to the parents relied on the terms of s21A(2)(g) which I have quoted and s3A of the same Act. That section provides:

The purposes for which a court may impose a sentence on an offender are as follows:-

170 For many years the approach of the Courts has been to disregard loss or injury suffered by persons other than the victim directly injured by a crime. In the case of offences causing death it has been regarded as inappropriate to seek to value one life more than another, a result likely to flow from giving weight to the impact of that death on other persons including family members. A leading authority in this connection is R v Previtera (1977) 92 A Crim R 76 but the principle well antedates that case. The Crown has submitted that the statutory provisions to which I have referred have effected a change to the law in this regard.

171 That such a change may have occurred has been recognised in a number of decisions including Attorney General’s Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 (2002) 137 A Crim R 196 at [57] and R v Berg [2004] NSWCCA 300. On the other hand, there is a deal to be said for the view that, had Parliament intended to make the radical change in the law, particularly in cases involving death, for which the Crown contends, one would have expected it to say so much more clearly than by the general terms it has used. More recently, as Sully J has pointed out, in R v Tzanis [2005] NSWCCA 274 a five Judge bench chose not to decide the issue saying, “it is not appropriate to do so unless the issue squarely arises”.

172 I have reached the conclusion for other reasons that the Crown appeal should be allowed and a heavier sentence imposed. In the circumstances of this case, where ultimately considerations of totality and the restrictions applying when this Court allows a Crown appeal will limit the sentence to be imposed, it does not seem to me that I need to decide the issue of the impact of the legislative changes on which the Crown relies. Accordingly, I shall follow the remarks of the Court just quoted.

The approach to the standard non-parole period.

173 Levine J seems to have summarised his approach to the standard non-parole period in paragraph 54 of his remarks on sentence. His Honour said:-

“The upshot of this is that I will treat the standard non-parole period as a guide and as I propose partially to cumulate the sentences in relation to those offences to attain the requisite totality, the non-parole period will in the end be less than the standard non-parole period.”

174 There can be no objection to a judge departing from a standard non-parole period if circumstances warrant it. Sully J has referred to a number of considerations which may be taken into account in this connection. Included in these is the principle of totality and the passage quoted seems to indicate that this was his Honour’s reason for imposing a sentence of 24 years including a non-parole period of 18 years rather than adhering to, or increasing the standard non-parole period. Certainly, it strikes me as unusual for his Honour to reflect the principle of totality by a minor departure from the standard non-parole period and also by the extent of concurrency of sentence he embraced but in light of the terms of paragraph 54 which I have quoted, it is not possible to conclude there was error in his Honour’s approach to the standard non-parole period. I would not uphold this complaint.

The Failure to Accumulate Sufficiently in the case of F.D.

175 The sentences imposed were:-

(i) For the offence or robbery whilst armed with an offensive weapon, imprisonment for a fixed term of 6 years to commence on 23 March 2003 and to expire of 22 March 2009;

(ii) For the offence of malicious wounding with intent to do grievous bodily harm, imprisonment for 12 years, including a non-parole period of 9 years, both such periods to commence on 23 March 2003; and

(iii) For the offence of murder, to imprisonment for 24 years, including a non-parole period of 18 years both such periods to commence on 23 March 2005.

176 Thus the sentences on the first of these offences was wholly concurrent with that imposed on the second, and the degree of accumulation of both of these on the sentence imposed for murder was only 2 years.

177 The latter sentence seems, as both Sully J and I have said, to itself have been reduced on the grounds of totality. If so, it is hard to believe that that reduction was less than 2 years and if that be right, in practical terms F.D. has not been punished at all for the first 2 offences.

178 But whether this be correct or not, the degree of concurrence which Levine J’s sentences involved cannot be justified. F.D. committed three discrete and serious offences against 3 different victims. The seriousness of the offences is recognised not only by the maximum penalties prescribed and which Sully J has identified but, in the case of the malicious wounding and murder charges by the standard non-parole periods of 7 years and 20 years respectively for offences falling within the mid-range of objective seriousness – as F.D.’s did or exceeded - and also by the length of the individual sentences imposed by Levine J.

179 Subject to one matter, and apart from the specific complaints which Sully J has rejected nothing, certainly nothing persuasive, was put in F.D.’s appeal to suggest that the individual sentences imposed were excessive. If they were not, the disparity between the sum of them and the effective sentence imposed itself provides a strong argument that too much weight must have been given to considerations of totality.

180 The one matter to which I refer is this. I would not have characterised the murder offence as of, or exceeding the middle of the range of objective seriousness. I appreciate that, to a layman, or more particularly to the family of a murder victim, judgments or measurements of this nature are difficult or impossible to understand. However it is a task which the legislation requires that judges undertake and, given the range of offences that come under consideration in the courts, some murders clearly are worse than others. Bad examples include cases where, in addition to the death, there is gratuitous cruelty or a motive of killing a police officer because he is such.

181 Among factors to which regard is commonly had in making judgments in this area are the intent with which an offence is committed and whether it is premeditated. Although there may be exceptions, the presence of premeditation is calculated to aggravate an offence as is an intent to kill rather than merely to do grievous bodily harm. In this case, there was no premeditation of the actions that constituted the offence of murder and no finding that F.D. had a n intent to kill. In that situation, I would disagree with Levine J that the offence was above the mid-range in objective seriousness. Given the number of wounds however, I would not place it significantly below.

182 Consideration of the individual offences also leads me to the conclusion that argument that too much weight must have been given to considerations of totality. At the time he embarked on the robbery F.D. was on a bond for an offence of obtaining money by deception. He had obviously learnt nothing from his previous experience of the courts. The robbery was premeditated and, in response to an advertisement for a $15,000 diamond engagement ring, was clearly directed to obtaining property of substantial value. A sentence involving a fixed (or non-parole) period of 6 years in respect of this offence, while heavy, was clearly within the legitimate exercise of Levine J’s sentencing discretion.

183 Levine J was unwilling to find that F.D. had possession of the knife before finding it, fortuitously, in the back yard where the robbery occurred. However the acceptance of this alternative explanation combined with his Honour’s finding that F.D. then presented it at Mr Taylor while repeating an earlier demand by J.D. for the ring still demonstrates deliberate and serious criminality not just in the presentation but, in the circumstances, also in the earlier action of picking up the knife. Then he struck Mr Taylor with the knife, through the chest and into a lung.

184 F.D. was perhaps fortunate that Mr Taylor did not also die but be that as it may, F.D.’s conduct is so alien to that required in a civilised society that it required a substantial sentence and a significant increase on the penalty merited by the robbery offence.

185 After the actions to which I have referred, F.D. ran off down a laneway. Seeing there his brother apprehended by Simon Taylor, F.D set upon the latter who sustained 4 stab wounds, one a very deep cut to nose, one to the thigh and 2 penetrating the heart, fatally. This third offence required a very substantial increase in the punishment appropriate for the earlier two.

186 And if one looks at the offences in reverse order, again it seems to me that one cannot justify the overall sentence imposed. If a penalty of 24 years with a non-parole period of 18 years was appropriate for Simon Taylor’s murder – and no one has seriously suggested it was too high – adding 2 years to these periods for the premeditated robbery in breach of F.D.’s conditional liberty and the malicious wounding of Mr Taylor gives little weight to some of the recognised purposes of punishment.

187 Among those purposes are general deterrence, specific deterrence and retribution. However optimistic an assessment of F.D.’s prospects of rehabilitation and reform may have been – and while Levine J seems to have thought that F.D. was unlikely to re-offend and had good prospects of rehabilitation, his Honour rejected suggestions that F.D. was contrite - however much one might say that specific deterrence requires little extra punishment, the 2 year increase in the period of imprisonment does not come close to recognising that an attack on 2 people, both of whom are liable to be killed, is much worse than an attack on simply one. It is important that the message from the courts not be that those who commit one serious offence can commit others almost for free. And while I have no difficulty in accepting that what has happened to F.D. is calculated to act as a deterrent to anyone tempted to commit a robbery with a knife, there remains the fact that that robbery also merits some punishment.

188 Retribution – the community’s entitlement to feel that justice has been done – also to my mind demands that the sentence for the attack on Mr Taylor be considerably more than an effective 2 years.

189 In R v Wilson [2005] NSWCCA 219, Simpson J, with whom Barr and Latham JJ agreed said, in relation to a challenge to sentences which were partly cumulative, at [38]:-

In my opinion, it was not only well open to his Honour to accumulate one sentence upon the other two; I doubt that would have been correct not to do so. There were, in fact, three separate offences committed, even though all were committed as part of the same event. In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in s3A of the Sentencing Procedure Act. The first purpose so specified is ensuring adequate punishment for crime; others here relevant include crime prevention by deterrence, denunciation, making an offender accountable, and recognition of the harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims. I would reject this ground of the application.

190 I find it impossible to conclude otherwise than that Levine J departed from this approach.

191 In light of the findings of Levine J, (qualified by my own assessment of the seriousness of the murder) the minimum effective non-parole period which should have been imposed was of 24 years. The reduction from 33 years being the sum of non-parole periods of 9 years, 6 years and 18 years is sufficient to cope with the demands of the principle of totality. (In that last sentence I have taken the 18 years non-parole period Levine J imposed for the murder notwithstanding my view that that period itself reflects a reduction for totality.) I would make the total sentence one of 30 years. I see no reason why F.D. would require more than 5 years on parole.

192 In arriving at the figures I have, I am not unconscious of the length of the period I have suggested. Twenty-four years in gaol is a long, long time. However, a comparison of the standard non-parole periods for murder and malicious wounding with the sentences previously imposed for these offences indicates that the legislature in enacting the standard non-parole periods has demonstrated an intention that sentences for these offences should increase beyond those hitherto prevailing.

193 Against the possibility that this Court should re-sentence, there was placed before the Court psychiatric and other evidence as to F.D.’s present condition and time in custody. A deal of the psychiatric evidence relates to circumstances existing at the time he was sentenced by Levine J but, be that as it may, I do not regard any of the additional evidence as making any material difference to the result of the Crown appeal.

194 Given the lengths of the sentences imposed, and so long as the result is proper, it is immaterial how the overall sentence is structured. However, I would effect the result I think appropriate by leaving the sentence for robbery with an offensive weapon as is: I would leave the duration of the periods in the sentence for malicious wounding as Levine J ordered, but alter the commencing date to 23 March 2005 and make consequent amendments to other dates: I would reduce on grounds of totality the total term of the sentence for murder to 23 years, leave the non-parole period at 18 years but direct that both periods commence on 23 March 2009.

The Failure to Accumulate At all in the case of J.D.

195 The sentences imposed on J.D. were:-

(i) For the offence or robbery whilst armed with an offensive weapon, imprisonment for a non-parole period of 3 years to commence on 25 March 2003 and to expire on 24 March 2006 with a balance of term of 1 year and 1 month to commence on 25 March 2006;

(ii) For the offence of manslaughter, imprisonment for a non-parole period of 3 years to commence on 25 March 2003 and to expire on 24 March 2006, with a balance of term of 2 years and 3 months to commence on 25 March 2006.

196 In arriving at the individual terms Levine J adopted as starting points, terms of, respectively, 5 years and 6 months and 7 years. J.D. was 17 at the time of offending and had no prior record. He had an impressive subjective case and Levine J found special circumstances which led him to increase the parole portion of J.D.’s sentence at the expense of the non-parole portion. The Crown did not criticise the matters referred to in this paragraph and I see no ground for doing so.

197 His Honour then applied a discount of 25% from these periods.

198 Courts have adopted the practice of allowing discounts for pleas of guilty because of the practical benefits such pleas afford to the administration of justice in the particular case and to encourage pleas in other cases. It is the fact that, with the resources presently available the administration of justice would grind to a halt if all offenders pleaded not guilty.

199 Although J.D. offered to plead guilty to manslaughter, when the Crown refused to accept this plea in full satisfaction of the charge of murder he did not. He still could have done so, leaving a much narrower issue for the jury than, by pleading not guilty, he chose to run. Why in this situation, he should receive the discount he would have received by pleading guilty, I do not understand although I accept that there are decisions of this Court authorising that approach.

200 However, even accepting the authority of those decisions, I am completely unable to understand why he should receive a discount on the robbery charge because he offered to plead guilty to manslaughter but neither pleaded nor offered to plead guilty to robbery because, in the course of negotiations with the Crown, the robbery charge was overlooked. The rationale for giving a discount for a plea simply does not exist.

201 But even if discounts were appropriate, I agree with Sully J that discounts of 25% were excessive. In R v Thomson and Houlton (2000) 49 NSWLR 383 where, following previous authority, this Court put its imprimatur on the practice of discounts, it was indicated that an appropriate discount for pleas entered late should normally be of the order of 10%. Nothing has been put before this Court to indicate that any discount should have exceeded a figure of this order.

202 However, the main criticism by the Crown criticism of the sentences imposed on J.D. was the fact that Levine J ordered that both sentences commence on 23 March 2003 with the result that the sentence for robbery was fully absorbed in the sentence for manslaughter and this notwithstanding that they were 2 entirely different crimes committed against 2 different victims.

203 The passage I have quoted from R v Wilson makes it clear that such an approach is erroneous. The result in fact is that the sentence is manifestly inadequate.

204 Against the possibility that this Court should reach that conclusion a number of affidavits were read to the Court. As with the case of F.D., I do not regard them as making any material difference to the result of this appeal.

205 A proper application of the guideline in R v Thomson and Houlton would lead to a total sentence for J.D.’s robbery offence of a little under 5 years. The finding of special circumstances would argue for this being broken up into something like 3 years non-parole and 2 years balance of term. The adoption of a similar approach to the sentence for manslaughter would result in a sentence of something of approximately 6 years. The cumulation which should occur with some of the sentence for robbery, and the finding of special circumstances complicates the division of this 6 year figure.

206 The practice when this Court re-sentences in Crown appeal is to impose a the least sentence which should have been imposed at first instance. Given J.D.’s youth, the fact he had no prior convictions, the fact that he was not the author of the knife blows which resulted in Simon Taylor’s death, and he did have little time to reflect on what was found to be his brother’s first production of the knife, the view could well be taken that a 1½ year increase on the non-parole portion of the manslaughter sentence is appropriate. That is what I would propose this Court do.

207 Accordingly, I would impose the following sentences on J.D.:-

(i) For the offence or robbery whilst armed with an offensive weapon, imprisonment for a non-parole period of 3 years to commence on 25 March 2003 and to expire on 24 March 2006 with a balance of term of 2 years to commence on 25 March 2006;

(ii) For the offence of manslaughter, imprisonment for a non-parole period of 3 years and 6 months to commence on 25 September 2004 and to expire on 24 March 2008, with a balance of term of 2 years and 6 months to commence on 25 March 2008.

208 A decision in this appeal in accordance with the orders I propose would involve some further but ancillary orders. However, as mine is a minority view, I need not detail these.

209 HALL J: I agree with Sully J.

**********

Citations

R v FD and JD [2006] NSWCCA 31

Most Recent Citation

Cases Citing This Decision

7

Application by FD pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 2) [2017] NSWSC 869

Application of FD [2015] NSWSC 285

R v Matthew Cole (a pseudonym) [2022] NSWDC 238

Cases Cited

13

Statutory Material Cited

3

SKA v The Queen [2011] HCA 13

R v Simpson [2001] NSWCCA 534

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CITATION:	Regina v F.D; Regina v F.D; Regina v J.D [2006] NSWCCA 31
HEARING DATE(S):	17 August 200
JUDGMENT DATE:	21 February 2006
JUDGMENT OF:	Sully J at 1; Hulme J at 147; Hall J at 209
DECISION:	In the case of F.D: appeal against conviction dismissed; leave granted to appeal against sentence; appeal against sentence dismissed; In the cases of the Crown appeals against sentence, each such Crown appeal dismissed.
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW)
CASES CITED:	M v The Queen (1984) 181 CLR 487 Reg v Simpson (2001) 53 NSWLR 704 Reg v Allpass (1993) 72 A Crim R 561 Reg v Bermingham (No. 2) (1997) 96 A Crim R 545 The Queen v Glennon (1992) 173 CLR 592 Reg v Previtera (1997) 94 A Crim R 76 Reg v Tzanis [2005] NSWCCA 274 Reg v Reid [2005] NSWCCA 309 Veen v The Queen (No. 2) (1988) 164 CLR 465 Pearce v The Queen (1998) 194 CLR 610 R v Richards [1981] 2 NSWLR 464 R v Readman (1990) 47 A Crim R 181 R v Way (2004) 60 NSWLR 168 R v Previtera (1977) 92 A Crim R 76 Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (2002) 137 A Crim R 196 at [57] R v Berg [2004] NSWCCA 300 R v Tzanis [2005] NSWCCA 274 R v Wilson [2005] NSWCCA 219 R v Thomson and Houlton (2000) 49 NSWLR 383
PARTIES:	Regina F.D J.D
FILE NUMBER(S):	CCA 2005/1439; 2005/510; 2005/509
COUNSEL:	G.E. Smith SC/M.L. Woodburne - Crown C. Craigie SC - J.D R. Bonnici - F.D
SOLICITORS:	S. Kavanagh - Crown Murphy's Lawyers - J.D S. O'Connor - F.D
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2004/45 2004/11
LOWER COURT JUDICIAL OFFICER:	Levine J