R v Hathaway

[2005] NSWCCA 368

CITATION:	Regina v HATHAWAY [2005] NSWCCA 368 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20 October 2005
JUDGMENT DATE:	20 October 2005
JUDGMENT OF:	Spigelman CJ at 1; McClellan CJ at CL at 8; Hall J at 60
DECISION:	Appeal dismissed

CATCHWORDS:	CRIMINAL LAW - appeal against sentence - break and enter in circumstances of aggravation - whether error in taking into account the applicant's prior convictions as an aggravating factor - whether error in failing to have regard to delay between the commission of the offence and the applicant's arrest - whether error in the application of the discount for the applicant's plea of guilty - whether sentence is manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Camilleri’s Stock Feeds Pty Ltd v EPA unreported, NSWCCA, 17 December 1993 Mill v The Queen (1988) 166 CLR 59 R v Bellamy [2005] NSWCCA 329 R v Berg [2004] NSWCCA 300 R v Blair [2005] NSWCCA 78 R v Gallagher (1981) 23 NSWLR 220 R v Johnson [2004] NSWCCA 76 R v Markarian (2005) 79 ALJR 1048 R v McQueeney [2005] NSWCCA 168 R v Mulholland (1990) 1 NTLR 1 R v Niass [2004] NSWCCA 149 R v Ponfield (1999) 48 NSWLR 327 R v Scott [2003] NSWCCA 286 R v Shankley [2003] NSWCCA 253 R v Shorten [2005] NSWCCA 106 R v Smith unreported, NSWCCA, 16 December 1993 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Todd [1982] 2 NSWLR 517 R v Webster [2005] NSWCCA 110 R v Wickham [2004] NSWCCA 193 Ryan v The Queen (2001) 206 CLR 267 Veen v The Queen (No 2) (1988) 164 CLR 465
PARTIES:	The Crown Ronald Leslie Hathaway (Appl)
FILE NUMBER(S):	CCA 2005/1100
COUNSEL:	D Arnott SC (Crown) H Dhanji (Appl)
SOLICITORS:	Solicitor for Public Prosecutions Legal Aid Commission of NSW

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/71/0063
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ

2005/1100

SPIGELMAN CJ
McCLELLAN CJ at CL
HALL J

THURSDAY 20 OCTOBER 2005

REGINA v Ronald Leslie HATHAWAY

Judgment

1 SPIGELMAN CJ: I agree and I add the following.

2 This is not an appropriate case for this Court to review the consistent recent line of authority on the relationship between s 21A(2)(d) and s 21A(4) of the Crimes (Sentencing Procedure) Act 1999. If it is to be reviewed by reason of the submission that the Crown has advanced in this case that there is an inconsistency with earlier authority, particularly with the passage in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478, then that is a matter, in light of the consistency of recent cases, that needs to be determined by a Bench of five.

3 On the issue of the discount for the plea, the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 indicates a range but it does not indicate that it is appropriate to treat the top of that range of 25 per cent as an almost automatic entitlement for someone who pleads at an early stage. The matter remains in the discretion of the sentencing judge.

4 The fact that the sentencing judge in this case chose to express his intention with respect to the utilitarian value of the plea as entitling the applicant to the “maximum benefit” is not an indication that what his Honour had in mind was 25 per cent for that factor alone.

5 Finally, with respect to the ground of appeal that the sentence was manifestly excessive, the most important circumstance in this case that the sentencing judge duly emphasised was the fact that during the period of delay the applicant did take certain steps which indicated good prospects of rehabilitation.

6 I do not accept that his Honour failed to give appropriate weight to that consideration. The circumstances of this offence were such that, but for that evidence, the applicant would undoubtedly have been sentenced to a significantly longer term of imprisonment. He received considerable benefit from the degree of rehabilitation that he had shown by changing his ways for a period of time and establishing a proper relationship with a young woman, whose grandparents took him into their house. Those circumstances were entitled to significant weight. But for that I have no doubt his Honour would have imposed a significantly higher sentence.

7 I agree with the order proposed by Justice McClellan.

8 McCLELLAN CJ at CL: The applicant seeks leave to appeal against a sentence imposed on him at Albury District Court on 1 September 2004, when he pleaded guilty to one count of break and enter in circumstances of special aggravation (malicious wounding) contrary to s 112(3) of the Crimes Act 1900. That offence attracts a maximum sentence of twenty-five years imprisonment. The sentencing judge imposed a sentence upon the applicant of six years and nine months with a non-parole period of five years.

The facts

9 His Honour found that the offence occurred at approximately 8 pm on 1 August 2002 when a witness noticed someone acting suspiciously around the Administration Block at Hay Public School. The witness contacted the School Principal, Mr Brett Neil, and informed him of the suspicious activity. Mr Neil attended the school to investigate. He walked around the buildings and noticed that the entry to the Administration Block was open and had apparently been forced. He called out asking if there was anyone there. He then entered the building.

10 Mr Neil turned on the light in the photocopy room and proceeded down the hallway. He noticed that the front office door was slightly open. He once again called out, asking if anyone was there. As he was opening the front office door with his foot the applicant grabbed Mr Neil, pulled him into the office and threw him on the floor. There the applicant hit Mr Neil over the head and the back with an iron tyre lever, at least four times. Blood began streaming down Mr Neil’s head from his injuries. At that stage Mr Neil feared that he would be killed.

11 Mr Neil was able to get to his feet and push the applicant backwards against a computer bench. There was then a short struggle before the applicant once again pushed Mr Neil to the floor and hit him a number of times. Mr Neil said to the applicant “Just leave.” The applicant fled the building by foot. Mr Neil went to a nearby hotel seeking help. He was taken by ambulance to hospital. By the time the police arrived at the scene the applicant had fled.

12 Mr Neil suffered a number of injuries including lacerations to his head, three of which required stitching, together with bruising to his chest and his back. There was also a grazing on his back.

13 Although the offence occurred on 1 August 2002 the applicant was not arrested until 8 June 2004 when he was charged. He was sentenced on 1 September 2004. Four days after the offence occurred the applicant appeared before the Hay Local Court and was imprisoned for three months for a number of unrelated offences of larceny. At the same time he was placed on a bond for previous offences of assault occasioning actual bodily harm.

14 There are four grounds of appeal.

Grounds of appeal

1. The learned sentencing judge erred in taking into account the applicant’s prior convictions as an aggravating factor.

2. The learned sentencing judge erred in failing to have regard to the delay between the commission of the offence and the applicant’s arrest.

3. The learned sentencing judge erred in his application of the discount for the applicant’s plea of guilty.

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

The sentencing judge’s remarks

15 In his remarks on sentence the sentencing judge provided a summary statement of the relevant facts. His Honour then turned to consider matters relevant to penalty. His Honour introduced his discussion by observing that the “offence is particularly serious.” This was not an observation with respect to the particular offence of the applicant but a recognition that offences of the type he committed are viewed seriously by the community which has been reflected in the penalty provided by the statute. His Honour then said:

“Short of murder and some other limited offences it carries the highest maximum penalty allowed under the law. There is good reason for that. This is precisely the sort of offence that strikes directly at the community. The circumstances of this offence demonstrate in my view, a serious example. I have already indicated that in my view those circumstances place this offence above the median range for such offences. I have reached that view for a number of reasons.
Firstly this offender has a serious criminal record for committing offences of assault, assault occasioning actual bodily harm and as well as breaking and entering property. He has been committing such offences since he was a child. He has been given every opportunity in the past to reform but he has continued to commit offences and they have as demonstrated by this offence escalated in seriousness.
The place where the offender chose to break in was a school. Public infrastructure such as a school is particularly vulnerable to break in. It costs the community a great deal of money to both protect schools from break in and when they do take place to replace the items that have been taken. The offender said through his counsel that he was seeking money. Anyone would know that it was very unlikely that you would find a large amount of money in a school. What might be there are things such as computers and other equipment that can be stolen and sold. That sort of equipment is often purchased through the hard work of the parents of the school. They are not always automatically provided by the Department of Education. But even if the equipment is so provided, the stealing of that equipment can have a devastating effect on a school and the school community.
The person wounded in this case was the headmaster of the school. As in many small country schools the headmaster lives nearby. He carries out many roles. No doubt he has a teaching role. He also has an administrative role. Unfortunately he also has the role of caretaker of the school, and this is what he was doing in the school grounds on this evening. He was called to investigate a potential break in. Frankly he is to be commended for his work. He no doubt works many more hours than he is nominally paid for. Schools such as this one at Hay could not operate without the dedication of teachers such as Mr Neil. The last thing he deserved was to be assaulted in the manner that he was on this occasion. He was there protecting community property.

16 His Honour commented upon the nature of the assault in the following terms:

“The assault itself was vicious, it was sustained when it could have been broken off. It caused serious injury and it is only fortunate that it has not caused more serious injury. Hitting anyone over the head repeatedly with an iron bar is so obviously dangerous that it beggars belief that it is an act that could be undertaken.
The victim was himself both unprepared and unarmed. The offender could simply have left. I accept that he was probably confused by having taken some drugs and alcohol on this day, but even so muddled he should have been able to leave without assaulting the victims. He chose not to do that. The offender was on bail at the time of the offence. This is another serious aggravating feature of the offence. His disobedience to lawful restraints is a factor that the court cannot ignore.”

17 His Honour then considered the personal circumstances of the applicant and concluded that there was little that could be said on his behalf. The applicant left school at sixteen and was aged twenty at the time of the offence. There was nothing exceptional in his upbringing and he had obtained some employment since leaving school. The applicant commenced using cannabis when he was young. His pattern of use increased to a daily use of between a quarter and a half an ounce a day. He was a casual abuser of amphetamines until about eighteen when he more consistently used that drug. He ceased using amphetamine before he was sentenced. He reported to his counsel that he used and abused Serepax and Rohypnol.

18 Although it was submitted to his Honour that the crime was committed on the spur of the moment his Honour was, in my opinion rightly, sceptical of this submission. His Honour observed that the applicant had gone to the school armed with a tyre lever which makes it difficult to accept that the crime was not accompanied by some planning.

19 The applicant expressed sorrow for the offence to the victim in court and his Honour said that he had “no reason to believe that such an expression was not genuine.”

20 His Honour also received evidence from Mr Adrian Douglas who indicated that he had recently welcomed the applicant, who he observed to be a law abiding citizen, into his home. The applicant apparently has a relationship with Mr Douglas’ daughter. Mr Douglas gave evidence that the applicant is a social drinker and at the time of his being sentenced did not take cannabis. In the two year period since he committed the offence his Honour observed that the applicant had committed no further substantive offences. He had been convicted of breaching a bond and was at the time of sentence serving a four month term in relation to that matter.

21 His Honour observed that in sentencing the applicant he was required to balance a number of considerations. There was a need for public deterrence but his Honour recognised that in the applicant’s case there may be prospects of rehabilitation, particularly having regard to the relationship that the applicant has established with the family of Mr Douglas. His Honour observed that that relationship appeared to have put an end, at least for the moment, to the applicant’s commission of crimes. Notwithstanding the need to have regard to the prospects of the applicant being rehabilitated his Honour concluded that the greater public interest in the present matter lay in sentence which met the public interest in general deterrence.

22 His Honour noted that the applicant had pleaded guilty at the first reasonable opportunity and, accordingly, was “deserving of the maximum benefit by reason of the utilitarian value of his plea.” His Honour also observed that he had shown contrition. His Honour concluded that “he should be given a discount of twenty-five percent from the sentence that might otherwise have been imposed.” His Honour did not find special circumstances. His Honour noted that the applicant had voluntarily entered into protective custody and would serve some part of his sentence in that manner. His Honour concluded that this would make his sentence more difficult.

The applicant’s criminal history

23 As his Honour observed the applicant has a significant criminal history. Of particular relevance to the present matter are convictions when a child for break, enter and steal, larceny, assault occasioning actual bodily harm. As an adult he has two convictions for assault occasioning actual bodily harm, possession of an unauthorised firearm and being armed with intent to commit an indictable offence. He also has convictions as an adult for larceny and various drug and driving offences.

Ground One – The learned sentencing judge erred in taking into account the applicant’s prior convictions as an aggravating factor

24 This ground of appeal asserts that his Honour regarded the applicant’s criminal record as aggravating or contributing to the seriousness of the offence and was in error in doing so.

25 The remarks in respect of which complaint is made are set out in the first two paragraphs of the extract from the remarks set out at [8] above.

26 The sentencing judge was required to sentence the applicant in accordance with s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A(1) requires that when “determining the appropriate sentence” the court must, inter alia, have regard to the “aggravating factors” referred to in subsection (2), “the mitigating factors” referred to in subsection (3) and “any other objective or subjective factor that affects the relative seriousness of the offence.”

27 The catalogue of “aggravating factors” in subs (2) relevantly include

(d) the offender has a record of previous convictions,

28 Subsection (4) provides a qualification to subsection (1) and states:

“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.”

29 Section 21A has been considered by this Court on many occasions. In R v Berg [2004] NSWCCA 300 Spigelman CJ noted that the introductory words of s 21A indicate that the section is concerned with the matters which the Court is to take into account “in determining the appropriate sentence.” This may include consideration of the offender’s prior convictions. However, this may not be because the offender’s record makes the offence more serious.

30 In R v Wickham [2004] NSWCCA 193 which was concerned, inter alia, with s 21A(2)(d) Howie J said that “on its face the provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious.” However, because in his Honour’s opinion the common law rule “is that a prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and protection of the community,” section 21A(4) would confine the impact of the subsection. This approach is consistent with R v Shankley [2003] NSWCCA 253; R v Johnson [2004] NSWCCA 76; R v Berg [2004] NSWCCA 300; R v Blair [2005] NSWCCA 78; R v McQueeney [2005] NSWCCA 168; R v Bellamy [2005] NSWCCA 329.

31 In Veen v The Queen (No 2) (1988) 164 CLR 465 the High Court considered the correct approach when sentencing an offender with previous convictions. Veen was, of course, decided before s 21A was enacted. In the well known passage in the joint judgment of Mason CJ and Brennan, Dawson and Toohey JJ at p 477 their Honours provide a statement of the principles relevant to the sentencing of an offender with an antecedent criminal history.

32 Their Honours identify the following elements:

1. Antecedent criminal history of an offender is a relevant consideration in determining the sentence to be imposed.

2. Although the antecedent criminal history is relevant the penalty imposed must remain proportionate to the gravity of the instant offence.

3. Antecedent criminal history is relevant to whether the offence should be characterised as aberrant behaviour by the offender or whether it is part of a continuing attitude of disobedience of the law which may, having regard to the need for retribution, deterrence and protection of society, indicate a more severe penalty is warranted.

4. Antecedent criminal conduct may reveal the moral culpability of the offender.

5. Antecedent conduct is not only relevant to a claim for leniency (however this statement may not be consistent with Gummow J’s comment in Ryan v The Queen (2001) 206 CLR 267 at [67]).

33 It has been suggested, and the Crown submits in the present appeal, that elements three and four should be understood as acknowledging a role for the offender’s record when determining the objective circumstances of the offence (see Hunt D and Donnelly H, “The Objective Circumstances of the Case and Prior Record” (1995) 7 Judicial Officers Bulletin 57 where reference is made to R v Smith unreported, NSWCCA, 16 December 1993). In Smith Allen J (with whom Hunt CJ at CL and Newman J agreed) stated that an offender’s record is material “to the assessment of the objective gravity of what he did” at 8-9; R v Thorp, unreported, NSWCCA, 16 December 1993 at 11; Camilleri’s Stock Feeds Pty Ltd v EPA unreported, NSWCCA, 17 December 1993, at 32; consideration of the matter was also given in R v Mulholland (1990) 1 NTLR 1 and there is a statement to similar effect in the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 at [48].

34 Although the matter has been raised for consideration I doubt whether a resolution of the debate will be of great significance in the practical task of sentencing individual offenders. Furthermore, I doubt whether the majority in Veen concerned themselves with the issue. As the Chief Justice emphasised in Berg, s 21A provides a collection of the matters which a court must take into account “when determining the appropriate sentence.” To the extent, at least, of retribution, personal deterrence and protection of the community an offender’s previous offences are relevant and may legitimately indicate that a more severe sentence should be imposed.

35 In the present case I am satisfied his Honour’s remarks should be understood, as inter alia, concerned with the matters he was required to consider having regard to s 21A of the Act. It is for this reason that his Honour commences by describing the type of offence as particularly serious “it carries the maximum penalty allowed under the law.” His Honour then describes the particular offence as a “serious example” which, I accept is a reference to the objective criminality of the offence. However, his Honour then states that, in his opinion, the circumstances of the offence place it “above the median range for such offences.” To my mind, although not speaking with absolute clarity, his Honour should be understood in this sentence as referring to the range of potential sentences available having regard to all of the circumstances relevant to the offence committed by the applicant. His Honour is expressing his opinion as to where the offence lies in that range.

36 In the following paragraphs his Honour provides the reasons for coming to the conclusion that the offence is “above the median range.” To my mind, the matters to which his Honour refers both inform and explain the introductory paragraph. They include matters which s 21A requires to be considered when determining the appropriate sentence.

37 The first of those reasons is the criminal record of the applicant. His Honour’s discussion of that record, which he correctly describes as “serious”, must be understood as reflecting his Honour’s concern to ensure that the sentence marked out the fact that the applicant was both a repeat offender and that his offences were escalating in seriousness. This is not a conclusion with respect to the objective criminality of the instant offence but a recognition that the sentence imposed for that offence must be sufficient to meet the needs for retribution, personal deterrence and protection of the community.

38 In these circumstances, whatever be the correct view of the operation of s 21A(2)(d), no error has occurred. The only question which arises is whether the sentence which his Honour ultimately imposed was other than appropriate for the particular offence. As I have later explained I am in no doubt that it was.

39 This ground of appeal fails.

Ground Two – The learned sentencing judge erred in failing to have regard to the delay between the commission of the offence and the applicant’s arrest

40 The offence was committed on 1 August 2002. However, the applicant was not arrested until 8 June 2004, almost 2 years later. In these circumstances the applicant says that the delay in ultimate sentencing was a matter which his Honour should have taken into account and called for a reduction in the sentence. The applicant says that his Honour failed to acknowledge the delay when he said:

“It is true that it has taken two years for this matter to come to light. I note of course that the offender did not himself go to the police to volunteer his crime. He gets no credit for the delay in the prosecution of the case, but equally none was sought.”

41 The circumstances in which delay may be relevant when sentencing are well understood (see R v Todd [1982] 2 NSWLR 517 at 519; Mill v The Queen (1988) 166 CLR 59 at 64-66; R v Niass [2004] NSWCCA 149 at [16].

42 There are three relevant matters:

· the suspense or uncertainty in which a person may have been left;

· whether the offender has demonstrated progress towards rehabilitation during the intervening period; and

· a sentence for a stale crime calls for a measure of understanding and flexibility of approach.

43 In the present case there is no explanation for the delay in charging the applicant. However, it is only the suspense or uncertainty which follows the intervention by the authorities, including his arrest, which is relevant. Following his arrest the applicant was sentenced within three months. Accordingly, his Honour was correct to deny a credit for delay: see R v Shorten [2005] NSWCCA 106. Where an offender remains silent hoping that the offences will not be discovered a reduced sentence is for this reason inappropriate: see R v Webster [2005] NSWCCA 110.

44 With respect to the second matter his Honour had regard to the fact that the applicant had not committed any substantive offences during the previous two years and had built up a good relationship with the Douglas family. Accordingly, his Honour did have regard to the progress which the applicant had made towards rehabilitation during the previous two years.

45 As far as the third matter is concerned, in my opinion, the crime for which the applicant was sentenced was far from stale. Although there was a delay in bringing the charge, that delay did not of itself justify any lesser sentence.

46 This ground of appeal fails.

Ground Three – The learned sentencing judge erred in his application of the discount for the applicant’s plea of guilty

47 The applicant pleaded guilty in the Local Court. The sentencing judge said of this aspect of the matter:

“The offender pleaded guilty at the first reasonable opportunity. He is deserving of the maximum benefit by reason of the utilitarian value of his plea. He has also shown contrition. In my view he should be given a discount of twenty-five percent from the sentence that might otherwise have been imposed. Having regard to the seriousness of the offence committed in this case, had this matter gone to trial the offender would have been sentenced to a total term of imprisonment of at least nine years.”

48 The applicant’s submission is that the reference to the maximum benefit of the utilitarian value of the plea must be a reference to the twenty-five percent discount referred to in R v Thomson and Houlton (2000) 49 NSWLR 383 as being a possible maximum discount. Accordingly, as the discount his Honour allowed was confined to twenty-five percent it is submitted that no allowance has been given for contrition.

49 The guideline judgments of this Court have provided significant benefits in bringing consistency to the sentencing process. However, it is important to appreciate that whatever guidance they give to sentencing judges a judge must nevertheless reach a conclusion as to the appropriate sentence in the particular case: see R v Scott [2003] NSWCCA 286. In the present matter, although acknowledging that the applicant had shown contrition, the sentencing judge was on the material before him, entitled to the view that it carried little weight in the overall sentencing process. It is true that the applicant apologised in court to the victim but his record displays a continuing attitude of disobedience to the law.

50 The difficulties in identifying the appropriate discount for a plea of guilty where there is remorse and contrition were discussed by this Court in R v Gallagher (1981) 23 NSWLR 220 at 228 and more recently in R v Markarian (2005) 79 ALJR 1048 at 1057 in the High Court.

51 I can find no error in his Honour concluding that, even with the maximum benefit which his Honour considered appropriate for the plea, a total discount of twenty-five percent should be allowed for the plea and contrition.

Ground Four – The sentence is, in all circumstances, manifestly excessive

52 The applicant acknowledges that the offence was serious. Furthermore, he accepts that it was aggravated by virtue of the fact that he was on bail at the time. However, the applicant’s submmission emphasises that although the attack was severe it was not sustained to the point where the victim suffered any lasting injury. It is also emphasised that at the time the applicant was only twenty and appears to have been affected by drugs. The evidence is that the applicant has made a change for the better in relation to his drug use.

53 The applicant also emphasises that he pleaded guilty and in these circumstances submits that together with his contrition a discount of thirty-five percent should have been allowed instead of the twenty-five percent provided by his Honour. It is submitted that in the circumstances which include delay the sentence imposed was manifestly excessive.

54 In my opinion, this submission must be rejected. The offence was objectively serious being committed on school property and involving a vicious attack upon a defenceless person at night. The applicant, upon being discovered, could have chosen to leave but instead used his tyre lever as a weapon for the purpose of inflicting injury upon the school teacher who has suffered significant and continuing injury including psychological difficulties. This is not surprising having regard to his employment as a school principal which requires him to often work alone in the evening and carry out the duties of supervisor and caretaker for the school.

55 The offence was aggravated by the fact that the applicant reoffended during a period of conditional liberty being on bail for a number of offences with which he had been charged three months earlier including larceny, possessing ammunition without a licence, possessing prohibited plants, possession of equipment for administering prohibited drugs and assault occasioning actual bodily harm.

56 The applicant has a criminal record which required the sentencing judge to pay particular regard to the need for retribution and personal deterrence.

57 Notwithstanding the age of the applicant and his efforts to form stable personal relationships I am satisfied that the sentence which his Honour imposed was within the appropriate range.

Section 6(3) of the Criminal Appeal Act 1912

58 If I had come to the conclusion that his Honour had erred in the sentencing process it would have been necessary to consider the application of s 6(3) of the Criminal Appeal Act 1912. . As will be plain from my conclusions in relation to the fourth ground of appeal, if error had been identified, I am not persuaded that a lesser sentence was warranted in law or should have been imposed.

59 In my opinion, although leave to appeal should be granted, the appeal should be dismissed.

60 HALL J: I also agree with the order proposed by Justice McClellan.

61 SPIGELMAN CJ: The order of the Court is as indicated by his Honour.

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