R v Hayes

[2001] NSWCCA 410

CITATION:	Regina v Hayes [2001] NSWCCA 410
FILE NUMBER(S):	CCA 60223/00
HEARING DATE(S):	Wednesday 10 October 2001
JUDGMENT DATE:	10 October 2001
PARTIES :	Regina v Jon Charles Hayes
JUDGMENT OF:	Grove J at 1; Howie J at 17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0403
LOWER COURT JUDICIAL OFFICER :	Job DCJ

COUNSEL :	P.G. Bergman (Crown) In person (Applicant)
SOLICITORS:	S.E. O'Connor (Crown)
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - SEXUAL OFFENCES - "RANGE" - COMMENT ON PUBLISHED SENTENCE STATISTICS AND THEIR USE
DECISION:	APPEAL DISMISSED

60223/00

GROVE J

HOWIE J

REGINA v JON CHARLES HAYES

JUDGMENT

1 GROVE J: This is an application for leave to appeal against the severity of sentence imposed by Job DCJ in the Gosford District Court.

2 The applicant was born in 1942 and is therefore fifty nine years of age. The offences occurred in a range of time between 1984 and 1985. He was sentenced in respect of eleven counts of a variety of sexual offences against two victims. The precise details of the offences are set out in Job DCJ’s remarks on sentence and there is no need for repetition.

3 The applicant has in response to the Registrar’s direction provided some submissions in writing in relation to this appeal to which I will in due course turn. Upon receipt of written submissions on behalf of the Crown he has supplemented what he had earlier written with some further material.

4 I should observe that the effect of the various sentences imposed in respect of the eleven counts is a total of a six year term with a minimum term of four years.

5 The other matter which should be the subject of initial observation is that although the offences occurred many years before the applicant was dealt with, he was at the time, in respect of a large number of them, either on bail or subject to a recognizance granted to him by the late O’Brien J in respect of a separate offence of a sexual nature.

6 Again, it is not necessary to detail that matter but they are aggravating circumstances, that the applicant was either on bail or upon conditional liberty when the offences were committed.

7 I turn to the matter set out in the applicant’s written submissions.

8 I should say at the outset that the submissions display a lack of appreciation of the nature of the jurisdiction of this Court. The applicant has in moving terms sought that the Court be merciful. This Court is not vested with jurisdiction to impose original sentence. This is what is described as a court of error and not a court of review. It is necessary for there to be demonstrated error in the proceedings at first instance before the jurisdiction of this Court is enlivened. In short, it is not available to judges of this Court, in the event that they differed from the view expressed in a court below, simply to impose whatever sentence attracted them.

9 I turn to some of the specific matters, however, which the applicant has raised. He indicated that he pleaded guilty and in so doing avoided the complainants having to undergo the trauma of giving evidence. That is undoubtedly so and in his remarks on sentence Job DCJ twice referred to that matter.

10 He also referred to the circumstance that there was utilitarian value in the applicant’s plea of guilty. His Honour did not specifically quantify the amount of discount which he gave but he clearly did take it into account and although encouraged by recent authority to specify the amount of any such discount it does not manifest error to omit to do so.

11 The applicant also refers to his physical condition and certain illnesses which he suffers. These again were the subject of specific acknowledgment in the Court below.

12 The applicant in the supplementary material has joined issue with the Crown submission that the offences were violent in their nature. The Crown made that submission obviously in response to the applicant’s assertion that he was not or had never been a violent or physically abusive person. The applicant’s, it appears to me, understanding of the word violent is only in the sense of thuggery. The violation of young children in a sexual manner is violence indeed and there is no real cause to limit the meaning of the word in the fashion which the applicant apparently does.

13 Can I turn finally to a matter which the applicant raised in these terms:

“That the sentence is within the range but on the high side of the range.”

14 The reason I specifically advert to that matter is that there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the Judicial Commission. Such statistics were apparently available to the applicant and indeed have been attached to Crown submissions.

15 The upper limit of sentence is in fact the maximum set by parliament. If the upper limit of the statistical range is treated as reserved for the worst case or the worst offenders then persistent selection of sentences for others within that range will inevitably reduce the upper figure. This is not a matter of jurisprudence but a matter of arithmetic. I don’t regard it as appropriate to elaborate when this Court is constituted by only two judges, but the misconception is so frequently bruited about that I do not refrain from comment and I mention it in response to the express submission which the applicant has made.

16 None of his submissions can be sustained and in those circumstances I would propose that the application for leave to appeal be granted but the appeal dismissed.

17 HOWIE J: I agree with the reasons of the presiding judge and particularly support his comments in relation to the use of judicial statistics.

18 GROVE J: The orders of the Court therefore will be as I have proposed.