R v Hoskins

[2004] NSWCCA 236

CITATION:

REGINA v LEONARD WILLIAM HOSKINS [2004] NSWCCA 236

HEARING DATE(S):

21 June 2004

JUDGMENT DATE:

14 July 2004

JUDGMENT OF:

Giles JA at 1; Levine J at 2; Hulme J at 70

DECISION:

1. Appeal allowed.; 2. Sentences imposed in the District Court on 14 November 2003 are set aside.; 3. The respondent is sentenced to imprisonment for 6 years to date from 14 November 2004 which sentence is to expire on 13 November 2010. A non-parole period of 4 years is fixed to date from 14 November 2004 and to expire on 13 November 2008.

CATCHWORDS:

Crown appeal - manifest inadequacy - Crimes Act 1900 s33 - malicious wounding with intent - Crimes (Sentencing Procedure) Act 1999 s56(3A)- assault by convicted inmate - partial concurrence - discount for plea - discount for assistance to authorities constituted by partial admissions only

LEGISLATION CITED:

Crimes Act 1900 s33
Crimes (Sentencing Procedure) Act 1999 s23, s56
Criminal Appeal Act 1912 s5D

CASES CITED:

Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Dinsdale v The Queen (2000) 202 CLR 321
Everett v The Queen (1994) 181 CLR 295
Regina v Armstrong [2000] NSWCCA 14
Regina v Bavadra (2000) 115 A Crim R 152
Regina v Cartwright (1989) 17 NSWLR 243
Regina v Dodd (1991) 57 A Crim R 349
Regina v Ellis (1986) 6 NSWLR 603
Regina v Fyffe [2002] NSWSC 751
Regina v PPB [1999] NSWCCA 360
Regina v Reynolds [2004] NSWCCA 51
Regina v Thomson & Houlton (2000) 49 NSWLR 383

PARTIES :

REGINA
(Appellant)

v

LEONARD WILLIAM HOSKINS
(Respondent)

FILE NUMBER(S):

CCA 60535/04

COUNSEL:

P Power SC
(Appellant)

A P Cook
(Respondent)

SOLICITORS:

S Kavanagh
(Appellant)

S O'Connor
(Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/51/0065
LOWER COURT JUDICIAL OFFICER :	Ellis DCJ

60535 OF 2004

GILES JA
LEVINE J
HULME J

WEDNESDAY 14 JULY 2004

REGINA v LEONARD WILLIAM HOSKINS

Judgment

1 GILES JA: I have had the advantage of reading the reasons of Levine J in draft. I agree with them, save that on re-sentencing I would totally cumulate the sentence for the s33 offence upon the sentence imposed by Freeman DCJ. The offence was serious, and recognition of deterrence of which Barr J spoke in R v Fyffe [2002] NSWSC 751 at [33] in my opinion requires no less even upon re-sentencing on a Crown appeal. Since Hulme J agrees with Levine J, I will not elaborate.

2 LEVINE J: Pursuant to s5D of the Criminal Appeal Act 1912 the Director of Public Prosecutions appeals against the sentence imposed by his Honour Judge Ellis on the Respondent at the Grafton District Court on the 14 November 2003.

3 On 7 July 2003 at Lismore District Court, the respondent pleaded guilty on arraignment before her Honour Judge Morgan to a charge that “On 12 December 2002 at Grafton he did maliciously wound Michael Christopher Lusty with intent thereby to do him grievous bodily harm.” That is an offence provided for by s33 of the Crimes Act 1900 for which there is a maximum penalty of 25 years imprisonment.

4 On 14 November 2003, Ellis DCJ sentenced the respondent to a term of imprisonment for 6 years commencing on 14 November 2003 and terminating on 13 November 2009 with a non-parole period of four years expiring on 13 November 2007. His Honour had allowed a 25 percent discount for the utilitarian value of the plea on arraignment and allowed a further 15 per cent discount for “assistance” to the authorities constituted by admissions made to investigating police.

5 At the time of the imposition of the sentence by Ellis DCJ the respondent was serving a sentence which had been imposed upon him on 16 May 2002 by his Honour Judge Freeman. He had been sentenced for the offence of aggravated robbery that involved the infliction of grievous bodily harm upon the victim. His Honour Judge Freeman had sentenced the respondent to a head sentence of six years and nine months imprisonment with a non-parole period of four years commencing on the 13 November 2001. The non-parole period of four years will expire on 12 November 2005 and the sentence itself imposed by Freeman DCJ is due to expire on 12 August 2008.

6 As stated above the sentence imposed by Ellis DCJ commenced on 14 November 2003 with a non-parole period of four years that will expire on 13 November 2007 with the total sentence itself expiring on 13 November 2009. It can thus be seen that the practical effect of Ellis DCJ’s order was to require the respondent to serve only an additional period of two years imprisonment over and above his previous sentence before being eligible for parole.

The facts of the offence

7 On 11 December 2002 the victim, Lusty, became an inmate at Grafton prison. On the following morning the respondent entered the victim’s cell and demanded a cigarette. When the victim refused saying, “I am not Santa Claus” the respondent threatened to stick or stab him and left.

8 The respondent then returned with a weapon in his hand and again demanded tobacco. The respondent said, “If you don’t give me a smoke I’ll take the whole pouch” referring to the victim’s Marlboro tobacco. He then showed that he was carrying what appeared to be a phillips head screwdriver in his left hand with most of the handle concealed by masking tape. When the victim refused again the respondent stabbed him in his right side around the kidney area. He then went back to the doorway and came back without the weapon.

9 After disposal of the weapon, the respondent then returned to the cell and punched the victim several times around the head and face and again left.

10 As a result of these assaults, the victim suffered a puncture wound, a three-centimetre laceration over his left eye which required sutures and other injuries. The extent of the injuries can be understood from an examination of the photographs accompanying the appeal papers.

11 The victim and the other occupant of his cell identified the respondent from prison photographs. The respondent was also shown on a security videotape which supported the account of the victim, but the tape did not depict the events inside the cell. Shortly after these events the respondent was interviewed by police officers and admitted assaulting the victim with his fists because he had made a smart comment to him, but denied any involvement in the use of a weapon. The respondent consented to the taking of a swab and the taking of other evidence amongst which were his thongs and shorts that bore stains consistent with being blood. There was also a footprint of the respondent in blood on the floor of the victim’s cell. A weapon similar to that described by the victim was later discovered.

12 The respondent admitted to his probation and parole officer as recorded in the pre-sentence report of 8 August 2003 that he had used a piece of metal to inflict the puncture wound, that piece of metal having been earlier acquired “in case of need”.

13 As stated above the respondent pleaded guilty upon arraignment and was awarded a 25 percent discount therefor by the learned sentencing Judge.

Subjective Considerations

14 The respondent, an Aboriginal, was born on 11 December 1981 and thus was 21 years at the time the sentence was imposed. He had left school in year 7 and he had a son aged 3 years as at November 2003 with whom he had apparently had periodic contact. According to the earlier sentence remarks of Freeman DCJ which Ellis DCJ apparently accepted, the respondent had had a poor upbringing in a family in which there was an excess of alcohol and violence. He also developed a “substance abuse disorder in relation to alcohol and an anti-social personality disorder” (per Freeman DCJ).

15 The respondent was illiterate and had never had employment. He had a poor criminal record that included conviction for dishonesty and robbery.

Proceedings on sentence and remarks on sentence

16 His Honour had before him the pre-sentence report dated 8 August. The pre-sentence contained a statement “Mr Hoskins did not express any remorse but couched the incident in terms of life in custody.”

17 In the second last paragraph it is said, “Mr Hoskins presented as a quietly spoken timid person who readily admits he suppresses any negative emotion. He impressed as having a lethargic attitude to life, viewing it rather as rather futile, having little drive to alter his attitude. Of concern is the fact that, in talking of the possibility of his propensity towards violence resulting in more serious charges, e.g. murder, and the possibility of a very lengthy sentence, he simply stated; ‘if it comes to it, it comes to it’.”

18 His legal representative, having said the offender would not give evidence on sentence, commenced his address to the learned sentencing Judge by stating that his client was sorry for what he had done despite what had been said in the pre-sentence report. His Honour was concerned about the second extract, whereupon the offender was sworn and examined. He denied having said the words “If it comes to it, it comes to it”.

19 After a few questions it appears that the offender’s position, as best it can be understood, was that he would simply accept being given an extremely lengthy gaol sentence. Thereupon, and over the three pages of transcript, there is recorded a series of questions his Honour asked of the offender, to which, it safely can said that not withstanding the length of the question, the answers were generally monosyllabic. By way of example:

“Q. Don’t you think that we all have to live with one another, we all have to be a little more reasonable with one another and not just do what we want to do just because we can do it?
A. Yeah
Q. You see you come along to this Court and you’re charged with a really serious matter, you’ve got two more years to go on your existing sentence and you don’t give me anything that I can grab hold of to give you a chance, you know you just say, “oh well I lost my temper, can’t control it, it may well happen again, if it does”, well then you should be doing something about your temper, I know you’ve had a tough life but do you think it’s going to get any easier by doing or acting the way you’ve been acting, I mean you just get longer sentences, I mean you’re 23, you’re 21, fit, healthy, the way you’re going you’re not going to have any of your twenties, the good years of your life are going to be in gaol when you could be out there doing lots of good things with your life, it’s not that much fun in gaol is it?
A. No.
Q. You know now if I give you a chance by giving you- I’m going to have to send you to gaol, I mean what you’ve done has got to get a goal sentence, but obviously you know it can be anything form a couple of years through to 25 years, but if I give you a chance by giving you a sentence that’s towards the lower end are you going to take it, are you going to go back to that gaol and control your temper?
A. Yeah.
Q. Because you know what’s going to happen if you don’t ?
A I just want to get the Court out of the way and settle into a day where I can start working on those things.
Q. Yes, all right, well I think you need to do a little bit of work, I know there’s a lot of anger in you and you know I can understand that but you know it’s that demon that’s in you you’ve got to control it because if you don’t your will just be back here time and time again getting longer sentences, or you will find someone in goal who is a better fighter than you and they’ll be the tripe out of you, you know, I’m sure there are people in there who are better fighters than you?
A. There’s heaps”.

20 The “examination” of the witness by the sentencing judge was directed at the last extract, para [17], as I have said. There was no cross-examination by the Crown and all of this took place without anyone objecting. But it is interesting to observe in my view, however, that the statement of the probation and parole service officer that the respondent lacked remorse was not confronted.

21 A similar theme is exposed in the remarks on sentence. After imposing the sentence under appeal, his Honour said: “I hope you realise that I have given you an opportunity but, you know I will go home tonight, I will live a good life here and after. Whether you do, completely and entirely depends on you. It is past the point where you can blame anybody else…”

22 These extracts are relevant to, and in my view support, the Crown case that his Honour seems to have found that the applicant was in fact sorry for what he did when there was no material that could rationally and reasonably underpin such a finding. Further, the extracted material can underpin, and in my view does, that part of the Crown’s case to the effect that in imposing sentence his Honour has given far too much weight to subjective matters and inadequate weight to the objective criminality.

23 In Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Meagher JA was concerned with a part of the proceedings appealed from where an evidentiary gap was filled in, so it appeared to Meagher JA, by a series of questions and answers from the trial judge to the plaintiff. Meagher JA said, having set out the relevant exchange between the trial judge and the plaintiff:

“His Honour, in substance, believed these answers. But, whilst fully appreciating the respect which an appellate court must accord to a trial judge’s findings based on credibility, I cannot believe that we should be impressed with this evidence. The questions were, after all, leading questions inviting the answers they got, and they were put by the judge not by counsel. … I do not believe a judge may make impregnable findings of fact by expressing a belief in evidence which he has put in a witness’ mouth”. (at 92B)

24 The substance of his Honour’s remarks, in my respectful view, is applicable to the course of the proceedings on sentence here and the learned sentencing Judge’s conclusions.

25 In his remarks on sentence his Honour summarised the facts. He refers to the prisoner’s consent to forensic procedures and states that on interview he “made full admissions to assaulting the victim but he had no explanation for that wound.”

26 I interpolate here that it cannot be said, even with the qualification to which his Honour refers, that the admissions were “full.” The denial in relation to the weapon goes to the heart of the charge.

27 His Honour refers to the respondent saying that the victim deserved what he got as he was being “smart”, and that the only reason the respondent stopped assaulting the victim was that his hands got sore.

28 His Honour then characterised the plea of guilty as having being entered at the first reasonable opportunity, which in this case was on arraignment. His Honour went on to characterise the Crown’s position as one that required it to call a number of inmates in circumstances where historically the prosecution of offences inside prison is very difficult for obvious reasons. To his Honour’s mind, therefore, the “early” plea and its value entitled the respondent to the maximum discount of 25 per cent.

29 His Honour noted the maximum penalty and irrelevantly noted the then new but inapplicable amendments to the Crimes (Sentencing Procedure) Act in relation to minimum non-parole periods. It was irrelevant to the exercise that his Honour noted that that amendment demonstrated the community’s attitude to offences of this kind. His Honour then stated: “short of murder this offence is the most serious offence of violence against the person known to our law.”

30 S56 of the Crimes (Sentencing Procedure)Act provides:

56 Sentences for offences involving assault by convicted inmate
(1) This section applies to:
(a) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or
(b) a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control.
(2) In the absence of a direction under this section, a sentence of imprisonment imposed on an offender:
(a) who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or
(b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings,
is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence.
(3) The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence.
(3A) Such a direction may not be given in relation to:
(a) an offence involving an assault, or other offence against the person, against a correctional officer committed by the offender while a convicted inmate of a correctional centre, or
(b) an offence involving an assault, or other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control,
unless the court is of the opinion that there are special circumstances justifying such a direction.
(4) A direction under this section has effect according to its terms.
(5) In this section, a reference to a sentence of imprisonment is taken to be a reference to:
(a) the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or
(b) the term of the sentence, in the case of a sentence for which a non-parole period has not been set.
(6) In this section, a reference to another sentence of imprisonment , other sentence of imprisonment or further sentence of imprisonment is taken to include a reference to a period for which a person is required to be detained in a detention centre under an order referred to in section 33(1)(g) of the Children (Criminal Proceedings) Act 1987

31 Here, I further interpolate that it is to be noted that it is only in relation to prison officers and juvenile justice officers that “special circumstances” must be found by the sentencing judge to depart from consecutive sentences (s56(3A)). Otherwise partial concurrence can be ordered by the sentencing judge (s56(3)). In the former case obviously the reasons for the finding of “special circumstances” would have to be exposed; in the latter the reasons in my view would need to be exposed.

32 His Honour then dealt with the proceedings before Judge Freeman and stated that he had read his Honour’s remarks.

33 His Honour then dealt with the subjective features summarised above in relation to the respondent including his criminal history and what his Honour said, not surprisingly, were “anger management problems”. His Honour then said: “He gave evidence before me and while he has not said this prior to today, a careful assessment of him, leads me to conclude that he is in fact sorry for what he did. That he does have some insight and understanding that what he did was wrong, and he does have some understanding that he needs to do something quickly and seriously about his anger management problems. I think that he also understands that the sentences that he receives will continue to increase and will, as it were continue simply to suck away his life unless he does something about it.”

34 I have already remarked on the availability of the finding that the respondent was sorry on the material before the trial judge. It was not expressly explored let alone expressly, voluntarily and spontaneously stated by the respondent. Indeed it was clear that he only stopped the assault because of pain he himself was feeling from dealing with the “cheeky” inmate (Lusty, the victim). His Honour’s questioning did not, in my view, alter that state of affairs or remove the import of the critical statement to the probation and parole officer, first extracted above. This was a case in which really all that could be found was that the respondent was sorry for the position in which he found himself. Further, that he does have some “insight” and “understanding” is a generous construction of his Honour’s questions and the generally monosyllabic answers given by the respondent during the course of the examination by the sentencing judge.

35 As to the grievous bodily harm his Honour found that “within the range of harm that one sees falling under s33, it is towards the lower end in my view”.

36 His Honour then goes on to consider a discount for assistance to authorities. He again refers to assistance being constituted by “full admissions”, significantly acknowledges that a lot of that is included within the plea of guilty, and proceeds to allow a further discount of 15 percent. His Honour refers to the age and other subjective matters again relating to the prisoner. He states his intention not to impose a sentence which would “crush him” and then proceeds to impose the sentence under appeal having found special circumstances.

Submissions

37 The first ground of the Crown Appeal is that the sentence imposed was manifestly inadequate, in which context it is to be observed that it can be taken that his Honour started with a figure of 10 years before reducing it by 40 percent (25 percent plus 15 percent).

38 It is the Crown’s submission that the sentence imposed for the offence was manifestly inadequate and clearly failed to reflect the objective criminality. The Crown submits that when imposing the sentence his Honour appears to have given far too much weight to the subjective matters, not least of which the relative youth of the respondent and his difficult family circumstances, and inadequate weight to the objective criminality in an assault described by the Crown as “brutal”. His Honour was in error in determining that the respondent was contrite.

39 This was a premeditated, very serious offence in relation to which the proscription contained in s56 is indicative of the seriousness with which the Legislature considers this type of offence for which it has otherwise provided a maximum penalty of 25 years.

40 The Crown does not dispute that Ellis DCJ acknowledged the serious nature of the offence. His Honour found the stabbing to be at the lower range of grievous bodily harm. This was not challenged by the Crown. It was, however, his Honour’s failure to give due weight to the objective circumstances that, inter alia, brought about the result under challenge.

41 The Crown points to the effective sentence of 2 years imprisonment over and above the previous sentences for an offence that constitutes a significant matter in the respondent’s antecedents, namely the matter for which he was dealt with by Freeman DCJ.

42 His Honour, it is submitted, was in error in directing that a significant portion of the new sentence should be served concurrently with the respondent’s previous sentence, even though that course was available pursuant to s56(3) of the Crimes (Sentencing Procedure) Act 1999. Considering the serious nature of the unprovoked assault there should have been some significant additional term added to the respondent’s non-parole period.

43 In the end, it was the Crown’s position that the concurrency of the sentences rather than the quantum of the sentence under appeal brought about the inadequacy.

44 The Crown, furthermore, submitted that it is to be noted that the parameters of an offence under s33 of the Crimes Act 1900 are relatively narrow; there must be infliction of grievous bodily harm (or wounding or attempted shooting at) with the specific intent. By reference to a series of Crown appeals tabulated in the written submissions sentences imposed, it is submitted, frequently comprise a minimum term which frequently is at 3 years and above.

45 For the respondent it is submitted that the sentencing Judge had a wide discretion in the way with which he dealt with the respondent (cf Everett v The Queen (1994) 181 CLR 295 at 306 per McHugh J). The ultimate question, before this Court is justified in intervening, is whether the sentence has been shown to be manifestly inadequate, something that is not brought about by the mere exposure of specific error alone (Regina v Reynolds [2004] NSWCCA 51 at [26] per Simpson J).

46 Even taking into account that the appellant’s table of cases shows sentences after successful Crown appeals, the respondent submits that the analysis does not disclose that the sentence imposed upon him is in any way “definitely outside the appropriate range” (McHugh J in Everett). The respondent submits, rather, that if the sentences were passed conformably with the convention that resentencing on a Crown appeal results in a sentence at or towards the bottom of the range of appropriate sentences, they show a range which reflects an element of leniency as a result of double jeopardy. It does not follow, however, that the sentences are lower than what would be appropriate: see Regina v Bavadra (2000) 115 A Crim R 152 per Wood CJ at CL at para 46; see also Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 at 341.

47 For myself, leaving to one side for the moment the patent errors upon which the Crown relies, even taking into account the respondent’s arguments as to the propriety of approach by the learned sentencing Judge in terms of appreciation of the objective seriousness of the offence, the 2 year “overlap” has brought it about that an effective sentence of but 2 years has been imposed upon the respondent. When that is considered against the maximum penalty, and against the nature of the crime and the environment in which it was committed, one can but conclude that minds would not differ in relation to the proposition that this sentence is definitely “outside the appropriate range”.

48 The Crown relied upon the specific error of his Honour having erred in allowing any discount for assistance to the authorities and the quantum of that discount (15 percent).

49 The Crown, however, acknowledges that the respondent was entitled to the full 25 percent in relation to the utilitarian value of his plea however.

50 The Crown submits that there is no warrant for any additional discount for mere admissions to the police, which were partial admissions as discussed above, or wiling participation in forensic tests.

51 The situation arises under s23(1) of the Crimes (Sentencing Procedure) Act where the sentencing Court is concerned with a person convicted of an offence and assisting authorities in the investigation of, or in proceedings relating to, the offence itself. Here it is a situation in which the person giving the assistance is the sole offender. It is a situation in which the person giving the assistance has made partial admissions only.

52 The more so when the sentencing Judge, as here, has stated an understanding that “a lot of that (assistance) is included within a plea of guilty discount”, great care must be taken to ensure there is no “double dipping” in a generous allocation of discounts (cf Spigelman CJ in Regina v Thomson & Houlton (2000) 49 NSWLR 383 at 417 para [140]). As was remarked during the course of submissions, the Crown case, otherwise than from admissions and even taking into account the environment, namely prison, in which the offence was committed, was not without strength in the light of the two eye witness accounts, the identification, and the video.

53 Even if I were persuaded that some discrete separate allowance must be made and quantified (see Regina v PPB [1999] NSWCCA 360) any such allowance would be so minimal it could safely be said to be incorporated in the 25 percent allowed by the judge for a plea on arraignment and with which the Crown does not take issue. It must be borne in mind that s23(3) of the Crimes (Sentencing Procedure) Act provides that any discount allowed as a result of assistance to the authorities must not result in a penalty which is “unreasonably disproportionate to the nature and circumstances of the offence” (cf Sully J in Regina v Armstrong [2000] NSWCCA 14 at [15]-[17]).

54 As the Crown submitted, this case cannot be considered to be the same as Regina v Cartwright (1989) 17 NSWLR 243, Regina v Dodd (1991) 57 A Crim R 349, or Regina v Ellis (1986) 6 NSWLR 603.

55 In Regina v Thomson & Houlton, supra, at [160] Spigelman CJ said:

“160 The Court should adopt the following guideline applicable to offences against State laws:
(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate .
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount”. (emphasis added)

56 Insofar as it was suggested, I add, that no submission was made by the respondent before the sentencing Judge to the effect that any sentence imposed should be entirely cumulative upon that already being served, the position, to my mind, is equivocal at least. At T9 (14/11/03) the Prosecutor is recorded as saying:

”McLENNAN: As I’ve indicated your Honour prima facie the position is the sentence must be consecutive but s56 of the Crime [sic] (Sentencing Procedure) Act allows you to direct that the sentence be partly consecutive and partly concurrent. And in my respectful submission that is something that must be done – well in my respectful submission the application of the totality principle can lead to a number of different results depending on which –

HIS HONOUR: Path, yes.

McLENNAN: – course your Honour takes, but that is obviously the key factor which must be kept in mind in my submission”.


It does not seem abundantly clear that what is there recorded justifies the respondent’s assertion in this regard. In any event, little turns on it.

57 I am of the view that the error in relation to the allowance of a further discount of 15 percent for “assistance” was an error of substance. That error can be characterised as one with the other matters to which I have hitherto referred and the remaining matter to be dealt with which brought about the manifest inadequacy of the result.

58 The third ground relied upon by the Crown is that the learned sentencing Judge erred in paying insufficient attention to the need for deterrence, both general and specific.

59 The submission is in general terms.

60 In his remarks on sentence the learned sentencing Judge said:

“This particular offence is significant because the maintenance of discipline within a prison system is important. There is a need to deter other prisoners who may be of like mind. There was significant violence, the use of a weapon, and it can be said that there was gratuitous cruelty, no regard for public safety, and whilst not planned, it was at least pre-meditated so far at least, as the obtaining of the weapon and use of the weapon is concerned”.

61 The issue cannot be that his Honour did not turn his mind to general deterrence in the present context. It certainly cannot be said in the light of his Honour’s questioning of the respondent and the remarks he made at the conclusion of his sentence that he was not concerned about specific deterrence.

62 The only conclusion that can be reached is that overall his Honour appears not to have given weight to the matters he identified. I am of the view that no message would go to prison inmates, especially from the reality of the sentence imposed as cumulated with the sentence being served.

63 The general principle in relation to deterrence of this kind of offence was stated by Barr J in Regina v Fyffe [2002] NSWSC 751 at [33]:

“It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them”.

64 The Crown has, in my view, made out a case for this Court’s intervention. Before turning to the resolution of the appeal there is one matter that should be dealt with as far as it can be.

65 The respondent affirmed an affidavit on 18 June. It was read on two bases: first, going to the residual discretion in the Court not to intervene, and second, on what I would say is the “usual” basis, as setting out matters the Court could take into account in the event of it deciding to re-sentence. There was an objection by the Crown to the Court receiving the affidavit on the first basis. That objection, however, was waived and withdrawn upon the Crown referring to s12(1)(c) of the Criminal Appeal Act and conceding that there would be “room” there for the Court to accept the evidence on that basis. The issue therefore does not require immediate resolution. There seems to have been different experiences among members of the Bench: I must say that for myself I have no recollection of an affidavit of this kind being tendered on the first basis. The respondent swears to participating in relevant courses particularly anger management, having regular telephone contact with his family, and he purports to express shame about the offence but then goes on to excuse it as it were, by dealing with other problems at the time and the build up of stress.

66 There is nothing in the additional material which, on the first basis, would incline me not to exercise any residual discretion if that was the only issue.

67 Similarly, I would not attach so much weight to the material in this affidavit as further to reduce, having taken into account the principle of double jeopardy, the new sentence to be imposed.

68 As to the sentence to be imposed, whilst I am of the view that the case at first instance would have warranted the total cumulation of the sentence arrived at by his Honour upon the sentence being served, the sentence proposed can be viewed as the least that could properly have been imposed to conform with the principles applicable to resentencing on a Crown appeal. The practical effect of the resentence will be to increase by 1 year to 3 years the actual period of custody for the s33 offence. There is no need, especially in the light of the approach taken by the Crown which focuses on concurrence, to otherwise reconstruct the sentence imposed by Ellis DCJ.

69 Accordingly I propose the following orders:

1. Appeal allowed.

2. Sentences imposed in the District Court on 14 November 2003 are set aside.

3. The respondent is sentenced to imprisonment for 6 years to date from 14 November 2004 which sentence is to expire on 13 November 2010. A non-parole period of 4 years is fixed to date from 14 November 2004 and to expire on 13 November 2008.

70 HULME J: In this matter I have had the advantage of reading the orders proposed by, and the reasons for judgment of, Levine J. I agree with those orders and substantially with his Honour’s reasons.

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Last Modified: 07/16/2004