R v Hunter - [2010] NSWCCA 54

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Hunter [2010] NSWCCA 54

FILE NUMBER(S):
2008/17210

HEARING DATE(S):
02/02/2010

JUDGMENT DATE:
15 April 2010

PARTIES:
Regina v Simon John Hunter

JUDGMENT OF:
McClellan CJatCL Howie J Harrison J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/17210

LOWER COURT JUDICIAL OFFICER:
Phegan ADCJ

LOWER COURT DATE OF DECISION:
28/09/2009

COUNSEL:
J Dwyer - Crown
J L Glissan QC/W J Wilcher - Respondent

SOLICITORS:
S Kavanagh - Crown
Thomson Playford Cutlers - Respondent

CATCHWORDS:
CRIMINAL LAW - Proceedings after conviction and sentence - Crown appeal - Offence under s 33B(1) of Crimes Act and 7 counts of assault occasioning actual bodily harm - use of motor vehicle as weapon - whether sentence imposed failed to reflect criminality involved in the infliction of injuries to numerous persons - whether overall sentence imposed manifestly inadequate - respondent resentenced.

LEGISLATION CITED:
Crimes Act 1900 - ss 33B(1)(a), 59, 61
Criminal Procedure Act 1986 - s 166
Road Transport (Safety and Traffic Management) Act 1999 - s 9(4)(a)
Crimes (Sentencing Procedure) Act 1999 - s 21A
Crimes (Appeal and Review) Act 2001 - s 68A

CATEGORY:
Principal judgment

CASES CITED:
R v Perez NSWCCA unreported 11 December 1991
R v Hamilton (1993) 66 A Crim R 575
R v Hutchinson [2000] NSWCCA 113
R v JW [2009] NSWCCA 49

TEXTS CITED:

DECISION:
The sentence for the PCA offence is confirmed and commenced from 14 June 2009. The sentences in respect of the counts on the indictment are quashed. In lieu the following sentences are imposed:
For the second count the respondent is sentenced to a fixed term of imprisonment of 18 months that commenced on 14 August 2009 and expires on 13 February 2011.
For the fourth count the respondent is sentenced to a fixed term of imprisonment of 12 months that commenced on 14 August 2009 and expires on 13 August 2010.
For the eighth count the respondent is sentenced to a fixed term of imprisonment of 6 months that commenced on 14 August 2009 and expired on 13 February 2010.
For the third count the respondent is sentenced to a fixed term of imprisonment of 18 months to commence on 14 June 2010 and expires on 13 December 2011.
For the fifth count the respondent is sentenced to a fixed term of imprisonment of 12 months to commence on 14 June 2010 and expires on 13 June 2011.
For the seventh count the respondent is sentenced to a fixed term of imprisonment of 18 months to commence on 14 March 2011 and expires on 13 September 2012.
For the sixth count the respondent is sentenced to a fixed term of imprisonment of 12 months to commence on 14 March 2011 and expires on 13 March 2012.
For the first count the respondent is sentenced to a term of imprisonment with a non-parole period of 13 months to date from 14 November 2011 and to expire on 13 December 2012 the date upon which the respondent is to be released to parole. There is to be a parole period of 14 months from 14 December 2012.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/17210
McCLELLAN CJ at CL
HOWIE J
HARRISON J
THURSDAY 15 APRIL 2010

REGINA v Simon John HUNTER

Judgment

McCLELLAN CJ at CL: I agree with Howie J.
HOWIE J: The respondent was convicted after trial by jury of a number of offences arising from an incident in which he deliberately drove his motor vehicle at a group of people, injuring a number of them. The Crown has appealed against the sentences imposed upon him.
The respondent was indicted for eight charges and was convicted of all of them. Count 1 alleged an offence of using an instrument, namely a motor vehicle, with intent to commit an indictable offence, namely common assault. This is an offence contrary to s 33B(1)(a) of the Crimes Act and in respect of which there is a maximum penalty prescribed of imprisonment for 12 years. Counts 2 to 7 each alleged an offence of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act for which there is a maximum penalty of imprisonment for 5 years. Count 8 alleged a common assault contrary to s 61 for which offence there is a maximum penalty of 2 years. There was also an offence dealt with under s 166 of the Criminal Procedure Act being an offence of drive with a high range PCA contrary to s 9(4)(a) of the Road Transport (Safety and Management) Act. The maximum penalty for that offence was relevantly 18 months imprisonment.
As a result of these convictions Phegan ADCJ (the Judge) sentenced the respondent to an effective sentence of 2 years 9 months from 14 June 2009 with an effective non-parole period of 2 years to expire on 13 June 2011 the date upon which the respondent is to be released to parole. The respondent was disqualified from driving for a period of 3 years.
The facts
The facts can be briefly stated. In the late evening of 26 March 2008 to the early hours of 27 March 2008 the respondent and a companion, named Max, were drinking at licensed premises in Terrigal. At about 11.30pm they were in a beer garden of a hotel when, as a result of some incident, they were asked to stop drinking or they would be requested to leave the premises. At about 1.30am they were escorted from the bar area. They were offered the use of a security bus but declined it as they wanted to purchase something to eat and then would take a taxi.
They then proceeded on foot along The Esplanade on the beachfront at Terrigal. At some stage, when the respondent had left his companion alone, an unknown person assaulted Max. Two observers sitting outside a bakery on the other side of the road came over to assist him causing the assailant to flee.
While these two men were crouched over assisting Max, the respondent appeared and erroneously came to the view that they were in the course of assaulting him. The respondent commenced to abuse them and as a result they retreated to the bakery. The respondent and his companion walked toward them hurling abuse at the two men who by now had joined a number of other persons outside the bakery.
The respondent and Max walked to where the respondent had parked a vehicle that he had hired. They entered the vehicle and the respondent drove from the car park into The Esplanade. The vehicle negotiated a raised pedestrian crossing just short of the bakery and then immediately turned right and accelerated toward the group sitting outside the bakery. The vehicle broke through the railing and into the area where the persons were seated. The vehicle came to a standstill because its path was blocked by the railing and some posts but the respondent continued to accelerate causing the wheels to screech.
Persons at the scene tried to gain entry to the vehicle but the doors were locked. At this time one of the group outside the bakery, Mr Moon, was trapped under the front wheels of the vehicle. He was concerned that the vehicle would move forward and he called for help. Some bystanders were able to free him by lifting the front of the vehicle. Eventually access was gained to the vehicle and the ignition turned off.
Police and ambulance officers quickly arrived at the scene. The respondent was removed from the vehicle and taken to a hospital. There a blood alcohol reading of 0.197 was obtained.
The respondent had pleaded not guilty to the charges on the basis that he was so intoxicated he did not form the intention to assault the persons at the bakery. The jury by their verdict clearly found that he had the necessary intention, and, therefore, his Honour was required to find that this was an intentional act of the respondent to drive his vehicle at the group of persons outside the bakery. His Honour said:
In light of the jury verdict, it can now be said that in what was a tragically misplaced act of revenge or retribution on the part of the offender, fuelled by a very heavy concentration of alcohol as a consequence of his lengthy night of drinking, committed a wanton act with reckless disregard of the safety of all of the people assembled in the front of the bakery.
Having noted that the injuries suffered as a result of the respondent’s driving were substantially less than might have been the case, his Honour went on:
But it was an indiscriminate act with potential danger of an almost immeasurable kind using an offensive instrument in terms of the principal offence with the potential for harm of a very extensive kind.
This act of driving gave rise to the first count in the indictment.
There were seven persons who were actually assaulted by the driving in the sense that they came into contact with the vehicle, although there would have been others in the group who must have been terrified by the incident.
The second count was an offence of assault occasioning actual bodily harm. This related to Mr Moon who had been trapped under the front tyres of the vehicle. The judge noted that no other person at the scene “was subjected to quite the same degree of trauma” and panic because of his fear that the vehicle would continue over him. He received a “chip off the elbow and nerve damage to his foot”. He also experienced pain to the right side of his body. He attended the fracture clinic at hospital.
The third count related to Mr Overall who was struck by the fence as the vehicle ploughed into it. He suffered a broken hand for which he was placed in a cast for just over three weeks.
The fourth count related to Mr Tocker, one of the persons who had sought to assist the respondent’s companion. The driver’s side of the vehicle struck his knee. He suffered a “six inch cut to his knee and medial ligament damage”. He was still limited in his activities at the time of giving evidence at the trial.
The fifth count related to Ms Acevedo-Bates. She was struck by part of the fence on the back of the leg and suffered abrasion to her heel and bruising to the back of the leg. She was limping for a day or two after the accident.
The sixth count related to Mr Maisano. He was knocked over by part of the fence pushed aside by the vehicle. He received a large cut on his leg with swelling and bruising. He was also inconvenienced for a short period by his injuries.
The seventh count related to Ms Daley. She was struck in a number of places by the vehicle forcing her to the ground. She suffered injuries to her elbows, thigh, left leg and swelling in her leg. She was on crutches for “some ten weeks” and was treated for some months by medication for a blood clot.
The eighth count was a common assault to Mr Hurley who was struck on the left wrist by the side mirror. He had pain and bruising and underwent some physiotherapy.
The respondent’s subjective case
The respondent was aged 36 years at the date of being sentenced. He has a record in South Australia, where he normally resides with his wife and step-daughter, for traffic matters including driving under the influence and failing to comply with an alcotest direction in 1996. He also failed to comply with an alcotest in September 2001.
There were a large number of testimonials placed before the Judge as to the high regard in which the respondent was held both by employers and members of the community generally. Since the commission of the offences he had undergone treatment for alcohol abuse and was no longer drinking alcohol. There was evidence as to the impact of the offending upon the respondent and a change in his outlook on life as a result of genuine remorse.
The respondent’s employer gave oral evidence as to the respondent’s value as an employee, and that he was a “quiet, non-aggressive, intelligent, efficient person”. Despite the offences a decision had been made to continue his employment. The respondent’s wife gave evidence as to the effect of the offending upon the respondent and his changed attitude to alcohol. She stated that he was “a very different person” and had “a real empathy for the effect that this has had upon me, his parents and extended family”. She gave evidence that he was not aggressive when drunk.
The respondent also gave evidence. He said that he was “ashamed for the hurt and heartache that I have caused the victims and their families due to this incident”. He said he would continue to attend AA and “just go back to being a law abiding citizen which I have always been”.
The sentencing remarks
In relation to the seriousness of the offence and after referring to the personal circumstances of the respondent, the Judge stated:
………I do not propose to understate the objective seriousness of, in particular, the principal offence in this case but rather note the enormity of it. The risk of far more serious consequences than actually occurred and, as I have already described, the completely indiscriminate and reckless attitude of the offender at the time of the commission of the offence raise it to a very high level of objective seriousness and one which would, had it not been for the circumstances which I have just described, be visited with a very lengthy term of imprisonment
However this is a case where the objective seriousness of the offence stands in stark contrast to the personal and subjective factors. I am satisfied that what happened on this occasion was entirely out of character……………
The Judge then referred to the support for the respondent from his employers and his wife and then stated:
There is one other matter which I should mention at this stage although difficult to quantify in any meaningful way. This is not a case where the nature of the offences concerned have necessarily created the actuality or likelihood of protective custody, a matter which would bear on the length of the sentence otherwise applicable. However, for reasons which in my view are entirely understandable, the offender did in the course of his evidence give testimony of the particular hardship which he experiences as a prisoner. It is in my view, as he explained, entirely predictable that he now has to spend time in custody amongst a large number of other prisoners with whom he has absolutely nothing in common and that this therefore does create, at least in a personal sense, complete isolation and discomfort if that is not an understatement. Certainly the experience of imprisonment for a person with his professional background is of a quite different order from those who share much more in common with many of their fellow inmates. This is a matter which in my view does have some bearing on the appropriate length of the sentence of imprisonment.
His Honour then went on:
Were it not for all of those considerations and, in particular the very tangible commitment to rehabilitation and a quite unqualified recognition and expression of the seriousness of the offence and the remorse expressed by the offender, a sentence of much greater length than the sentence I propose to impose would have been appropriate. I emphasise that because I do understand the public outrage which has been expressed about this offence which has been widely publicised. I understand the effect and the continuing resentment on the part of the victims for being exposed in some cases to actual injury but certainly to a quite significant and immediately traumatic threat of injury. All of those factors would lead to a quite legitimate expectation of a lengthy prison sentence for what was done by the offender but those concerns have to be qualified by the other matters by way of mitigation to which I have referred.
The Judge then considered matters of aggravation and mitigation found within s 21A of the Crimes (Sentencing Procedure) Act 1999 in a way that the Crown has not criticised.
The Judge determined that the sentence for the offence in Count 1 should be two years and three months with a non-parole period of 18 months, having found special circumstances in the need of the respondent for supervision in relation to his use of alcohol. His Honour then turned to the assault offences in counts 2 to 8 and determined the sentence for each offence as specified below. The Judge then turned to the PCA offence and, after a lengthy consideration of the relevant factors, determined that a sentence of 6 months imprisonment was appropriate.
His Honour then considered the question of totality and said this:
I accept the fact that there is a significant overlap between all of these offences in both the chronological and physical sense. There was essentially one principal act, that is the driving of the vehicle into the front of the bakery which generated prosecution on all of these charges and therefore it would be unduly harsh to impose a series of sentences which were not significantly concurrent with each other. However, there are two factors which called for some degree of accumulation and they are these.
As far as the assaults are concerned, there is a need to reflect in the overall sentence the actual injury inflicted on at least those of the victims who suffered more than a very minor injury of one sort or another. In the case of the sentences in those cases, that is the sentences which I have determined should be for six months, in counts two, three, four and six, should be accumulated at least to the extent that the measure of injury to those victims is separately reflected from the overall sentence imposed on the first count.
I am satisfied, in view of the length of the sentences and for reasons I have given about the element of concurrency, that an additional period of one month's imprisonment in the case of each of those should be accumulated in the overall sentence, that is that there should be an additional four months added to the eighteen months non-parole period imposed for the principal sentence.
…………
The same criteria should apply to the relationship between each of the counts of assault occasioning actual bodily harm. In other words, consistently there is an accumulation as between each of those offences in order to give effect to the additional four months imprisonment overall.
In relation to the PCA offence the Judge determined that there was required “a degree of accumulation which I have determined should be a further two months of the total sentence of six”.
The sentences
In respect of these offences the Judge sentenced the respondent in respect of the second, third, fourth and seventh counts to imprisonment for 6 months. The respondent was sentenced to imprisonment for 3 months on counts five and six and two months for count 8.
In respect of the high range PCA offence the Judge sentenced the respondent to imprisonment for six months. There is no appeal in respect of that sentence.
The Judge structured the sentences so that the sentence for the PCA offence commenced on 14 June 2009 and expired on 13 December 2009. The sentence for the second count commenced on 14 August 2009, the sentence for the third count on 14 September 2009, the sentence for the fourth count on 14 October 2009, the sentences for counts 5 to 8 from 14 November 2009 and the sentence for count 1 from 14 December 2009. The result was that the sentence for count 1 was accumulative upon the sentence for the PCA offence. The other sentences in effect were served concurrently with those two offences. The outcome of these sentences is that the respondent served no effective sentence for any of the offences relating to the injuries inflicted upon the victims even though these offences were not part of either the PCA offence or the use of the motor vehicle with intent to assault. This is a significant complaint made by the Crown about the sentencing of the respondent.
The Crown submissions
The Crown’s written submissions complain about the sentences imposed for counts 2 to 8 and not about the sentence imposed for count 1. This is despite the fact that the notice of appeal refers to each of the sentences imposed for the offences on the indictment. The Crown at the Court’s request furnished a further set of submissions referring to cases considered in this Court in respect of sentences for offences against s 33B. It is clear from those further submissions that the Crown does not maintain that the sentence for count 1 is manifestly inadequate.

The Crown did not specify any grounds of appeal in the Notice of Appeal. It did not even assert that the sentences were manifestly inadequate. The grounds of appeal relied upon are set out in the written submissions filed. The respondent did not take any objection to the form of the appeal or the notification of the grounds. None of the grounds specifically alleges that the sentence for count 1 is manifestly inadequate.
I do not understand why the Crown was willing to make this concession. I cannot conclude from the decisions referred to by the Crown that the offence committed by the respondent was necessarily less serious than the offence committed by other persons that were considered on appeal. In any event they were sentences imposed in light of their own particular facts. For example, I do not accept that the facts of R v Perez NSWCCA unreported 11 December 1991, were more serious than the facts of this matter. It is true that the applicant on two occasions in the one course of conduct drove his vehicle toward police officers. Clearly the Court in dismissing the appeal emphasised the seriousness of driving a motor vehicle towards a police officer, but it does not follow that it is less serious to intentionally drive a motor vehicle at a significant number of innocent civilians who were in no position to take effective action to protect themselves, both because of the position they were in and because they had no warning of the conduct of the respondent. The same can be said of R v Hamilton (1993) 66 A Crim R 575. Similarly I do not accept that it is more serious than the present offence to drive at police who were in their motor vehicles: R v Hutchinson [2000] NSWCCA 113 as serious as such an offence undoubtedly is.
This was, as his Honour appreciated, the intentional driving of a motor vehicle at speed at a group of unprotected civilians simply because the respondent decided to take reprisal for an imagined, but hardly serious, wrong inflicted upon his companion. I accept that the intention charged was only to assault but even so the potentiality of harm to innocent persons was high and it was nothing to do with the conduct of the respondent that more serious harm was avoided. In any case the offence in count 1 did not rely upon any harm being committed to any person. The maximum penalty for this offence is 12 years imprisonment and I believe this was a serious example of such an offence and warranted a severe sentence if for no other reason than to denounce such conduct.
It is at least curious that the Director would appeal against the sentence on count 1, presumably on the basis that it was manifestly inadequate, yet his representative in this Court submitted that the sentence was not in any way inadequate. In any event, in light of the Crown’s attitude, it is unnecessary for this Court to consider the appropriateness of the sentence on count 1. But I should not be taken to accept that the sentence for that offence standing alone was not inadequate to a significant degree.
The respondent takes a general stance on the Crown appeal. He refers to well-known and important authorities of this Court, appellate courts of other States and decisions of the High Court as to the basis upon which this Court can intervene at the behest of the Crown. So it is submitted that the sentence must be “unreasonable or plainly unjust” and that this Court must pay due respect to the position of the trial judge and the exercise of his discretion. It was submitted that the Judge in this case took time to deliberate on what was a difficult sentencing exercise given the respondent’s subjective circumstances.
Consideration of the grounds of appeal
The first ground is:
His Honour erred by failing to assess the objective seriousness of Counts 2-8 and by failing to impose effective punishment for those offences.
The Crown relies upon statements in decisions of this Court as to the need for a sentencing judge to indicate, to some degree, his or her assessment of the seriousness of the particular conduct for which sentence is to be imposed in order to determine where it falls generally in the range of criminal conduct that can arise under the particular statutory offence. The Judge made no assessment of the assault offences in that manner although he accepted that some of them were more serious examples than others by reason of the degree of injury inflicted. But he did not pause to consider where in the range of offences covered by the section and as against the maximum penalty for the offence any particular assault fell.
A number of these offences were as serious as an assault occasioning actual bodily harm could be. The injuries in at least two cases could have been considered as grievous bodily harm. The applicant could not be sentenced on that basis but it indicates how serious the offences were having regard to the kind of harm such an offence covers. In my opinion sentences of 6 months and 3 months were manifestly inadequate even if they represented the non-parole periods for those offences.
The maximum penalty for each offence was 5 years. The injuries were inflicted without any justification by way of provocation or for any other reason that might be mitigatory. The persons injured were completely innocent of any wrongdoing and, in any event, the injuries inflicted far outweighed whatever injuries were inflicted, if any, upon the respondent’s companion. The sentence imposed for each of the s 59 offences was manifestly inadequate to a very significant degree. It is obvious that they were treated as very minor offences of little significance in the sentencing process and yet they were not. The sentences imposed had insufficient regard to the nature of the injuries and the manner in which they were inflicted. They were unreasonable and plainly wrong.
The second, third and seventh counts each warranted a sentence of not less than a fixed term of 18 months. The fourth, fifth and sixth counts each warranted a sentence of not less than a fixed term of 12 months. Count 8 warranted a sentence of not less than a fixed term of 6 months.
The second ground of appeal is:
His Honour erred by failing to give adequate weight to the objective seriousness of the offences and by allowing too much weight to the respondent’s subjective circumstances.
This ground of appeal merely restates the complaint that the sentences are manifestly inadequate. It is difficult to determine the ground of appeal without considering the ultimate sentences and concluding that they are manifestly inadequate. There is nothing in the sentencing reasons that display the error. The ground merely relies upon statements made by the Judge as to the seriousness of the offences and then draws attention to the sentences imposed.
However, there is one specific complaint made about his Honour’s approach to the subjective factors and which, it is said, indicates the Judge’s undue regard to the subjective case of the respondent. It arises from that part of the sentencing remarks quoted above where his Honour determines that the nature of the respondent’s custody was a relevant matter justifying a reduction in the sentence because the respondent’s personal and professional background “is of quite a different order from those who share much more in common with many of their fellow inmates”. In effect his Honour found that because the respondent had nothing in common with other prisoners that this “does create, at least in a personal sense, complete isolation and discomfort if that is not an understatement”.
The passage in the sentencing remarks appears to arise from the respondent’s evidence in the following question an answer:
Q. What would you have learned from your time in goal so far?
A. It is not a very nice place. It is full of dishonest people, people that don’t want to take responsibility for their actions, yeah and it is hard to find people to relate to.
Whatever this answer says about the respondent’s view of his own crimes, the conclusion drawn from it by his Honour gave rise to a completely irrelevant consideration. The respondent was to be sent to prison because his conduct warranted his removal from general society for the purpose of punishment. It is part of the process of incarceration that the offender might have to share his imprisonment with persons that he would rather avoid or with whom he feels no common bond. Feelings of personal isolation, discomfort, loss or frustration arising from the normal effects of imprisonment have no part to play in sentencing an offender once it is determined that the only appropriate sentence is a period of full-time custody.
Counsel for the respondent before this Court conceded that the Judge took into account an irrelevant matter but submitted that it could not have greatly affected the sentence imposed. That may or may not be true but the fact that his Honour could take such a matter into account does show, in my opinion, an undue regard for the respondent’s subjective considerations when punishing him for an offence about which his Honour had noted “the enormity” of its objective seriousness.
Although the Crown complains of the manner in which the Judge took into account the respondent’s record, I do not believe there was any error. This was the respondent’s fourth offence concerned with alcohol and driving but the last offence occurred seven years earlier. The Judge said that they “did not bear heavily on the sentence which is appropriate in this matter”. He recognised their significance but it was within his discretion to find that the record was not a matter of aggravation and his remarks do not indicate that he treated them as irrelevant.
The third ground of appeal is that the overall sentence is manifestly inadequate. Even disregarding the sentence imposed upon the first count, I am of the opinion that this ground is made out. As I have already indicated, the Judge seemed to pay scant regard to the seriousness of the injuries inflicted upon the various victims and the individual sentence imposed for each of those offences was manifestly inadequate. But the structure of the sentences deprived the sentences he did impose of any effect on the overall sentence imposed. Although his Honour went through the process of making the sentences partly cumulative, this had no practical significance because the sentences were subsumed by the sentences for the PCA offence and the offence on count 1.
The result was that in addition to the sentence for the offence on count 1 the respondent received only an effective 6 months imprisonment for the PCA offence and the seven counts on the indictment including at least three serious offences of occasioning actual bodily harm. Although his Honour purported to apply the principle of totality, in my opinion the total sentence imposed fell so far below an appropriate reflection of the total criminality involved that the overall sentence imposed is unreasonable and plainly unjust so far as the community is concerned. This seems to be as a result of the Judge placing too much weight upon the fact that the offences all arose from the one act of driving.
Assuming that the sentence for count 1 was not inadequate, it was at the very lowest point in the available range. It could not encompass the criminality involved in the infliction of injuries as a result of the use of the vehicle. The additional criminality to that in count 1, including the PCA offence, required an additional penalty of 2 years to be served before release to parole. Had it not been for the Crown concession that the sentence for count 1 was not inadequate, I would also have increased the sentence for that offence.
Should the Court intervene?
This Court has a discretion to intervene at the behest of the Crown notwithstanding that it finds, as I have, that the sentence imposed was manifestly inadequate. That discretion has been confined by the passing of s 68A of the Crimes (Appeal and Review) Act 2001: as to which see R v JW [2009] NSWCCA 49. The Court can no longer take into account the anxiety or distress felt by a respondent who faces being sentenced for a second time: per Spigelman CJ at [141].
I can see no basis upon which the Court should exercise its discretion not to intervene and resentence the respondent. There has been some delay between the imposition of the sentence and the determination of this appeal, due in part because the Court was waiting for the decision in JW. But the respondent has been aware that his sentence was under review since the Crown filed its appeal on 3 November 2009. The respondent’s non-parole period as imposed is not due to expire until June 2011.
The sentences for the assault offences are to be fixed terms by reason of the sentence imposed for count 1. I do not believe that there are special circumstances except by reason of the accumulation of the sentences and that will be reflected in the non-parole period imposed for count 1. In any event 14 months parole is adequate for whatever rehabilitation the respondent requires after serving the increased term of imprisonment. I intend that the respondent should serve an over-all sentence of 4 years 8 months with a minimum period of custody of 3 years 6 months.
I propose the following orders. The sentence for the PCA offence is confirmed and commenced from 14 June 2009. The sentences in respect of the counts on the indictment are quashed. In lieu the following sentences are imposed:
1.For the second count the respondent is sentenced to a fixed term of imprisonment of 18 months that commenced on 14 August 2009 and expires on 13 February 2011.
2.For the fourth count the respondent is sentenced to a fixed term of imprisonment of 12 months that commenced on 14 August 2009 and expires on 13 August 2010.
3.For the eighth count the respondent is sentenced to a fixed term of imprisonment of 6 months that commenced on 14 August 2009 and expired on 13 February 2010.
4.For the third count the respondent is sentenced to a fixed term of imprisonment of 18 months to commence on 14 June 2010 and expires on 13 December 2011.
5.For the fifth count the respondent is sentenced to a fixed term of imprisonment of 12 months to commence on 14 June 2010 and expires on 13 June 2011.
6.For the seventh count the respondent is sentenced to a fixed term of imprisonment of 18 months to commence on 14 March 2011 and expires on 13 September 2012.
7.For the sixth count the respondent is sentenced to a fixed term of imprisonment of 12 months to commence on 14 March 2011 and expires on 13 March 2012.
8.For the first count the respondent is sentenced to a term of imprisonment with a non-parole period of 13 months to date from 14 November 2011 and to expire on 13 December 2012 the date upon which the respondent is to be released to parole. There is to be a parole period of 14 months from 14 December 2012.
HARRISON J: I agree with Howie J.
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LAST UPDATED:
15 April 2010