R v Jenkins

[2006] NSWCCA 412

CITATION:	Regina v Jenkins [2006] NSWCCA 412
HEARING DATE(S):	14/12/2006
JUDGMENT DATE:	19 December 2006
JUDGMENT OF:	Simpson J at 1; Barr J at 2; Hoeben J at 3
DECISION:	Crown appeal dismissed.
CATCHWORDS:	Crown appeal against sentence - maliciously inflict grievous bodily harm with intent to do grievous bodily harm contrary to s33 of Crimes Act 1900 - incorrect use of standard non-parole period - restraint to be exercised in Crown appeal.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Dinsdale v The Queen (2000) 202 CLR 321 Griffiths v The Queen (1977) 137 CLR 293 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 at 671 Malvaso v The Queen (1989) 168 CLR 227 at 234 Markarian v Regina (2005) 79 ALJR 1048 at [25] – [27] R v AJP (2004) 150 A Crim R 575 R v Allpas (1993) 72 A Crim R 561 R v Baker [2000] NSWCCA 85 R v GJ Davies [2004] NSWCCA 319 R v Holder and Johnstone (1983) 3 NSWLR 245 at 256 R v McGourty [2002] NSWCCA 335 at [45] R v Papazis (1991) 51 A Crim R 242 at 247 R v Tait (1979) 46 FLR 386 at 388 Regina v Wall [2002] NSWCCA 42 R v Way (2006) 60 NSWLR 168 at [116-118] Tidona v Regina [2005] NSWCCA 410 Wong and Leung v The Queen (2001) 76 ALJR 79
PARTIES:	Crown - Applicant Tyneal Jenkins - Respondent
FILE NUMBER(S):	CCA 2006/1637
COUNSEL:	P Barrett - Applicant Crown J Stratton SC - Respondent
SOLICITORS:	S Kavanagh - Solicitor for Public Prosecutions SE O'Connor, Legal Aid Commission of NSW - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/21/0077
LOWER COURT JUDICIAL OFFICER:	CJ Armitage DCJ
LOWER COURT DATE OF DECISION:	23/06/2006

2006/1637

SIMPSON J
BARR J
HOEBEN J

Tuesday, 19 December, 2006

REGINA v Tyneal JENKINS

JUDGMENT

1 SIMPSON J: I agree with Hoeben J.

2 BARR J: I agree with Hoeben J.

3 HOEBEN J:

Offence and sentence The respondent was charged on indictment that on 3 October 2004 she did maliciously inflict grievous bodily harm upon Brooke Clingan with intent to do grievous bodily harm to her. This was an offence contrary to s33 of the Crimes Act 1900. The offence carried a maximum sentence of 25 years imprisonment with a standard non-parole period of 7 years.

4 The respondent pleaded not guilty to that indictment and a trial took place before CJ Armitage DCJ and a jury between 24 and 28 April 2006. On that latter date the jury returned a verdict of guilty. After three days in custody, the respondent was granted bail.

5 On 23 June 2006 the respondent was sentenced by his Honour. The sentence imposed was a non-parole period of 2 years and 6 months commencing 20 June 2006 and expiring 19 December 2008 with a balance of sentence of 2 years and 6 months expiring 20 June 2011.

6 The Crown appeals against this sentence on the basis that it was manifestly inadequate.Factual background

7 Because the respondent was convicted after a jury trial there was no agreed statement of facts and precisely what facts were accepted by the jury cannot be determined. However there does not appear to have been a large area of contest. The principal issue at trial was the question of the respondent’s intent. What follows is, in general terms, drawn from the evidence at trial and from the findings of fact contained in the Remarks on Sentence.

8 At about 1.30am on Sunday, 3 October 2004 the victim and some friends were enjoying “a girls’ night out” at the Castle Hill Tavern in Castle Hill. The victim laughed at a person on the dance floor, which turned out to be the respondent’s boyfriend. This led to the respondent approaching the victim in a confrontational manner and “having words with her”.

9 At approximately 3am the respondent, with a schooner glass of water in her hand, shoulder charged the victim knocking her off balance. Words were again exchanged between the victim and the respondent. While the victim was turned away from the respondent, the respondent purposely tipped water from the glass over her head and face. The respondent then drew her arm back over her shoulder and pushed the glass forward with such force that it impacted around the victim’s right eye and the glass shattered. After inflicting the injury, the respondent walked away. At that time the respondent appeared to be indifferent to the injuries suffered by the victim.

10 As a result of the attack, the victim suffered facial scarring and serious injuries to her right eye. She underwent urgent surgery at Westmead Hospital on 3 October 2004 to repair a penetrating injury to the eye. She underwent further operations on 20 October 2004 and 22 December 2004. These were carried out in an attempt to prevent the retina of the eye spontaneously detaching.

11 By 9 February 2005 the victim’s visual acuity in the right eye was counting fingers only. The prognosis for recovering sight in that eye was extremely poor. It was likely that she would develop repeated retinal detachment. The retinal detachment might become so severe as to not allow surgical repair. There was a significant chance that the victim might require removal of the eye itself. The trauma to the right eye would in the future pose a risk of sympathetic ophthalmia which could affect the left eye.

12 Apart from her physical injuries the effect on the victim’s life has been substantial. She was a serving police officer (unknown to the respondent at the time) who is unlikely to be able to continue active service because of the impairment to her sight. Until the time of the injury she was looking forward to a promising and lengthy career in the Police Service.

Objective seriousness

13 It was common ground that the objective seriousness of the offence was substantial and that there were a number of aggravating features. The attack was unprovoked. It involved the use of a weapon. The extent of the victim’s injury significantly exceeded the minimum necessary to qualify as grievous bodily harm and consequently of itself constituted an aggravating feature.Subjective factors

14 The respondent had a strong subjective case. She was born on 17 June 1985 and was nineteen at the time of the offence. Her parents had divorced when she was aged three and her mother died when she was fourteen. Her family background was difficult with her mother entering a number of short term relationships. The respondent was one of four half siblings and three natural siblings. Her relationship with those siblings was not particularly good.

15 The respondent left school towards the end of year 10 as a result of being teased and bullied. She worked in part time positions while at school and maintained employment thereafter and was working at the time when she was sentenced. As of the date of sentence she was in a stable relationship of approximately two years’ duration. At the time of the offence the respondent had consumed a large quantity of alcohol. A psychological report tendered on her behalf indicated that she was suffering from bouts of “a major depressive disorder” at the time. This depression was exacerbated by her personal circumstances and family issues and by the large amount of alcohol which she had consumed.

16 The respondent had no criminal record and until this offence, had not come under notice by the police. There was evidence before his Honour that following the offence the plaintiff had been seeking counselling to manage her problems and manage her anger. She had abstained completely from alcohol. She had expressed remorse for her actions. At the time of sentence, she was suffering from and being treated for cervical cancer.

Remarks on sentence

17 As a result of the medical material before him, his Honour concluded that to an extent the respondent was suffering from depression and anxiety at the time of the offence. His Honour appreciated that those considerations did not reduce the respondent’s criminal responsibility but did accept that those conditions would reduce the respondent’s appreciation of the consequences of her acts. Nevertheless, his Honour concluded that given the nature of the offence such considerations should not weigh too heavily.

18 In considering the application of the standard non-parole period, his Honour had regard to the decision of this Court in R v Way (2006) 60 NSWLR 168 at [116-118]. In assessing the objective seriousness of the offence, his Honour reached the following conclusion:

“Balancing the two matters I have mentioned, the damage to the victim and the lack of planning and taking into account all of the other circumstances of the offence, particularly those set out in the sentencing facts which I have found as summarised from the Crown submissions and slightly altered by myself, I am of the view that the present offence, while not by any means at the bottom of the scale of seriousness of offences under the section, falls somewhat below the middle of the range of objective seriousness of such offences.” (ROS 18)

19 Having decided that the objective seriousness of the offence was below the middle of the range of objective seriousness for offences of this kind, his Honour then balanced the aggravating and mitigating features of the offence in order to determine whether to apply the standard non-parole period. Having done so, his Honour concluded that despite the seriousness of the offence there were a very large number of mitigating circumstances. His Honour concluded that it would not be appropriate in those circumstances to impose the standard non-parole period:

“But here we have a young woman who has no prior criminal record, prior good character, an unlikelihood of re-offending and with good prospects of rehabilitation with appropriate psychiatric or psychological help, as I have found, who has shown remorse for the very serious offence committed and who was suffering from depression at the time it was committed, which contributed to the commission of the offence to some degree so as to reduce slightly the necessity for general deterrence, albeit that it did not remove her ability to become aware of the consequences of her actions. One would not do justice in a case of this type to impose the standard non-parole period.” (ROS 25)

20 His Honour found special circumstances on the basis that the respondent was to undergo her first experience in custody and that she would require a longer than usual period of supervision to address her anger management and other family issues in appropriate psychological or psychiatric counselling. It was against that background that his Honour passed sentence.Crown appeal

21 The Crown submitted that the sentence passed by his Honour was manifestly inadequate. It sought to establish that proposition by reference to a number of errors which it submitted his Honour had made in his Remarks on Sentence.

22 The Crown submitted that his Honour had erred in failing to have regard to the maximum penalty for the offence when assessing the appropriate penalty. I am not persuaded that his Honour erred in that regard.

23 At the very beginning of his Remarks, his Honour specifically referred to the maximum sentence of 25 years and said:

“It is appropriate on sentence to approach one’s task with that maximum as a starting point as is emphasised in Tidona v Regina [2005] NSWCCA 410.”(ROS 1)

Later in his Remarks, his Honour said:
“The Crown drew my attention to the fact that this was a finding of guilt after trial and that in the way mandated in R v Way (2004) 60 NSWLR 168 the standard non-parole period provided by section 54A of the Crimes (Sentencing Procedure) Act 1999 had to be taken into account, but that one first approached the sentencing task with the maximum sentence in mind, as mandated by Tidona’s case referred to above, and I have done that.” (ROS 16)

24 The Crown next submitted that his Honour had made a number of errors in how he approached the standard non-parole period prescribed for this offence. The Crown noted that for much of the judgment his Honour appeared to be of the belief that the standard non-parole period was five years rather than seven years. It submitted that his Honour appeared to treat the standard non-parole period as a guidepost not for determining the appropriate non-parole period but in determining the total sentence. It submitted that a non-parole period of 2 years and 6 months was inconsistent with his Honour’s finding that the offence was somewhat below the middle of the range of objective seriousness for offences of this kind. Finally the Crown challenged his Honour’s finding that the objective seriousness of the offence fell below the mid-range.

25 His Honour’s finding that the objective seriousness of the offence was somewhat below the mid-range of seriousness for offences of that kind, involved an exercise of a broad sentencing discretion. For this Court to intervene in relation to such a finding error of the kind described in House v The King (1936) 55 CLR 499 would have to be identified. (See also Markarian v Regina (2005) 79 ALJR 1048 at [25] – [27].) That has not been done.

26 It is true that for some period during the delivery of his Remarks on Sentence, his Honour appeared to be under the misapprehension that the relevant standard non-parole period was five years rather than seven years. Nevertheless that misunderstanding was corrected by the Crown before his Honour passed sentence and it is clear that his Honour had in mind and was aware that seven years was the standard non-parole period for this offence when he passed sentence.

27 Although the Crown did not articulate its complaint in quite this way, it does seem to me that there was error in his Honour’s approach to the application of the standard non-parole period. The authorities are clear that even when a Court decides that the standard non-parole period should not be applied, it remains relevant as a guidepost in the sentencing process.

“In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or a sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that section 22A of the Act contemplates that the fact of a plea will attract a discount.The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed subject to section 22A, for matters within the midrange, it will act as a guide for cases that are outside the midrange.The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at [45]), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.” ( R v Way [122]-[124])

(See also R v GJ Davies [2004] NSWCCA 319 and R v AJP (2004) 150 A Crim R 575.)

28 What those authorities make clear is that the standard non-parole period, even if not applied, still has an important part to play and cannot be left out of consideration when the ultimate sentence is formulated.

29 In the instant case, his Honour having decided that he ought not impose the standard non-parole period appears to have totally disregarded it thereafter. That approach does, it seems to me, amount to error, although not the precise error identified by the Crown in its submissions.

30 Another error, the Crown submitted, was that his Honour gave insufficient weight to the concept of general deterrence, which was of particular importance in a crime such as this. As a corollary to that submission the Crown argued that his Honour had given too much weight to the subjective features of the respondent. As a result, it was submitted, the total sentence and the non-parole period failed to adequately reflect the objective criminality of the offence.

31 His Honour clearly had regard to the question of general deterrence and devoted a significant part of his remarks to the tension between the application of that principle and the depressive condition from which he found the respondent was suffering at the time of the offence. Even so his Honour thought that the need for general deterrence would only be “slightly” reduced by reference to that consideration. The real complaint of the Crown in this submission goes back to that previously referred to, ie the apparent discrepancy between the non-parole period awarded by his Honour and the standard non-parole period specified by the legislature.

32 Lastly, the Crown submitted that his Honour had double counted the subjective features in the respondent’s case by also taking some of them into account when making his finding of special circumstances. As a matter of principle I cannot see why relevant matters in a prisoner’s subjective case cannot also be taken into consideration when a court decides whether or not special circumstances apply. In any event the reasons identified by his Honour for finding special circumstances were appropriate and justified that finding.

Conclusion

33 It was properly conceded on behalf of the respondent that his Honour’s sentence was lenient in the circumstances. As indicated above, I am of the opinion that his Honour did fall into error in failing to have appropriate regard to the standard non-parole period even though his Honour had decided that it ought not apply. In those circumstances the question is whether this Court should intervene.

34 The proper approach to Crown appeals was comprehensively summarised by Wood CJ at CL in Regina v Wall [2002] NSWCCA 42:

“70 The Crown contends that not only was the sentence imposed inadequate on its face, but also that the sentencing judge made a number of errors of principle in determining that it was appropriate to proceed under s19B of the Crimes Act 1914. Before considering these submissions it is important to note the principles which apply in relation to the determination of a Crown appeal against:(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388 and Wong and Leung v The Queen (2001) 76 ALJR 79 at [58] and [109].(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle “for the governance and guidance of courts having the duty of sentencing convicted persons”: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32 at [61] and [62] and Wong and Leung v The Queen at [109].

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of the Crown appeal: R v Allpas (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247 and Wong and Leung v The Queen at [110].

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be lesser than that which should have been imposed by the sentencing court: R v Holder and Johnstone (1983) 3 NSWLR 245 at 256 and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at [62].”

35 The sentence passed by his Honour was very lenient and were I passing sentence, I would have imposed a longer non-parole period and a longer balance of sentence. That, however, is not the test. Although I have wavered on this issue, in the end I am satisfied that the sentence passed by his Honour was still within the range of sentences open to his Honour for offences of this kind. For that reason and being mindful of the judicial restraint to be exercised in Crown appeals, I would not interfere with his Honour’s sentence.

36 The order which I propose is that the Crown appeal be dismissed.

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