R v Little

[2013] NSWCCA 288

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Little [2013] NSWCCA 288
Hearing dates:	18 November 2013
Decision date:	18 November 2013
Before:	Blanch J at [1] RA Hulme J at [33] Bellew J at [34]
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW - sentencing - Crown appeal against sentence - whether sentence is manifestly inadequate - whether accumulation inadequate - whether non-parole period inadequate - effect of imminent release - effect of mental health issues - Crown appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912, s 5D(1) Crimes Act 1900 (NSW), s 112(3), s 96 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	R v Henry (1999) 46 NSWLR 346 Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 Johnson v The Queen (2004) 205 ALR 346
Category:	Principal judgment
Parties:	Crown (Applicant) Daniel James Little (Respondent)
Representation:	Counsel: V Lydiard - Applicant P Hamill SC - Respondent Solicitors: S Kavanagh, Solicitor for Public Prosecutions - Applicant S E O'Connor, Legal Aid NSW - Respondent
File Number(s):	2010/65426
Publication restriction:	No
Decision under appeal	Jurisdiction: 9101 Citation: R v Daniel James Little Date of Decision: 2013-04-19 00:00:00 Before: Judge English File Number(s): 2010/65426

Judgment

1. BLANCH J: The Crown appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 against a sentence imposed on Daniel James Little, the respondent, in the District Court at Wagga Wagga on 19 April 2013 on the ground that the sentence imposed was manifestly inadequate.

1. On 30 November 2012 the respondent entered pleas of guilty to the following counts:

(1) Specially aggravated break enter and commit serious indictable offence (wound Elizabeth Cattell) on or about 22 January 2009 contrary to s 112(3) Crimes Act 1900 which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years.

(2) Aggravated robbery with wounding on or about 22 January 2009 contrary to s 96 Crimes Act 1900 which carries a maximum penalty of 25 years imprisonment.

1. On 19 April 2013 he was sentenced on count 1 to imprisonment for 6 years commencing 8 July 2010 and expiring 7 July 2016. A non-parole period was fixed of 3 years and 6 months expiring on 7 January 2014. On count 2 he was sentenced to 6 years imprisonment commencing 8 October 2010 and expiring 7 October 2016 and a non-parole period of 3 years and 6 months expiring on 7 April 2014. In imposing sentence Judge English indicated her remarks when previously sentencing the respondent should also be taken into account. That comment relates to a sentence imposed by the same judge on the respondent on 4 August 2010. On that day he was sentenced to a total term of 3 years and 9 months commencing 8 July 2009 and expiring 7 April 2013. A non-parole period of 2 years and 3 months was specified and that expired on 7 October 2011.

History of proceedings

1. On 8 July 2009 the respondent was arrested for the offence committed in 2008 and he has been in custody since that date. On 2 December 2009 he was charged with the subject 2009 offence. On 5 February 2010 the 2009 offences were dismissed at committal in the Local Court. On 15 March 2010 the Crown filed a notice of intention to file an ex officio indictment in relation to these offences.

1. On 4 August 2010 the judge sentenced the respondent for the 2008 offences. On the same day the judge found under Part 2 of the Mental Health (Forensic Provisions) Act 1990 he was not fit to be tried in relation to the 2009 offences. The reason for accepting the plea of guilty and proceeding to sentence and at the same time finding the respondent unfit to be tried was explained by the judge by reference to the psychiatric material. In a report of Dr Stephen Allnutt, psychiatrist of 6 July 2010 he said:

"My concerns lie in his capacity to follow proceedings and also his capacity to instruct counsel during proceedings as there is a risk that he would misunderstand information that is provided during the court given his problems found on neurological testing; on balance I believe there are grounds to consider that he is marginally unfit to stand trial.

If he was pleading guilty to the offence then this might be less of an issue; then I believe he is likely fit to plead but if there was a trial then this would be an issue of concern."

1. On 29 November 2010 the Mental Health Review Tribunal concluded that the respondent remained unfit to be tried and would not be fit in the ensuing 12 months.

1. On 23 August 2011 the matter came before Judge Norrish QC in the District Court and he refused the application that the respondent be permitted to plead guilty.

1. On 7 October 2011 the non-parole period for the sentence imposed on the 2008 offence expired but the respondent remained in custody because he was a forensic patient under the Mental Health Review Tribunal. In February 2012 the Mental Health Review Tribunal again reviewed the respondent but found he was still unfit to stand trial.

1. On 30 November 2012 Judge English found the respondent fit to plead guilty and be sentenced although she was of the view that he remained unfit to stand trial. On 19 April 2013 she found as a result of reports from Dr Scott Clark and Dr Jones and Dr Allnutt that the respondent was fit to plead.

Facts

1. At about 10pm on 22 January 2009 the respondent entered the home of Elizabeth Jean Cattell who was aged 82 and her daughter Maria Elizabeth Cattell aged 46 in Bourke Street, Turvey Park. He entered through a rear door and confronted Maria Cattell. He was wearing a hood and armed with an implement made by attaching a cricket ball to a pool cue handle. He covered his face and waved the implement around telling Maria Cattell "Give me money, give me money now" and he struck her with the implement on her right shoulder. Maria Cattell tried to stand between the respondent and her mother but her mother reached around and grabbed the respondent's arm. Maria retreated to obtain money from her wallet and returned with $30. The respondent said "I want more" and struck Maria Cattell once with the implement. She then went to obtain more money and he struck Elizabeth Cattell to the head with the mallet.

1. Maria then gave him a further $50. He then struck her again with the implement and ran out of the house. The implement was subsequently found abandoned in the house.

1. As a result of the assaults Maria Cattell sustained a 4cm long deep laceration to the left side of the skull which required 5 sutures and a second deep long laceration to her scalp over 4cm which required the insertion of 13 staples to repair the wound. She also had bruising to her right shoulder.

1. Elizabeth Cattell sustained a 6cm jagged laceration to the left front temple which required 27 staples to repair the wound and a 3cm laceration to the left scalp which required 7 staples to repair the wound and she suffered a bruise to the left forearm.

1. In an intercepted telephone call after the event the respondent was recorded as saying:

"They went like that and I went like that, there, and I went whoosh. That was to stop them trying to pull my hand from my mouth so that they couldn't see my mouth and I just whacked the cunt, hacked them hard, hard, and went whack there and whack there and whoosh."

1. In relation to the earlier offence of 26 October 2008 the respondent and another offender went into the presbytery of the Catholic Church at Turvey Park. The respondent was armed with a knife and wearing a balaclava and he threatened the Parish Priest with the knife and demanded money from the presbytery safe. He pushed the handle of the knife into the priest's back and when the priest opened the safe he removed a number of money bags containing cash, cheques and credit card details from parishioners collected over the weekend services. The offenders escaped with $2435.

The Crown submissions

1. At the sentencing proceedings on 19 April 2013 the Crown sought an accumulation of sentences commencing at the expiration of the non-parole period fixed for the 2008 offence. That non-parole period expired on 7 October 2011. The judge, however, commenced the sentences for these offences from 8 July 2010.

1. In this Court the Crown argues there was a "failure to adequately accumulate the sentences" and that the statutory ratio was varied to an extent which resulted in a manifestly inadequate non-parole period. In putting that proposition the Crown concedes "the measure of accumulation of 12 months on the 2010 robbery was lenient but probably not erroneously so ..." I assume that relates to the robbery which occurred in 2008 for which sentence was imposed in 2010. The earlier non-parole period expired on 7 October 2011. The non-parole period for these offences expires on 7 April 2014 which adds 2 years and 6 months to the period the respondent will be in custody.

1. In sentencing for the 2008 offence the sentencing judge categorised the offence as one falling above that envisaged in the guideline judgment in R v Henry (1999) 46 NSWLR 346 where the Court of Criminal Appeal indicated that a sentence of between 4 and 5 years was called for. When she imposed the sentence she imposed a sentence of 3 years and 9 months. There was no Crown appeal in respect of that sentence. The argument sought to be advanced here is that the sentences under appeal are manifestly inadequate in that there should have been a greater accumulation on the pre-existing sentence and there should be a greater accumulation in respect of the second sentence under appeal. I note, however, that before the sentencing judge the submission of the Crown was that "There would be separate and distinct sentences imposed although those sentences would have a significant degree of concurrency". The Crown also conceded that had the matter been dealt with at the same time as the 2008 offence "there may have been some limited accumulation of the sentences imposed."

1. In Regina v Weldon; Regina v Carberry (2002) 136 A Crim R 55 Ipp JA at [48] stated that it is:

"not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed" ... "this is not an inflexible rule".

1. In determining whether there is to be accumulation and the extent of that accumulation it is firstly necessary to identify the separate acts and any harm flowing from those acts. It is then appropriate to impose separate and cumulative sentences where the requirements of justice so dictate. In doing that, however, it is necessary to take account of the principle of totality and in arriving at a final sentence all the factors relating to the objective criminality and all the factors relating to the subjective circumstances of the offender must be taken into account.

Consideration

1. The respondent was born on 29 May 1986. At the time he committed these offences he was 22 years of age and he was 23 years of age when he commenced serving the sentence imposed for the 2008 offence. He has a juvenile record which included aggravated robbery in 2003, common assault in 2004, break and enter with intent, using an offensive weapon, common assault and larceny in 2005 and stealing from the person in 2006, traffic offences in 2008 and assault occasioning actual bodily harm in 2008. None of the above offences resulted in incarceration but he was placed on a 3 year s 9 bond in May 2008. He was on that bond at the time he committed the offences. He was given a 30 hours community service order in September 2008 for break and enter with intent. Accordingly, this is the first time he has served a gaol sentence.

1. The sentencing judge referred to Dr Rowe's report and said that he

"... determined that the offender had been affected with a chronic neurodevelopmental disorder from infancy associated with mild to moderate retardation and an ADD. He found the offender to be suffering from impaired language skills, verbal intellectual difficulties and an IQ which was initially assessed between 50 per cent and 55 per cent, and later between 68 per cent and 79 per cent. He was of the opinion that the offender's neurological disorder caused him to suffer significant impairment of rational understanding, comprehension, consequential thinking and judgment."

1. It is clear from the reports that the respondent has significant mental health issues and I have already outlined the history relating to the question of his fitness to plead. The sentencing judge correctly regarded this material as indicating that general deterrence was a matter of less significance in this case than it might otherwise have been.

1. The history of the proceedings against the respondent indicate that his period so far in custody would have been very disrupted as his mental state was assessed at various stages of the proceedings. In addition he has significant hearing problems. Moreover, through no fault of his own there has been considerable delay in getting the matter to finality in the Court. The Crown appeal was lodged promptly on 7 May 2013 but in addition to the delay the respondent has suffered in the past he now suffers the additional delay of more than 6 months from the lodging of the appeal. The effect of all the delay in this case is that the matter now comes for determination less than 5 months from a time when he is to be released from custody after serving 4 years and 9 months in custody.

1. In Green v The Queen and Quinn v The Queen (2011) 244 CLR 462 at page 479 [43] in the majority judgment of Finch CJ it was said:

"Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation."

1. In Green v The Queen supra page 465 [1] the principle long established by the High Court was reaffirmed that the purpose of Crown appeals is:

"to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."

1. The Court went on to say at page 477 [36]:

"It does not extend to the general correction of errors made by sentencing judges. It provides a general framework within which to assess the significance of factors relevant to the exercise of the discretion."

1. The High Court also said in Johnson v The Queen (2004) 205 ALR 346:

" Judges at first instance should be afforded as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected."

1. In this case the Crown did not appeal against the sentence for the first offence which was passed in 2010. The Crown accepted in the sentencing proceedings for these two offences that there would be substantial concurrence between the two sentences. The Crown appeal focuses on the extent of the accumulation for these offences on the 2008 offence both as to the head sentence and non-parole period. In my view, the sentencing judge carefully considered all of the subjective and objective features of the case and cannot be said to be in error in her considerations. It is not for this Court to impose another sentence simply because it believes a longer sentence should be imposed. The sentences imposed by the sentencing judge here were within the broad sentencing discretion of a sentencing judge and the challenge to them has not been made out.

1. Similarly the challenge to the non-parole period does not succeed. The non-parole period fixed represents a ratio of approximately two thirds rather than the statutory ratio of 75 per cent. Bearing in mind the respondent's age, the fact he was in gaol for the first time and his mental and physical health problems that cannot be said to be an error. In R v Cramp [2004] NSWCCA at [31] it was pointed out that the adjustment of a non-parole period to reflect special circumstances raises many discretionary matters and an appellate court will be slow to intervene.

1. Even if the challenges to the sentences and non-parole periods could be established it would be appropriate to exercise the discretion of this Court to dismiss the appeal because of the delay, the pending release of the respondent, the position taken by the Crown at first instance and the medical condition of the respondent.

1. I would dismiss the appeal.

1. R A HULME J: I agree with Blanch J.

1. BELLEW J: I agree with Blanch J.

Decision last updated: 25 November 2013