R v Mason - [2000] NSWCCA 207

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Daniel MASON [2000] NSWCCA 207

FILE NUMBER(S):
60349/99

HEARING DATE(S): 29/05/2000

JUDGMENT DATE: 29/05/2000

PARTIES:
Regina
Daniel MASON

JUDGMENT OF: Sully J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 98/31/0501

LOWER COURT JUDICIAL OFFICER: Kirkham DCJ

COUNSEL:
D. Frearson - Crown
Ms R. Burgess - Appellant

SOLICITORS:
S. E. O'Connor - Crown
T. A. Murphy - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Sentencing Act 1989

DECISION:
Leave to appeal granted
Sentence quashed and in its place applicant sentenced to imprisonment for 5 years and 4 months divided between a minimum term of 3 years, to commence on 22 September 1998 and expire on 21 September 2001, and an additional term of 2 years and 4 months to commence on 22 September 2001

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60349/99

SULLY J
ADAMS J

29 May 2000

REGINA v Daniel MASON

JUDGMENT

SULLY J: On 11 February 1999 the present applicant, Mr Daniel Mason, appeared in the District Court before his Honour Judge McGuire of that Court. He was arraigned, and pleaded guilty to one count of aggravated assault with intent to rob. Such an offence contravenes s 95(1) of the Crimes Act 1900, and it attracts upon conviction a statutory maximum penalty of penal servitude, (now imprisonment), for 20 years.
Eventually, on 4 June 1999 the applicant appeared before his Honour Judge Kirkham in the District Court sitting at Gosford. He adhered to his plea of guilty; and his Honour Judge Kirkham heard accordingly evidence and submissions on sentence. His Honour proceeded, at once, and ex tempore to pass sentence.
Because this Court proposes to intervene and to alter in some respects the sentence imposed by his Honour Judge Kirkham, I would think it, for my own part, fair to preface what follows by acknowledging that his Honour, like all Judges of the District Court, particularly those sitting in circuits, was undoubtedly under considerable, and well recognised, pressure to deal expeditiously with all the matters in his list, and to give, therefore, if at all possible, judgment ex tempore.

The Court of Criminal Appeal is very free with the advice and direction and, indeed. correction that it gives to Judges of the District Court in respect of their sentencing; and it is, I think, only fair to acknowledge that in cases of which the present one is a good example, the Judge is operating under considerable pressure as to time and otherwise; and that it is necessary to read the remarks on sentence, and to analyse and if necessary to criticise them, with a sensible regard for the pressures under which they have been produced.
The relevant facts can be shortly stated as follows: On 13 November 1995 in the District Court at Liverpool the applicant was sentenced to imprisonment in respect of an offence of maliciously inflicting actual bodily harm with intent to have sexual intercourse.
He was sentenced to a minimum term of imprisonment of three years with an additional term of two years. He served the minimum term in the Mt Penang correctional establishment and was in due course released to parole. Three days after his release to parole he committed the offence in respect of which he stood for sentence on 4 June 1999 before his Honour Judge Kirkham.
The offence derived from an incident that occurred on 21 September 1998 at Somersby House where the applicant had become resident upon his release to parole. The applicant returned in the evening, as he conceded, at about 8pm to Somersby House where he had contact with Mrs Ingram, a lady aged some 58 years and then working as a carer at Somersby House.
The applicant was offered some food and he asked Mrs Ingram to make some sandwiches for him. She did so and took them to his room. She gave the sandwiches to the applicant, and turned to walk back in the direction of the dining room of the premises. The applicant asked her where the billiard cues were kept. She walked with him to the pool room of the premises and pointed out the cues standing against the wall.
At that stage the applicant was standing behind Mrs Ingram. There was some further desultory conversation, and Mrs Ingram started to walk towards the door intending to leave the room. As she did so the applicant came up from behind her, put her head into a head lock and placed one of his hands over her mouth. He told her not to make a noise and she would not be hurt. He dragged her towards the toilet off the pool room. Mrs Ingram, not surprisingly, was in a state of terror. She thought that she might well be assaulted sexually or even killed. It can be readily understood that it must have been for her a terrifying experience from first to last.
As the applicant and Mrs Ingram struggled, the applicant punched her with his fist in the mouth and left eye leaving the roof of her mouth, the top teeth and her gums sore, and causing a large amount of bruising and swelling to her left eye. Eventually, the applicant succeeded in getting Mrs Ingram into the toilet, where he left her shutting the door. Again he told her to keep quiet and she would not be hurt.
Presently, another carer arrived and Mrs Ingram was released. It seems that Mrs Ingram, although as I have said the experience must have been from first to last a truly terrifying one for her, did not suffer any significant physical injuries, and she does not appear to have suffered any on-going psychological or psychiatric injury.
In objective terms it could hardly be disputed that the offence, as I have described it briefly, was of the most serious kind. Mrs Ingram was in a position of particular vulnerability to occupants of Somersby House in the position of the applicant. She was in that position simply as the consequence of her presence at the premises as a carer seeking to help people, like the applicant, then resident at Somersby House. People in such a position of vulnerability are entitled, it hardly needs to be emphasised, to have the resolute protection of the law in respect of their physical safety.
The objective gravity of the particular offence was, of course, the greater having regard to the fact that it was committed at a time when the applicant was at liberty on parole, serving the additional term of an overall sentence that had been passed upon him in respect of a different kind of offence, but of an equally serious offence.
Put simply, three attacks are made upon the sentence actually passed by his Honour Judge Kirkham, being a sentence of penal servitude for five years and four months apportioned between a minimum term of four years and an additional term of one year and four months.
The first submission attacks the sentence upon the basis that it did not have proper regard to the principle of totality. The second submission attacks the sentence upon the basis it had no regard, or no proper regard, to the existence and effect of "special circumstances" in the sense contemplated by the Sentencing Act 1989. The third submission attacks the sentence upon the basis that it misconceives and misapplies the substance of the guideline judgment delivered by this Court, differently constituted, in R v Henry (1999) 46 NSWLR 346. It is convenient to look at each in turn of those submissions.
The submission having to do with totality rests upon this proposition: that the sentencing Judge ought to have treated the sentence passed by him as a sentence in fact cumulative upon the sentence passed upon the applicant in 1995; and that his Honour should therefore have reduced the sentence passed by him so as to take account of the total criminality involved in the 1995 and in the 1998 offences.
The principles which are bound up in the notion of totality of sentence are not in doubt and have been frequently restated by differently constituted Benches of this Court. A convenient point of reference in that regard is the judgment of the court in R v Close (1992) 31 NSWLR 743. At 757 there is an extensive reference by quotation to the relevant portions of the earlier decision of the Court in R v Glenister (1980) 2NSWLR 597 at 612-613. The material of which I speak is the material in the paragraph (39) in that quoted material at 31 NSWLR, 757.
It is not necessary to repeat the entirety of what is there stated; but it is, I think, particularly relevant for present purposes to take note of the concluding observations of the Court of Criminal Appeal on that earlier occasion. They are as follows:
"Nothing which we have said should be taken as suggesting that two independent crimes committed on different occasions may not properly attract a greater penalty than where both are part of a single criminal venture".
The present case seems to me to be one precisely of "two independent crimes committed on different occasions". I do not accept the submission that the two matters ought, as it were, to have been run together in a way that might have been thought appropriate had they been separate matters, but matters arising from a common factual background, or from a common course of criminal conduct. Nor do I think that it was appropriate to run the two discrete crimes together in a way that might have been appropriate had the sentencing Judge been dealing in a particular way with the thorny question of cumulative or concurrent sentences. I would myself not accept the submission that attacks the present sentence upon the basis that it did not give effect to the requirements of the law as to totality.
The attack made upon the present sentence in connection with the issue of "special circumstances" is not, as I think, so easily disposed of. It is convenient to begin by noting, as the submissions put for the applicant both note and emphasise, that the remarks on sentence do not in terms advert to the matter of "special circumstances".
It is true that there is reasonably long standing authority in this Court for the proposition that a primary sentencing Judge should in fact make a point "normally" of adverting in terms to the factor of "special circumstances". See R v Boo Too & Anor. I think that the decision of Boo Too cannot be taken so far as to support a proposition that the mere failure to make a specific reference to "special circumstances" will always, and in every case without exception, indicate the existence of appealable error.
I think that a fair reading of the decision in Boo Too warrants the view that it acknowledges in a broad practical sense the simple fact of appellate life, which is that in the absence of some fairly precise reference to "special circumstances", there will be almost inevitably a contention that the factor has either been overlooked, or not given sufficient weight; so that it is better from a broad practical point of view for every sentencing Judge to bow to the inevitable, and to make some specific reference, however formal, to "special circumstances". That is not to say, of course, that in any particular case there ought not to be some consideration given in fact to the matter of "special circumstances".
I would not myself infer that the learned sentencing Judge, a Judge of considerable experience if I may observe, simply overlooked the matter of "special circumstances" altogether. The impression that I have from reading what his Honour had to say in the remarks on sentence is that his Honour tended to see as artificial an extended consideration of "special circumstances" on the given facts of the present case: that is to say, in light of the facts that the applicant, having been released to parole for an expected additional term of two years, had not gone past three days of that parole before committing another serious offence.
It cannot be gainsaid that there were present on the given facts of the present case many things capable as a matter of law of constituting "special circumstances" in the relative statutory sense. The question for present decision seems to me to be whether it can be inferred from the remarks on sentence, comparatively brief as they are, that the learned sentencing Judge gave properly considered weight to those matters.
Because of the considerations with which I commenced the present judgment I am reluctant to hold that his Honour did not give "special circumstances" proper weight in the relevant scheme of things. But I have come, albeit reluctantly, to the view that the end result reached by his Honour warrants the drawing of an inference that his Honour cannot in fact have correctly collated and analysed the material available, - on the evidence before his Honour such as it was, - on the matter of "special circumstances".
I think that in connection with "special circumstances" it was indeed a matter calling for anxious consideration that the present applicant had gone into custody in 1995 at a time when he was aged 16 years, and that he had been aged a little more than 19 years when he committed the later offence. The effect of the 1995 and the 1999 sentences, if left to stand as they are at present, would be that the applicant, at the end of the completion of both such sentences, would have served all his late adolescence and some significant years of his young manhood, in unbroken custody.
That is a matter which I think needs, as I have said, careful and anxious consideration in the general scheme of things; and it is that consideration, as much as any other, which disposes me to the view that the factor of "special circumstances" did not, in the event, receive in the present case the weight that it ought properly to have been given. I shall return presently to say something more about the consequence which seems to me to flow from that conclusion.
Before doing that, I would advert briefly to the third of the principal submissions put in support of the application: that is to say, that the learned primary Judge misconceived and misapplied the guideline judgment in Henry. It is not necessary to set out in fine detail what his Honour actually said upon that point. I think a fair reading in context of what his Honour said indicates nothing more than that his Honour apprehended correctly that the decision, although it did not apply to a case on all fours with the case before his Honour, nonetheless was based upon a process of reasoning which might have been thought relevant in general terms, and helpful in some more particular senses, to the sentencing exercise upon which his Honour was embarking.
I do not think that it is correct to suppose that his Honour simply took the guideline judgement, treated it as though it was binding upon him, and applied it indiscriminately and inappropriately to the facts of the present case.
It is now necessary to consider what this Court should do in order to correct the error deriving from the inappropriate weighing of "special circumstances".
The first question to be decided in that regard is whether the overall sentence of five years and four months should be disturbed. I am of the opinion that it should not. I think that an overall sentence of that extent is entirely warranted by the objective gravity of the offence in question, even when that is appropriately counter-balanced by the subjective case to be made for the applicant.
Where I think it is possible to do something in aid of the applicant is in the apportionment of sentence between the minimum term and the additional term. In that regard it is fair to take note of the fact that the applicant while in custody has made marked efforts to deal with an alcohol problem from which he undoubtedly suffers, and otherwise to take advantage of the opportunities for rehabilitation that have been made available to him.
I think that his case, when one considers it in light of the report lately made available by Dr Westmore, is one in which it is fair to say that the applicant needs a longer than usual additional term, and a correspondingly shortened minimum term.
There is no point in pretending that that adjustment can be made in any precisely mathematical way. The Court must do its best to form a fair, but practical, judgment as to what the justice of the case might be thought to require. I myself am of the view that justice would be served by reducing the minimum term from four years to three years; and by extending the additional term from one year and four months to two years and four months.
I do not pretend that that is a perfect solution to a difficult problem; but I think that it holds in as practical a balance as an appellate Court can do, the need to vindicate the rule of law; the need to deter offences of the kind in question; but the need, also, to take account of the applicant's age; the conditions of his confinement; the steps that he has taken towards rehabilitation; his prospects, if he is given proper guidance and assistance, for further and hopefully complete rehabilitation.
I propose that leave to appeal against sentence be granted. I propose that the sentence imposed in the Court below be quashed, and that in its place the applicant be sentenced to imprisonment for five years and four months divided between a minimum term of three years, to commence on 22 September 1998 and to expire on 21 September 2001, and an additional term of two years and four months, to commence on 22 September 2001.
I would, myself, append to those orders a recommendation that Dr Westmore's report of 12 May 2000 should be placed with the applicant's correctional services file; and that all proper steps should be taken to ensure that he receives the assistance and the opportunities to which Dr Westmore refers, in particular at pp 4-5 of his report, under the heading "Opinion and Conclusions".
I propose orders accordingly.
ADAMS J: I agree and have nothing to add.
SULLY J: The orders of the Court, then, will be as I have announced them; and they will be accompanied by those recommendations.

**********

LAST UPDATED: 06/07/2000