R v McEvoy

[2010] NSWCCA 110

New South Wales
Court of Criminal Appeal

CITATION:	R v McEvoy [2010] NSWCCA 110
HEARING DATE(S):	9 February 2010
JUDGMENT DATE:	21 May 2010
JUDGMENT OF:	Grove J at 1; Simpson J at 2; RA Hulme J at 116
DECISION:	Crown appeal dismissed
CATCHWORDS:	CRIMINAL LAW – particular offences – supply prohibited drug – possess prohibited weapon without permit – malicious wounding with intent to cause grievous bodily harm - CRIMINAL LAW – Crown appeal against sentence – standard non-parole period – finding with respect to mid-range of objective seriousness – degree of specificity required – sentence in respect of malicious wounding offence manifestly inadequate – failure to accumulate in respect of firearms offence - CRIMINAL LAW – sentencing – discretion not to intervene where re-sentencing would interfere with rehabilitation process – appeal dismissed
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v Burgess [2006] NSWCCA 319 R v Carroll [2010] NSWCCA 55 R v Cheh [2009] NSWCCA 134 R v JW [2010] NSWCCA 49 R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 R v Wall [2002] NSWCCA 42 R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
PARTIES:	Regina (Applicant) Christopher James McEvoy (Respondent)
FILE NUMBER(S):	CCA 2009/5161
COUNSEL:	M Cinque (Applicant) M Thangaraj (Respondent)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) (Applicant) Ferns Aubrey Johnson (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/5161
LOWER COURT JUDICIAL OFFICER:	English DCJ
LOWER COURT DATE OF DECISION:	22 October 2009

2009/5161

GROVE J
SIMPSON J
R A HULME J

21 May 2010

R v Christopher James McEVOY

Judgment

1 GROVE J: I agree with Simpson J.

2 SIMPSON J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 against the asserted manifest inadequacy of sentences imposed upon the respondent in the District Court on 22 October 2009 following his pleas of guilty to three separate charges.

3 The charges were:

(i) supply prohibited drug (ecstasy);

(ii) possess prohibited weapon without permit;

(iii) malicious wounding with intent to cause grievous bodily harm.

4 Pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), five additional offences listed on a Form 1 were taken into account in sentencing. These were:

(i) a second offence of supply prohibited drug (ecstasy);

(ii) failure to keep firearm safely;

(iii) possess unregistered firearm;

(iv) possess ammunition without holding a licence to do so;

(v) be carried in a conveyance without the consent of the owner thereof.

5 The first offence charged (supply prohibited drug) carries a maximum penalty of imprisonment for 15 years; the second (possess prohibited weapon) carries a maximum penalty of imprisonment for 14 years and, pursuant to Pt 4 Div 1A of the Sentencing Procedure Act, is subject to a standard non-parole period of 3 years; the third offence (malicious wounding) carries a maximum penalty of imprisonment for 25 years and is subject to a standard non-parole period of 7 years.

6 On the supply drug charge, and taking into account the second similar offence, English DCJ sentenced the respondent to a fixed term of imprisonment for 12 months, to commence on 31 May 2008; on the second count, the prohibited weapon charge, and taking into account the three additional firearms offences, her Honour imposed a sentence of imprisonment for 4 years made up of a non-parole period of 2 years and an additional term of 2 years, commencing on 1 November 2008; on the third count, malicious wounding with intent, and taking into account the (unrelated) motor vehicle offence, she sentenced the respondent to imprisonment for 4½ years, made up of a non-parole period of 2 years and 9 months and an additional term of 1 year and 9 months, also to commence on 31 May 2008. The non-parole period expires on 28 February 2011, the total term on 30 November 2012. Despite the accumulation of the second sentence on the first and third, the sentences imposed in respect of the first and second counts are fully subsumed in that imposed in respect of the third count.

7 The total term of imprisonment is thus 4½ years with a non-parole period of 2 years and 9 months.

8 In arriving at these sentences, English DCJ allowed a reduction of 25 percent on the sentences she would otherwise have imposed in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. Her Honour found, pursuant to s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the proportion between the head sentence and the non-parole period there stated.

9 The Director of Public Prosecutions, who brings the appeal, contends that the sentences, in total, are manifestly inadequate, and that the sentencing process in respect of the malicious wounding and firearms offences miscarried in specific ways. He has identified seven separate grounds of appeal, to which I will return in due course.

10 The appeal was heard at a time of some uncertainty in the proper interpretation of the legal principles to be applied when this Court considers Crown appeals. For many years, the principles to be applied were those stated by Wood CJ at CL in R v Wall [2002] NSWCCA 42. Included in those principles was one that went by the shorthand “the double jeopardy” rule. This generally was taken to mean that, since a respondent to a Crown appeal was exposed for a second time to sentencing, the appellate court ought, if allowing the Crown appeal and increasing the sentence, nevertheless impose a sentence at the lower end of the properly available range, and even a sentence less than ought to have been imposed at first instance.

11 In 2009 the Crimes (Appeal and Review) Act 2001 was amended by the insertion of s 68A, which prescribed that an appeal court must not dismiss a Crown appeal against sentence, or impose a less severe sentence on such an appeal than it would otherwise consider appropriate, by reason of any element of double jeopardy involved in the respondent’s being sentenced for a second time. The provision was made retrospective to encompass any “appeal that was commenced but not finally determined before the insertion of the section” (cl 16, Sch 1). In earlier cases, issues arose as to the correct application of s 68A. Included in these were issues concerning its constitutional validity and the ambit of the prohibition on taking into account issues of “double jeopardy”. These appeals were heard by this Court, constituted by a bench of five, in R v Carroll [2010] NSWCCA 55; R v JW [2010] NSWCCA 49. Judgment was reserved. Those judgments were delivered, respectively, on 1 April 2010 and 22 March 2010. Any uncertainties attending the application of s 68A have been resolved.

12 Accordingly, and notwithstanding that it is generally desirable that Crown appeals be dealt with expeditiously, it was agreed that judgment in the present case ought be reserved until after judgment in those cases was delivered. That accounts for the apparent delay in resolution of this appeal.

The facts

13 The facts were put before the sentencing judge by way of an agreed statement. It recounts the following.

14 The drug and malicious wounding offences were committed on 16 April 2008.

15 In the evening of that date the victim of the malicious wounding, Matthew Bulmer, was at a hotel in Leura. With two others (Michael Conquest and Jennifer Sakkouri) the respondent drove to the hotel. He was a passenger in the vehicle. Mr Bulmer knew Mr Conquest and approached the group in the car park, and engaged them in conversation about the supply of a prohibited drug (cannabis). The respondent left the vehicle, entered the hotel, and then returned and re-entered the car. He again left the vehicle, and, without provocation, produced a folding knife which he used to stab Mr Bulmer, repeatedly, to the upper body, head and face, neck, and arm and in his open mouth. This last blow was of sufficient force to dislodge two teeth.

16 Mr Bulmer attempted to escape but the respondent continued the attack. Mr Bulmer was bleeding freely from his neck and other parts of his body. He was taken by ambulance to the Blue Mountains Hospital and transferred to Westmead Hospital, where he was examined and treated. He was admitted to the Acute Surgery Unit, and then the Intensive Care Unit. He underwent exploratory surgery the following day. He remained in hospital until 21 April. He has irreversible scarring to his neck, and suffered psychological distress.

17 This offence constituted the malicious wounding offence, count 3.

18 The respondent re-entered the vehicle and directed Ms Sakkouri to drive off without headlights. He directed her to stop while he discarded some clothing by the side of the road.

19 The respondent produced a plastic bag containing about 30 tablets, and gave one each to Mr Conquest and Ms Sakkouri. The tablets were the drug known as ecstasy or MDMA. He gave each another tablet, for which he received $25 from each.

20 The respondent directed Ms Sakkouri to drive to his home in Katoomba. The three entered the premises and the respondent again gave each of them an ecstasy tablet, again without charge.

21 These supplies constituted the first offence, count 1, and the second additional offence taken into account.

22 On 24 April 2008 police executed a search warrant at the respondent’s home. There they located the knife that had been used in the attack on Mr Bulmer, and also an unloaded .222 calibre rifle with scope attached. Possession of this weapon (without a permit) constituted the second offence. The rifle was not stored in a locked receptacle or secured. This constituted the first firearms offence taken into account.

23 Police also located a security box containing 183 rounds of rifle ammunition, for which the respondent did not hold a licence. This constituted the third offence taken into account in respect of these charges. The .222 rifle was not registered. This constituted the second offence taken into account.

24 The respondent was arrested on 31 May 2008 and refused bail. He remained in custody until sentenced on 22 October 2009.

The respondent’s personal circumstances

25 Before the Court were a Pre-Sentence Report prepared by the Probation and Parole Service dated 17 June 2009, and a report of Ms Anna Robilliard, a forensic psychologist, dated 11 June 2009. The respondent gave oral evidence, as did his father. From this, the following history emerges.

26 The respondent was born in October 1982 and was 25 years of age at the time of the offences.

27 He is the oldest of five siblings. His early life was unremarkable, his family supportive and close. None of his siblings has had any encounter with criminal law. He left school in Year 10 and gained trade qualifications working with his father in the printing industry, in which he worked consistently for several years. He left that employment and has had little steady employment since. He described himself as, at the time, unmotivated.

28 He began using alcohol as soon as he left school and also took up the use of marijuana from which he graduated to amphetamine use. He has tried other drugs, but these have not caused any real problems.

29 He has had one significant relationship, which lasted about three years, and which terminated against his wishes, at the instance of his partner. He found the termination difficult to accept, the more so when his former partner formed a relationship with a friend of his.

30 He has a record that commenced in the Children’s Court in 1999, with an offence of obtaining money by deception (for which he was cautioned), followed, in 2000, with offences of assault occasioning actual bodily harm and common assault. There are a number of motor vehicle offences, including driving an unregistered and uninsured vehicle, driving whilst unlicensed, driving with the prescribed concentration of alcohol, trespass, and take and drive conveyance without the consent of the owner.

31 For the last of these he was ordered to perform community service, an order that was current at the time he committed the present offences. His response to this order was described by the author of the Pre-Sentence Report as unsatisfactory. It was revoked on 16 July 2008, and he was sentenced to imprisonment for 2 months for that offence.

32 Ms Robilliard’s report is dated 11 June 2009, more than a year after the offences. She recorded the respondent’s account of the malicious wounding offence, in which the respondent attributed the initial aggression to Mr Bulmer. He told Ms Robilliard that he was intimidated by Mr Bulmer, who was bigger and taller than he, and probably 25 kilograms heavier.

33 Ms Robilliard discussed the respondent’s drug and alcohol use. He told her that he had, whilst in custody, attended Alcoholics Anonymous meetings when held in prisons where they were available. He had attended some informal drug and alcohol meetings.

34 However, Ms Robilliard said that he was “ambivalent” to the suggestion that a period of intensive residential substance rehabilitation post release might be helpful. She said that he had little insight into his addictive behaviour, and no understanding of the benefits of structured rehabilitation.

35 She considered him to be “soundly intelligent”.

36 The author of the Pre-Sentence Report noted the Community Service Order entered on 16 January 2008, described the respondent’s performance as “unsatisfactory”, and recorded that it was revoked on 16 July 2008, and the respondent sentenced to imprisonment for 2 months.

37 Also before the Court was a letter written by the respondent after he had spent 12 months in gaol on remand. He wrote of the impact that incarceration has had upon him, and of his embarrassment and disgust at his conduct. He attributed his criminal conduct to the break up of his relationship, to his alcohol problem, and to his amphetamine use.

38 He said that, while in prison, he had attempted to “do the right thing”, by keeping himself busy with work; he had sought counselling for drug and alcohol and other issues and said he would continue to do so.

39 He expressed regret for his crimes, and in particular the attack on Mr Bulmer.

40 He did, however, say that he had been “approached and intimidated upon”. This reflected something he had said to Ms Robilliard, the psychologist. She recorded the respondent’s account of the encounter with Mr Bulmer as having begun with Mr Bulmer “chest butting” him, which provoked him and caused him to “overreact”.

41 Both are inconsistent with the agreed facts that were put before the judge, which expressly stated that the respondent’s approach to Mr Bulmer was “without provocation”.

42 The respondent gave evidence in the sentencing proceedings. When asked about the firearms, he said that, at that point, he had become involved with “a bad group of people, the wrong crowd”, and he was consuming drugs; but he added that there was no need for him to have the weapons. He said that he acquired them “just as collectables”.

43 In cross-examination he maintained that Mr Bulmer had “chest butted” him, and that, by reason of Mr Bulmer’s greater size and strength, he had felt frightened, intimidated, and had panicked. He elaborated on the “chest butting”, by saying that Mr Bulmer had, in a threatening manner, approached the vehicle while he (the respondent) was seated in the rear, that the respondent had alighted from the vehicle and was standing when Mr Bulmer used his chest to thrust the respondent up against the vehicle.

44 He also said that he had changed his mind about participating in rehabilitation courses, and now wished to do so.

45 His father’s evidence was brief. He said that he has visited the respondent on a weekly basis since his imprisonment, usually with his daughters. He had noticed “a lot of changes” in the respondent. He said that his attitude had changed, he was remorseful, had admitted that what he had done was wrong. His father expressed the view that, prior to his incarceration, “his attitude was all wrong”, but that imprisonment was “probably the best thing that’s happened to him for a long while”. He said that the respondent had employment available to him, and that he would provide him with accommodation and financial support.

The remarks on sentence

46 English DCJ recounted the facts, drawing on the agreed statement of facts, including mentioning that the attack by the respondent had been without provocation.

47 She then outlined the respondent’s personal circumstances.

48 Having regard to the grounds of appeal, it is convenient here to extract certain passages from her Honour’s remarks.

49 Of the malicious wounding, she said:

“I find it was an unprovoked attack upon an innocent victim, a complete stranger. The wounds were numerous but not life threatening … no victim impact statement has been tendered and nor is there evidence available to suggest that the ongoing disabilities or emotional harm are substantial.”

50 She referred to the respondent’s criminal antecedents, and held that they did not disentitle him to leniency. She accepted that he was “truly remorseful and contrite” and demonstrated victim empathy. She found that his prospects for rehabilitation were good and that he had commenced the process, demonstrating some insight. She found that he was unlikely to re-offend.

51 She dealt firstly with the offence of malicious wounding. She noted that general deterrence must play “a large part” in the selection of sentence, but that specific deterrence was not so important.

52 As to the objective seriousness of that offence, she said:

“As to where on the scale this matter falls the offence is one which attracts a standard non-parole period of seven years imprisonment for an offence said to fall within the mid-range of objective seriousness following upon a guilty verdict after trial. This was a frenzied attack with a knife but fortunately the injuries sustained were not as serious as is all too often the case. There has also been a plea of guilty. They are matters which reduce the objective seriousness of the offence and having given consideration to those matters and subjective circumstances of the offender I find it is a matter which falls below the mid-range of objective seriousness envisaged by the legislator (sic) …”

53 As to the drug supply offences, she said:

“These are offences which took place at the time of the malicious wounding, they are not the most serious examples of their kind. The quantities were not significant, they fall towards the lower end of the scale for like offences.”

54 She then turned to the firearms offences, which she characterised as “very serious”. She said:

“The substantive offence is one which falls towards the mid-range of objective seriousness. It is also an offence which attracts a standard non-parole period of three years for an offence which is said to fall within the mid-range of objective seriousness following upon a guilty verdict after trial. Here there is a plea of guilty and I have found that it is less than a mid-range offence …”

55 She made a finding of special circumstances, as a result of which she varied the s 44(2) ratio. She held that “there must be partial accumulation” of the malicious wounding and firearms offences sentences, because “they are quite separate and distinct offences”. She held that the drug offences were “part and parcel” of the malicious wounding incident, committed at the same time during a period of criminal conduct, and therefore justifying concurrency of sentencing.

56 Finally, she said:

“… a community service order was revoked and he was ordered to serve a sentence of two months imprisonment between 25 June 2008 and 24 August 2008. That was an inevitable outcome because of his incarceration. Having regard to the principles of totality it is appropriate that that sentence be subsumed in the other sentences to be imposed.”

57 She referred to the conflict in the evidence concerning the events at the hotel, but did not make any findings of fact in that respect. I have, however, already extracted the passage in the remarks in which she expressly accepted that the attack was an unprovoked one on an innocent stranger.

58 She found that the malicious wounding offence was spontaneous, involving minimal planning, by a drug-affected offender, who, she said, may have been suffering from delusional paranoia as a result of his long term amphetamine abuse. She regarded neither of the latter circumstances as mitigating the objective seriousness of the offence.

59 She allowed a 25 percent reduction in the sentences she otherwise would have imposed by reason of the early plea of guilty (Thomson and Houlton).

60 It was at that point that, she held that the offence fell below the mid-range of objective seriousness contemplated in s 54A of the Sentencing Procedure Act. She noted that the offence taken into account was unrelated, and not such as to call for significant increments.

The appeal

61 For the purposes of the appeal, the Court received an affidavit sworn by the respondent, on 9 February 2010, deposing to his current circumstances. It was recognised that this evidence is available to be used only in limited circumstances: where the Court concludes that a sentence, or the total sentences, imposed were infected by error such as to call for re-sentencing; and in consideration of the discretion that resides in this Court to decline to intervene in a Crown appeal even where error is demonstrated (and which, following the decision in JW, this Court retains).

62 Bearing in mind those limitations, it is convenient here to note its contents.

63 The respondent recounted his incarceration history; he has been accommodated in four different gaols. He said that he had attended Alcoholics Anonymous meetings, completed short courses in computers, mathematics and English, the “Enough is Enough” programme, and alcohol and other drug courses.

64 He currently works in the prison hospital at the Long Bay Correctional Centre. From there he has received uniformly glowing reports from four different officers.

65 He has been described by one as “an asset” in the day to day running of the reception room, where he had worked for 11 months at the time of the report, “a pleasure” and as acting with “utmost professionalism”. Another said that the work demands are high, the hours long, requiring “a person with the right attitude and commitment”. That officer added “one can not fault his work ethics, application or behaviour”.

66 It is unnecessary to detail other reports, which are entirely consistent with these.

67 On behalf of the Crown, seven grounds of appeal were asserted. They were:

“1. Her Honour erred in her consideration of standard non-parole principles in respect of the malicious wounding with intent to do grievous bodily harm offence.

2. Her Honour erred in her findings regarding the objective seriousness in respect of the malicious wounding with intent.

3. Her Honour failed to impose a sentence that reflected the objective seriousness of the malicious wounding offence.

4. Her Honour erred in her consideration of standard non-parole principles in respect of the firearms offence.

5. Her Honour erred in her reasoning for subsuming a sentence of two months’ imprisonment for the offence of ‘take and drive conveyance’ in the sentences she imposed.

6. Her Honour erred by failing to order effectively that the sentence for the firearms offence should be partially accumulated on that for the malicious wounding with intent offence.

7. Her Honour erred in imposing an effective total term and effective non-parole period which were manifestly inadequate.”


Malicious wounding: grounds 1, 2 and 3

Ground 1 – standard non-parole period principles

68 The standard non-parole period for the offence of malicious wounding is imprisonment for 7 years. The non-parole period imposed upon the respondent was 2 years and 9 months.

69 Following the introduction of Pt 4 Div 1A of the Sentencing Procedure Act, this Court spelled out, in some detail, the approach to be taken to its construction and application: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168. The propositions there stated were encapsulated in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575.

70 The Crown contends that her Honour erred in a number of respects in the consideration she gave to the standard non-parole period. For example, she expressly stated that the plea of guilty reduced the objective seriousness of the offence. That is incorrect. Factors that affect the evaluation of objective seriousness include the actus reus, the consequences of the conduct, factors impinging on the mens rea, and matters of motivation, mental state, mental illness or disability: see Way, [84]-[88]. The plea of guilty is not a factor that affects objective seriousness, although it is a matter which permits departure from the standard non-parole period.

71 The Crown also contended that her Honour took into account the respondent’s personal circumstance for the same purpose. If she did so, that, too, would be incorrect. On analysis of the remarks, I think it is correct that she did so. In a passage already extracted, her Honour said:

“They [the limited consequences of the offence and the plea of guilty] are matters which reduce the objective seriousness of the offence and having given consideration to those matters and subjective circumstances of the offender I find it is a matter which falls below the mid-range of objective seriousness envisaged by the legislator (sic).” (italics added)

72 Ground 2, although it does not say so explicitly, appears to be intended to challenge the finding that the offence was below mid-range, by asserting that it was in the circumstances, not open to the judge to make such a finding. In written submissions, it was argued that there were a number of matters that would have appropriately led to a finding that the offence fell within the mid-range. These were listed as:

“(i) the degree of violence used and the ferocity of the attack;

(ii) the number, severity and location of the stab wounds;

(iii) the actual use of a weapon, being a knife;

(iv) the continuation of the attack even though the victim tried to escape and the infliction of further wounds;

(v) the cessation of the attack (i.e. after its continuation) due only to the intervention of others;

(vi) the respondent left the victim bleeding heavily but did nothing to render assistance;

(vii) the serious scarring sustained by the victim as a result of the wounds;

(viii) the ongoing emotional distress occasioned by the attack.”

73 Although items (vii) and (viii) may, to an extent, overstate the evidence, there is, nevertheless, considerable merit in the Crown’s argument. It is difficult to see how this offence could properly be held to be anything less than mid-range.

74 The Crown also contended that the sentencing judge failed properly to state where in the range of objective seriousness the offence stood and failed to give reasons for finding that it fell below the mid-range.

75 Authority was cited for the proposition that it is necessary for a sentencing judge to state “with precision” where in the scale of objective seriousness an offence lies: R v Cheh [2009] NSWCCA 134 at [22], per McClellan CJ at CL; R v Knight; R v Biuvanua [2007] NSWCCA 283; (2007) 176 A Crim R 338 at [4] per McClellan CJ at CL (but see also Howie J at [39]).

76 In Knight, the sentencing judge described the objective seriousness of the offence as:

“… at least in the mid-range of objective seriousness.”

77 Of this, Howie J said:

“… it is impossible to understand how such an assessment fulfils the obligation on a trial judge in applying the standard non-parole provisions to assess the objective seriousness of the offence committed. Presumably the Judge thought that the offence was somewhere above midrange but believed that she did not have to assess the exact level of seriousness because it was sufficient that she found it was ‘ at least mid-range ’. But with respect, if that is how her Honour approached the matter, she was clearly in error. Although such an assessment cannot be made with absolute precision, it must at least indicate whether the offence is assessed as below, of, or above midrange of seriousness with some indication as to the degree to which it departs from the midrange if that is the finding.”

78 In the same case McClellan CJ at CL said:

“4 Where a sentencing judge contemplates imposing a sentence which is significantly less than the standard non-parole period it is prudent for the judge to closely examine the relevant findings before finally determining whether the proposed sentence is appropriate. Of particular significance will be the finding in relation to the objective seriousness of the offending. That finding must be carefully considered and appropriately described. A finding of ‘at least mid range’ suggests that the sentencing judge is of the view that the offence is above the mid range. If that is the case the finding should make this apparent and define the extent to which it falls above the mid range …” (italics added)

79 It will be observed that the extracted passages disclose some difference in the definition of what is required between McClellan CJ at CL and Howie J. In Cheh, McClellan CJ at CL returned to the theme. In that case, the sentencing judge had said:

“In looking to objective seriousness it seems to me that this falls somewhere in the mid-range of objective seriousness and perhaps slightly below the mid-range of objective seriousness …”

80 His Honour said:

“22 As I have indicated there are multiple problems with these remarks. Her Honour in considering the objective seriousness of the offence did not apparently have regard to the principles discussed by this Court in [ Way ] … her Honour did not explain, in any satisfactory way, her reasons for this conclusion. The conclusion itself was inadequate; the offence was either within the mid-range or it was not and her Honour should have turned her mind to this question with precision …”

81 He then referred to Knight and Biuvanua. During the hearing of the appeal the Court indicated that it would be assisted by more detailed submissions concerning what is required by way of definition of the level of objective seriousness of an offence to which Pt 4 Div 1A applies. Further submissions were received from the Crown. Before moving to the additional authorities cited it is convenient to repeat the legislative provisions which are the foundation for the decisions. Section 54A(2) of the Sentencing Procedure Act provides:

“(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.”

82 Section 54B(2) provides:

“(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.”

83 Sub-section (3) specifies that the only reasons for which the court may depart from the standard non-parole period are those referred to in s 21A. However, this does little to limit the circumstances that can be taken into account. Section 21A(2) lists the aggravating factors that must be taken into account, and s 21A(3) lists the mitigating factors that must be taken into account. But s 21A(1)(c) requires the court to take into account “any other objective or subjective factor that affects the relative seriousness of the offence” and states that the matters to be taken into account are in addition to any other matters required or permitted to be taken into account under any Act or rule of law. In Way this Court said:

“72 It is evident that the sentencing exercise which is now required for Table offences requires a critical focus, not only upon the objective seriousness of the particular offence before the Court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified.”

84 In R v Burgess [2006] NSWCCA 319, the judgment does not disclose precisely the finding made by the sentencing judge. But the Court said:

“45 The Judge failed anywhere in his sentencing remarks to indicate the level of seriousness of the offending except in the most general terms. There is no indication of whether he viewed it as in the mid range of seriousness or above or below that point. This is an important step in determining the appropriate sentence notwithstanding that the standard non-parole period might be reduced by reason of a plea of guilty and other matters of mitigation. The Judge did not give any reason for his failure to impose a standard non-parole period other than to indicate that, because the respondent had pleaded guilty, the standard non-parole period was ‘no more than a reference point for the assessment of the appropriate sentence’. It has been made clear more than once that the fact that the offender has pleaded guilty does not relieve the sentencing judge from indicating where in the range of offending the particular offence falls and the reasons for coming to that conclusion. The Judge in the present case made no attempt to comply with s 54B(4).”

85 And in R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94, where the judge had (like the sentencing judge in Knight), found that the offence fell within “at least the mid-range of objective seriousness”, and that it was, overall, “an offence of very substantial seriousness”. Leaving aside any question of inconsistency between these two observations, Howie J held:

“25 The Judge was also in error in a more substantial way in failing to make a specific finding as to where the offence fell in the range of offending covered by the section. It was not sufficient for her Honour merely to find that the offence was within ‘at least the midrange of objective seriousness’ … Such a finding seems to suggest that her Honour thought it was sufficient to determine whether the offence was at least of mid-range seriousness rather than to go further and indicate whether, and to what degree, it was above that range. The finding was inconsistent with the further finding that the offence was ‘of very substantial seriousness’. With respect the latter finding was correct: the former was not.”

86 Although I perceive some practical difficulties in the application of these strictures, it is not for this Court as presently constituted to depart from considered principles stated and accepted by previous Benches. Counsel for the Crown was unable to specify just what application of these decisions would involve. Despite his use of the words “with precision” (in relation to the judge’s thought processes) I do not understand McClellan CJ at CL to have intended to require specification of a mathematical formula. It would, in my view, be sufficient for a sentencing judge to indicate that a particular offence was significantly above or below mid-range, slightly above or below mid-range, or at the top or bottom of the range.

87 For my part, if, and if so, to the extent that it may be perceived that there is any conflict between the approaches taken by McClellan CJ at CL and Howie J, I prefer the slightly less prescriptive approach of Howie J. It would be sufficient in my view for a sentencing judge to describe the extent or degree for which the offence departs from a notional offence in the mid-range of objective seriousness.

88 Even on this standard the finding falls short of what is required. It gives no indication whether the offence fell substantially, significantly, or slightly below the notional mid-range offence.

89 The error so identified is an error of process. It does not necessarily follow that the finding was wrong. It is not every error of process that will result in a conclusion that the sentence ultimately imposed was erroneous, either manifestly excessive or manifestly inadequate. Here, the complaint about process was put in the context of a contention that, because the non-parole period imposed was so far below the standard non-parole period, her Honour must have failed to treat the standard non-parole period as a reference point. In effect, the error was pointed to as indicative of the reason for what was the core contention of the Crown, that is, that the non-parole period imposed was manifestly inadequate.

90 It is because the standard non-parole period is to be treated as “a reference point, or benchmark, or sounding board, or guide post” (Way, [122]) that this Court has required some specification of where in the range of objective seriousness an offence lies. Leaving aside other relevant factors, such as personal circumstances, one would expect an offence classified as substantially below the mid-range of objective seriousness to incur a sentence substantially below the standard non-parole period; an offence slightly below mid-range of objective seriousness to incur a sentence slightly below the standard non-parole period; and the converse where the offence is slightly, significantly, or substantially above the mid-range of objective seriousness.

91 In fact, taking the approach proposed by Howie J provides some check against error. If an intended sentence has a non-parole period substantially below the standard non-parole period, but the offence is held to be slightly below the mid-range of objective seriousness, then a sentencing judge would be wise to examine whether other factors (for example, personal circumstances) warranted that differential. If they do not, the sentence should be re-considered: see Way, [124].

92 Here, the non-parole period imposed was 2 years and 9 months, against a standard non-parole period of 7 years: that is, just under 40 percent of the standard non-parole period.

93 The nub of the Crown’s argument is that the differential between the non-parole period imposed and the standard non-parole period of itself demonstrates a failure to give appropriate weight to the standard non-parole period.

94 As Way explains, the standard non-parole period was intended to apply to convictions after jury trial. An offender who has pleaded guilty could expect a reduction in sentence, along the lines stated in Thomson and Houlton, of between 10 and 25 percent. Here, the sentencing judge allowed a reduction of 25 percent and, for the purpose of this argument, that can be applied to the standard non-parole period of 7 years. That gives a benchmark or reference point of 5 years and 3 months. The non-parole period of 2 years and 9 months represents just 52 percent of that sentence. The personal circumstances, although reasonably favourable at the time of sentencing, were not sufficient to justify a departure of that magnitude. Nor was there anything else that would explain that departure.

95 Even accepting the finding that the offence was “below” mid-range of objective seriousness, on no view of the evidence could it be said that it was so far below mid-range as to warrant a non-parole period so substantially below the standard non-parole period reduced by 25 percent.

96 These conclusions inevitably lead to the further conclusions that ground 1 is made out, as are grounds 2 and 3.

The firearms offences

Ground 4
Ground 6

97 The complaint now made under ground 4 is in similar terms to that made under ground 1. The references in the remarks on sentence are not identical and need to be considered separately.

98 Having made observations about the seriousness of offences involving firearms, her Honour said:

“The substantive offence is one which falls towards the mid-range of objective seriousness … Here there is a plea of guilty and I have found that it is less than a mid-range offence …”

99 On behalf of the Crown it was contended that the statement that the offence “falls towards the mid-range of objective seriousness” was even more ambiguous than that considered above:

“… as it is not known on which side – above or below – of the ‘mid-range’ her Honour thought the firearms offence fell.”

100 The latter submission can not withstand scrutiny. In the passage complained of, it is, in my opinion, quite clear that English DCJ found that the offence was less than, although towards, the middle of the range. That is put beyond doubt two sentences later where her Honour explicitly said that she had found that it was less than a mid-range offence. In my opinion, “towards the mid-range” is sufficient to indicate a finding that the offence is, objectively, slightly below mid-range.

101 I would reject ground 4.

Ground 6: accumulation

102 Counsel for the respondent conceded that ground 6 is made out and that the sentence for the firearms offence ought to have been partially accumulated on that for the malicious wounding offence. In fact, her Honour expressed an intention to do so, and, in theory, did, but not in such a way as to create any effective accumulation. The drug and weapons offences were both subsumed within the sentence for the malicious wounding offence.

103 The concession is properly made. The firearms offence was entirely separate and distinct from the malicious wounding offence and ought to have resulted in a separate and distinct period of imprisonment.

104 The concession does not go so far as to accept that this error resulted in a manifestly inadequate sentence.

105 Since I have already concluded that the sentence imposed in respect of the malicious wounding offence failed adequately to reflect the objective seriousness of the offence (a finding no different to a finding that the sentence was manifestly inadequate) it must follow that failure to accumulate the firearms offence sentence resulted in a total effective sentence that was even more inadequate. No effective sentence at all was passed in respect of the firearms offence. I would find ground 6 to have been made out.

Ground 7

106 It follows from what I have said above that ground 7 is also made out.

Ground 5: the sentence imposed in respect of the “take and drive conveyance” offence

107 I have extracted above a passage from the remarks on sentence which deals with this offence. The submission that was made was that her Honour was in error in saying that the sentence of 2 months’ imprisonment imposed on revocation of the Community Service Order “was an inevitable outcome because of his incarceration”. It was submitted, by reference to the Pre-Sentence Report, that the Community Service Order had been revoked as a result of the respondent’s unsatisfactory performance of it. Reference was made to the Pre-Sentence Report which said:

“The offender’s only previous contact with the Probation and Parole Service was with regard to a Community Service Order entered at Balmain Local Court on 16 January 2008. His response was unsatisfactory. On 16 July 2008 Katoomba Local Court revoked his Community Service Order and sentenced him to imprisonment for two months. He has been in custody on remand on the present offences since 31 May 2008.”

108 Whilst acknowledging that the asserted error was not one “of the magnitude of those asserted in grounds 1-4”, the Crown contended that it remained an indication that the sentencing process was affected by an aggregation of error.

109 Portrayal of the revocation of the Community Service Order as resulting from unsatisfactory performance presents a less than complete picture. The Pre-Sentence Report does assert unsatisfactory performance – but notes that the Community Service Order was revoked on 16 July 2008, the respondent having then been in custody in respect of the present offences since 31 May 2008. In the absence of further information, I would not be prepared to infer that the respondent’s performance of his obligations, prior to his arrest, was unsatisfactory. It is at least equally likely that the unsatisfactory performance resulted from his incarceration.

110 Of course, commission of these offences whilst subject to a Community Service Order was the reason for the respondent’s inability to perform community service as required, and is akin to the commission of offences whilst on conditional liberty, and should be so treated. It was, in a sense, a breach of the trust reposed in the respondent by his being given the benefit of a non-custodial sentencing option. It would have been open to her Honour to have specified a commencing date of the present sentences at the end of, or during the currency of, the 2 month sentence imposed in respect of the take and drive conveyance sentence. But, in my opinion, there is insufficient material before this Court to permit a conclusion that to do otherwise was not open. I would reject this ground of appeal.

111 As I have indicated above, I am satisfied that the sentencing process miscarried in respect of the malicious wounding offence, and resulted in a sentence that was manifestly inadequate, and that failure to accumulate in respect of the firearms offence exacerbated the inadequacy.

112 That would mean that this Court ought to intervene to correct the errors.

113 I have already referred to the additional evidentiary material filed on behalf of the respondent. That material is available to the Court to consider whether the residual discretion not to intervene ought to be exercised.

114 As I have indicated above, that material is quite exceptional. The reports from Corrective Services authorities indicate that the process of rehabilitation is well under way. I am satisfied that this Court ought not, at this stage, to interfere with that process being carried to its conclusion.

115 Accordingly, I propose that that Crown appeal be dismissed.

: I agree with Simpson J.

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