R v Merillo

[2017] NSWCCA 173

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	R v Merillo [2017] NSWCCA 173
Hearing dates:	26 June 2017
Date of orders:	19 July 2017
Decision date:	19 July 2017
Before:	Hoeben CJ at CL at [1] R A Hulme J at [89] Garling J at [90]
Decision:	Crown appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – recklessly cause grievous bodily harm – “glassing” incident in hotel – 2 year Intensive Correction Order imposed – whether sentence manifestly inadequate – whether sentence adequately reflected objective seriousness of offending – whether proper weight given to the standard non-parole period – whether general deterrence properly considered – very strong subjective case – use of glass not deliberate – genuine remorse – development of mental health condition since offence – sentence manifestly inadequate but residual discretion applied – Crown appeal dismissed.
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW) Crimes Act 1900 (NSW) – s 35 Crimes (Sentencing Procedure) Act 1999 (NSW) – s 3A Criminal Appeal Act 1912 (NSW) – s 5D
Cases Cited:	Blackwell v R [2012] NSWCCA 227 Butters, Jarrod Dean v R [2010] NSWCCA 1 CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Osborne v R [2015] NSWCCA 260 R v Barker [2016] NSWCCA 193 R v Begbie [2001] NSWCCA 206; 124 A Crim R 300 R v Cahill [2015] NSWCCA 53 R v Dodd (1991) 57 A Crim R 349 R v Loveridge [2014] NSWCCA 120 R v Mulligan [2016] NSWCCA 47 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60 Reberger v R [2011] NSWCCA 132 Sayin v R [2008] NSWCCA 307 Whelan, Heath Andrew v R [2012] NSWCCA 147
Category:	Principal judgment
Parties:	Regina – Applicant Crown Christopher Merillo – Respondent
Representation:	Counsel: S Hughes – Applicant Crown G Smith SC/A Hallas – Respondent   Solicitors: Solicitor for Public Prosecutions – Applicant Crown S Diab – Respondent
File Number(s):	2015/93415
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 06 March 2017 Before: Hunt DCJ File Number(s): 2015/93415

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentences

On 1 August 2016 the respondent pleaded guilty in the Campbelltown District Court to an offence of recklessly cause grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of imprisonment for 10 years with a standard non-parole period of 4 years.

2. Sentence proceedings took place on 13 October 2016 before Hunt DCJ. The matter was adjourned to 8 December 2016 on which date his Honour ordered the respondent’s assessment for an Intensive Correction Order (ICO). His Honour had by that time determined that any period of imprisonment would not exceed a total of 2 years. On 6 March 2017 the matter again came before Hunt DCJ at which time his Honour imposed a sentence comprising an ICO for a duration of 2 years, subject to the mandatory conditions prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 (NSW).

3. The Director of Public Prosecutions has appealed pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against that sentence. The Notice of Appeal was signed on 31 March 2017 and was served upon the respondent on 3 April 2017.

4. The Director relies upon a single ground of appeal, i.e. that the sentence imposed is manifestly inadequate.

Factual background

5. There were before the court a statement of Agreed Facts, CCTV footage of the offence and medical reports concerning the injuries to the victim.

6. The victim with a few of his friends attended the Camden Hotel at approximately 9pm on Saturday, 28 March 2015. During the course of the evening, the victim had consumed approximately 12 alcoholic drinks while drinking with his friends, both at the hotel and elsewhere in Sydney earlier that evening.

7. The respondent spent the afternoon in the company of friends. They first attended other licensed premises in the Camden area and consumed a number of drinks and later arrived at the Camden Hotel between 10pm and 11pm approximately. The respondent continued consuming alcohol.

8. At about 11.45pm the victim was on the dance floor with two female companions. The hotel was busy and a large number of patrons were on the dance floor and its immediate environs. The area was covered by CCTV cameras. The victim and his friends were dancing somewhere in the vicinity of the DJ booth. The respondent was also on the dance floor at this time. He was wearing a white T-shirt and the DJ noticed him and his friends because they had been leaving their glasses on the DJ booth. The respondent approached one of the victim’s female friends and was dancing close to her. This apparently made the young woman uncomfortable and she moved away from him. The respondent asked her name and she told him.

9. Because she felt uncomfortable, the young woman looked at the victim trying to communicate her discomfort to him. She apparently did not communicate it to the respondent. The victim understood and approached the respondent to tell him that the young woman was not interested in him. At the time, the respondent had a glass of beer in his hand. The victim spoke into the respondent’s ear because of the loud music.

10. They briefly exchanged words with each other. There was nothing aggressive about the body language of either of them at this point and the respondent and the victim stood away from each other at approximately an arm’s length. The respondent then moved swiftly towards the victim and head-butted him in the face. The victim stumbled back and put his arms out in front defensively. Several bystanders immediately tried to separate them and there was a violent struggle which lasted a few seconds. During the course of the struggle, the respondent threw several blows in the direction of the victim.

11. The respondent still had the glass in his hand. One of those blows struck the victim in the left side of his face and eye. The glass shattered and part of it became embedded in the victim’s left eyeball.

12. It should be noted that the Agreed Facts record in relation to the incident:

“… it is possible that he [the respondent] did not have regard to that fact during the course of the developing melee”.

The fact to which reference is made is that he still had the glass in his hand.

13. The victim immediately walked from the hotel bleeding from wounds to his face and left eye. The respondent and one of his friends also walked quickly away from the dance floor. He was pointed out by other patrons and was escorted from the hotel by security personnel. Police arrived shortly afterwards.

14. The victim sat with his friends outside the hotel until an ambulance arrived. He had no vision in his left eye at this point. He was taken to hospital and underwent surgery in an attempt to repair the injury to his eyeball and for the wounds to his face to be closed with sutures. The victim spent several days in hospital before his discharge with further treatment to follow.

15. The victim suffered a traumatic and severe injury to his left eyeball. The eyeball was surgically reconstructed. The victim has lost almost complete sight in that eye unless assisted by an external device described as a “hard contact lens”. With a hard contact lens, he has vision of reasonable function.

16. The victim has also been left with scarring around his eye and cheek from the wounds.

17. The respondent was interviewed by police. He agreed that he had been involved in the altercation, but said that when the victim spoke to him, he had felt intimidated. He told police that he had heard Camden was a violent place and that he thought he needed to deliver in effect a pre-emptive strike. He agreed when shown the CCTV footage that he had head-butted the victim. He denied “glassing” the victim deliberately, but acknowledged that he did have a glass in his hand immediately before the altercation.

18. The respondent had offered to plead to the s 35(2) count while the matter was before the Local Court. The Crown in due course accepted that plea in full satisfaction of the indictment.

19. The medical summary on admission to hospital provided by Dr Kumar, the victim’s treating ophthalmologist, was:

“There is a dense left central cornea scar, changing the clarity, shape and function of the cornea. Multiple surgeries may be required to recover vision. A full thickness cornea transplant will be necessary at the very least. Recovery can be prolonged (many years) with multiple office visits necessary. There is no guarantee of recovered vision after surgery and intra and post-operative risks are high.”

20. In a subsequent report, dated 29 July 2016, Dr Kumar said:

“With the contact lens in place he achieves a vision of 6/7.5 + 1 which is an excellent outcome given the significant severity of the full thickness superior corneoscleral injury. At present the cornea is stable but there are some intrastromal corneal vessels and a significant scar.

It is important that we keep in mind that his vision without correction is 6/24 which is very poor indeed. Additionally, he is not always capable of wearing the hard contact lens. Hard contact lens wear may also compromise the ocular surface over time.

It is still quite possible that given the severity of the original injury the cornea may decompensate and ultimately require a corneal transplant.”

21. In his Victim Impact Statement, the victim indicated how difficult and painful it is to insert and remove the hard contact lens. He also described how, after using the hard contact lens for some time, his eye became red and sore so that he had to remove the lens.

22. The doctor who admitted the victim on the night of the incident, described the facial lacerations, separate from the injury to the eye, as follows:

Large 7cm irregular laceration below left eye lid.

Multiple small penetrating lacerations, less than 1cm on forehead and left temple.

2.5cm laceration to left upper brow.

Superficial lacerations to left upper lid.

The presence of glass within wounds.

23. In summary, the doctor said:

“[The victim] sustained significant injuries to the face which will leave him with permanent scarring and possible disfigurement. If any foreign bodies remain in the wound they may migrate to the surface with time and require further excision.”

Proceedings on sentence

24. The sentencing judge assessed the objective seriousness of the offending. In order to do so, he watched the CCTV footage on a number of occasions. This footage confirmed for his Honour that there was nothing aggressive in the body language of either the respondent or the victim before the respondent head-butted him. Otherwise, his Honour found it difficult to make out a lot of detail, despite repeated viewing of the CCTV footage. His Honour noted that the entire incident occupied a matter of seconds, rather than minutes. I agree with his Honour’s assessment of the CCTV footage.

25. His Honour accepted that the injury was very serious and continued to significantly affect the victim.

26. The sentencing judge noted the concession by the Crown that there was no evidence that the use of a glass by the respondent was deliberate. His Honour accepted that the respondent, at the time he gave evidence in the sentence proceedings, had no recollection of the event, despite having watched the CCTV footage “hundreds of times”. His Honour concluded on all of the evidence that he was unable to make a positive finding beyond reasonable doubt that at the time the respondent struck the victim, he knew that he had a glass in his hand. Accordingly, the sentencing judge did not take the use of a weapon into account as an aggravating factor.

27. Against that background, the sentencing judge expressed his conclusion as to objective seriousness:

“Given the very limited lead up to the event, the fact that it was a spontaneous event and the fact that there was nothing aggressive to be observed about the offender in the lead up to the event, I am persuaded that the matter falls at slightly below the middle range of objective seriousness. Given the lack of other aggravating features and the fact that the Crown concedes that it is a mitigating feature that the offence was not planned, I also have regard to the very limited timeframe involved.” (Sentence judgment, 8.9-9.2)

28. In considering the respondent’s subjective case, the sentencing judge accepted completely the respondent’s evidence.

29. The respondent was aged 26 at the time of the offence and 28 at the time of sentence. His Honour concluded that the respondent was generally a person of good character and as a result was entitled to a level of leniency when weighing his subjective matters against the objective seriousness of the offence.

30. The sentencing judge accepted the respondent’s expressions of remorse as genuine. Those expressions included a statement which the respondent made to the court and a letter of apology, which was made available for the authorities to give to the victim. The respondent confirmed his repeated expressions of remorse, which were made to his treating psychologist, Ms Jackson. His Honour noted that he was able to take greater notice of the histories recorded by Ms Jackson because of the large number of attendances by the respondent on her.

31. The respondent’s family background had been somewhat difficult. He was estranged from his father, who left the family home at the age of 11, leaving the respondent’s mother to look after four children. When he was aged 13, his mother developed breast cancer which led to the family home being lost and the family experiencing a period of homelessness. This had occurred as a result of his mother’s illness and his father’s gambling.

32. The sentencing judge took into account that within 18 months of the offending, the respondent’s best friend had died crossing a train line when affected by drugs and alcohol and another close friend had died shortly before the offence as a result of a drug overdose. These losses had affected the respondent at the time of the offending.

33. The sentencing judge took into account that since the offence, the respondent’s relationship with his partner of seven years, whom he had planned to marry, had broken down. His younger brother suffered from gambling problems such as his father did and that was a further cause of concern to the respondent.

34. The sentencing judge accepted that the respondent had always been a hard worker and that from the time of his mother’s diagnosis with breast cancer, he had been responsible for the family’s wellbeing, particularly that of his mother and his two younger siblings. His Honour noted that this was not an empty assertion and that the respondent had purchased and continued to pay off, the home that he, his mother and other siblings live in. The respondent gave evidence that it was likely that the home would be lost if he were to be imprisoned. The respondent told the court that this would once again cause the family to be homeless.

35. The respondent relied on Exhibit 2, which his Honour described as:

“… a constellation of references, both from his ex-partner, his mother and a number of other members of the community who know him well. The references attract more weight than will often be the case because they are detailed, very varied in terms of their content and style but almost universal in their assessment that the way that the offender behaved on the evening in question, while accepting that it was seriously wrong and criminal, was very far away from the usual behaviour or character of this particular person. Most of those referees refer to what they assess to be very genuine statements of remorse for [the victim].” (Sentence judgment, 12.5)

36. His Honour noted that Ms Jackson, the psychologist, had set out in her reports comments made by the respondent about his level of distress at injuring another person, particularly his understanding that the victim suffered a serious injury resulting in permanent impairment. The respondent described to Ms Jackson, among other things, being desperate to know that the victim was okay and that he had been attending church and praying deeply for him. The respondent told Ms Jackson that his return to a church-going ethic had been effectively brought about by the way that he had behaved and how he now felt about it. There were continual recitations of remorse in her reports. The sentencing judge accepted these expressions of remorse as genuine and contrasted them with what he described as the “formulaic expressions of late remorse that are often considered by these courts” (Sentence judgment, 13.4).

37. The sentencing judge set out the following extract from Ms Jackson’s report of 21 September 2016 which supported that conclusion:

“Mr Merillo has exhibited a strong moral conscience during discussions in counselling through his frequently expressed concern about the victim and ongoing worry about how his actions and this situation has impacted upon his partner and family. Mr Merillo has time and again in counselling expressed deep feelings of shame, remorse and anguish about the fact that his choices/actions led to somebody being badly injured as well as sincere concern for [the victim’s] welfare and recovery.” (Report, p 7.3)

38. On the basis of the material referred to, the sentencing judge concluded that the respondent “is remorseful to a very high degree”. His Honour also concluded:

“That in combination with his desire to continue to get treatment in relation to his compromised mental health and issues to do with alcohol, which were clearly very much at the heart of this offence, his general pattern of work and his usual concern for others persuade me that he has very high prospects for rehabilitation.”

39. The sentencing judge determined that because of the objective seriousness of the offending, some form of custodial penalty was inevitable. On that issue, his Honour noted that Ms Jackson did not consider that the respondent had a pre-existing mental health disorder which would account for his attack on the victim on 28 March 2015. However, Ms Jackson concluded that since the incident, the respondent has been suffering from an adjustment disorder with mixed anxiety and depressed mood. His Honour went on to summarise Ms Jackson’s findings as follows:

“She makes observations about the likely effect of incarceration on him and the very negative effects that would likely have, including a risk of him being "at risk of experiencing a major mental and emotional breakdown, which could increase the risk of a suicide attempt”. Ms Jackson says that she had put the offender's solicitor on notice of her actual concerns. Ms Jackson describes the effect of any gaol sentence on [the respondent’s] family in some detail towards the end of her report.”

40. In the circumstances of this matter, the sentencing judge was not satisfied that the effect on the respondent’s family was such as to amount to “exceptional circumstances”. His Honour was, however, persuaded that:

“… if [the respondent] were to be or is ultimately to be sentenced to fulltime incarceration it is likely to mean that the family would lose their home again and I do have some regard to that issue.” (Sentence judgment, 14.6)

41. The sentencing judge referred to JIRS statistics which were placed before him by the Crown. His Honour accepted that they were at best a blunt instrument when it came to assessing a range of sentences and that it was very difficult to draw significant conclusions from them, absent additional detail. The statistics spanned the period March-April 2009 to March-April 2016. His Honour extracted from those statistics that 75% of offenders for this offence were imprisoned, 13% attracted a suspended sentence and 7% attracted an ICO.

41. His Honour also extracted from those statistics that 13 offenders had received sentences of between 19 and 24 months. Eight of the 13 had prior convictions of the same type for which they were sentenced. (Whether his Honour was aware of the limited utility of the “same type” criterion in the statistics is not apparent.) It was against that background that his Honour said:

“The exercise today is for me to determine whether any sentence for [the respondent] would exceed 24 months, having regard to a full utilitarian discount which I consider is appropriate of 25%. It is the fact that I will reduce any otherwise appropriate sentence by 25% which I consider is appropriate for the utilitarian value of the plea of guilty to the criminal justice system and as indicating [the respondent’s] acceptance of responsibility and his willingness to facilitate the course of justice.” (Sentence judgment, 15.4)

43. His Honour found:

“This is a matter in which I form the view that any period of imprisonment would not exceed a total of two years. The superior courts have made observations about the generally deterrent and specifically deterrent effect of sentences to be served by way of an intensive corrections order. This is a matter where I have carefully weighed all the purposes of punishment pursuant to s 3A of the Crimes (Sentencing Procedure) Act, including denunciation, retribution, rehabilitation, general deterrence and specific deterrence. General deterrence has weight in the equation given that offences of this kind are prevalent; that is reckless woundings out and about in licenced premises, usually involving, without any attribution of blame to this particular victim, usually involving people who are affected by alcohol on both sides.” (Sentence judgment, 15.6)

44. His Honour proceeded to direct that the respondent be assessed for an ICO, noting that it was not inevitable that he would serve his sentence in that fashion, but it was highly likely if the assessment came back positive. In due course, a positive result was obtained and his Honour imposed a 2 year sentence of imprisonment to be served by way of an ICO commencing 6 March 2017.

45. In reaching that conclusion, the sentencing judge had regard to the physical and emotional costs to the victim, the loss of the full use of his left eye and his slow recovery progress which had caused considerable grief and heartache, not only to him but to his family. The sentencing judge took into account the respondent’s prior good character and his past responsible behaviour, particularly in work and family spheres and evidence of his very considerable remorse. His Honour observed:

“… In matters such as this judges are asked to perform a difficult equation. Damage to a person’s health and happiness can never really be equated with a period of imprisonment, however served. No gaol term can return to the victim his enjoyment of life and those costs should never be measured simply by punishment meted out to the offender …” (Sentence judgment, 6.3.17, 2.1)

46. In imposing an ICO, his Honour took into account that although it reflected a significant degree of leniency, it was still a form of imprisonment and it had a significant punitive effect and reflected a range of purposes as identified in s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW).

THE CROWN APPEAL

47. The Crown accepted that it was necessary for it to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there was no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]).

48. The Crown noted that in a ground of appeal relying upon manifest inadequacy, it was not necessary to identify specific error, although the identification of specific error might assist to explain why a sentence was manifestly inadequate.

49. The Crown submitted that in this case the sentencing judge allowed the respondent’s subjective case to overwhelm essential considerations of the objective gravity of the offending conduct and the requirement for general deterrence. The Crown submitted that there were a number of aspects of his Honour’s approach to sentencing which demonstrated how his Honour fell into error in the ultimate sentence imposed.

Failure to adequately reflect the objective seriousness of the offending

50. The Crown submitted that there ought to be reasonable proportionality between a sentence and the circumstances of the crime and in particular, the seriousness of the crime viewed objectively (R v Dodd (1991) 57 A Crim R 349 at 354). The Crown submitted that when considering the objective seriousness of the offence, the sentencing judge accepted the seriousness of the injury but noted the absence of any premeditation or planning and the limited timeframe involved. The Crown submitted that what his Honour did not take into account was the absence of any provocation on the part of the victim and the violence associated with the respondent’s initial head-butting of the victim before delivering the blows which caused the eye damage. The Crown submitted that his Honour did not refer specifically to the fact that there were repeated blows by the respondent, which continued even while bystanders were attempting to separate him and the victim.

51. The Crown did not challenge his Honour’s finding that the use of a glass by the respondent was not deliberate and that the objective seriousness of the offending was slightly below the middle of the range for offences of that kind. The Crown argued, however, that the element of recklessness was clearly made out because as a matter of fact, a glass was involved. That was an important part of the offending to which his Honour gave only passing attention.

52. The Crown submitted that the 10 year maximum penalty and the 4 year standard non-parole period were important guideposts which indicated the seriousness with which offences contrary to s 35(2) of the Crimes Act were regarded by the community. That was reflected in significant penalties which were imposed for that offence (Reberger v R [2011] NSWCCA 132; Osborne v R [2015] NSWCCA 260; Sayin v R [2008] NSWCCA 307).

53. The Crown’s complaint was that these important features, together with the very serious injuries suffered by the victim, were not reflected in the sentence. The Crown submitted that the respondent’s powerful subjective case caused inadequate weight to be given to the objective circumstances of the offending, which in turn resulted in a failure to ensure reasonable proportionality between the gravity of the crime and the sentence imposed (R v Cahill [2015] NSWCCA 53). This resulted in a sentence which was manifestly inadequate.

Failure to give weight to the standard non-parole period as a statutory guidepost

54. The Crown submitted that although his Honour set out the maximum penalty and the standard non-parole period at the commencement of his sentencing judgment, he made no further reference to the standard non-parole period, nor the maximum sentence in his reasons. In particular, his Honour gave no explanation for how he took into account the standard non-parole period, given that his assessment of the objective seriousness was slightly below the mid-range. The Crown submitted that an assessment of seriousness of that kind made the standard non-parole period a particularly important guidepost in relation to the ultimate sentence.

55. On this issue, the Crown referred to R v Mulligan [2016] NSWCCA 47 where Harrison J (with whom Leeming JA and Johnson J agreed) said:

“29   It is an error for a sentencing judge to fail to take account of a specified standard non-parole period in determining an appropriate sentence. However, the mere failure by a sentencing judge specifically to refer to a matter to which consideration ought to have been given, or to which some reference might merely have been expected, such as a standard non-parole period, does not of itself amount to an error or constitute a ground of appeal. Rather, the failure to do so is a matter that might possibly or even reliably inform a different ground of appeal, such as a failure to give reasons or a complaint that a particular sentence is manifestly excessive or inadequate. That is what the Crown says occurred here. The Crown in effect contends that even if his Honour’s failure to refer to the standard non-parole period was not itself a discrete error, the absence of any mention of it bespeaks or at least suggests error, subsisting in the imposition of a sentence that was manifestly inadequate. The same may be said of a failure to record reasons for imposing a non-custodial sentence.

30   It is of course well accepted that a standard non-parole period is an important marker to be taken into account in the sentencing process. In my opinion, however, the proper characterisation of a failure to refer to a standard non-parole period is not as an error as such but as one possible indication that the sentence in question may be demonstrably erroneous. The issue of whether a standard non-parole period is or is not specifically mentioned involves no independent assessment or process of evaluation, in contrast, for example, to the expression of an opinion or finding with respect to the objective seriousness of an offence. I note in this context that the Crown specifically submitted that his Honour’s “failure to comply with sections 54B and 54C [was]... another step in a significantly flawed sentencing process.” In my opinion, his Honour’s failure to refer in terms to the standard non-parole period and his failure to record his reasons for ordering a non-custodial sentence in the present case should be treated in that way. The very sentence imposed by his Honour evidences a failure properly to take account of these things.

31   I would also in this context wish specifically to record that I would not lightly or hastily come to a conclusion that an experienced criminal lawyer and judge such his Honour would have been unaware of the importance of a standard non-parole period in sentencing a person for a serious offence where a standard non-parole period applied. The same may be said of the need to record reasons for imposing a non-custodial sentence. It is important to note that judges in all jurisdictions in general, but in the District Court in particular, with their significant workloads and correspondingly onerous responsibilities, ought not to be criticised by overly technical analyses of the minutiae of their remarks when somewhat broader and more significant factors are at play. In the present case it is also important to bear in mind that his Honour’s error was not in failing to mention or refer to the relevant standard non-parole period or to record reasons but in the extension of leniency that in the end could not be justified.”

56. The Crown submitted that having regard to the absence to any reference to the standard non-parole period, or the maximum sentence in the course of giving his reasons for sentence, it was apparent that his Honour gave insufficient weight to those important legislative guideposts, in particular the standard non-parole period. The Crown submitted that his Honour erroneously approached his task not as one of instinctive synthesis with the maximum penalty and the standard non-parole period as legislative guideposts but with a focus upon whether a total term of 2 years would be an appropriate sentence, thereby permitting the court to order that the respondent serve his sentence of imprisonment in the community.

Approach to authorities

57. The Crown submitted that apart from a reference to the JIRS statistics, his Honour made no reference to the authorities to which he had been taken in the course of submissions on sentence by the Crown. In particular, the Crown on sentence had handed to his Honour decisions in Butters, Jarrod Dean v R [2010] NSWCCA 1 and Blackwell v R [2012] NSWCCA 227. The Crown on sentence submitted that the facts and circumstances of Blackwell v R were “remarkably similar” to the present case and that his Honour could obtain assistance from the approach followed in that case. In making that submission, the Crown said:

“So your Honour of course will be cognisant of what the CCA says about the benefit that comparable cases are able to give to your Honour and no two cases are ever square with one another. But those particular sentences give your Honour some indication how similar cases to this have been dealt with in the past and why the Crown says your Honour would ultimately have difficulty in arriving at a sentence in this case which would approach that point at which alternatives to custody could even be considered by your Honour.” (T.13.10.16, p 8.39-.45)

58. The Crown submitted that the fact that the victims in those cases had lost the sight of an eye made little difference to the matters of principle involved, because here, the injury to the eye was very serious albeit not involving a complete loss of vision. The Crown submitted that while there were considerable limitations in relying upon a series of individual cases to establish a range of sentences, the fact that his Honour made no reference to those authorities in which considerably longer sentences were imposed for offences very similar to this, was a cause for concern.

59. The Crown submitted that rather than referring to the authorities, his Honour’s approach appeared to be confined by the consideration of whether any sentence would exceed 24 months. In that regard, the Crown relied upon R v Begbie [2001] NSWCCA 206; 124 A Crim R 300 where Mason P (with Dowd J agreed) said:

“34   The decisions of this Court in Jurisic and Regina v Thackray, CCA, unreported, 19 August 1998 explain in the clearest of terms that the legislative scheme relating to home detention requires the sentencing Court to determine and specify the appropriate sentence of imprisonment before it knows whether the offender will qualify to serve it by way of home detention and whether it is appropriate in the particular circumstances for such less onerous form of sentence to be served in that manner (see especially Jurisic at 214-5 per Spigelman CJ, at 249-251 per Sully J). It is a corollary that the Court should not tailor a sentence so that it might be served by home detention. The proper procedure is to determine the appropriate sentence ignoring the provision of home detention and to consider home detention only if the sentence to be imposed is less than eighteen months (Thackray).”

60. The Crown submitted that the starting point for the sentence imposed by his Honour before the deduction of 25% for the early plea of guilty was 2 years and 8 months, which was a somewhat odd starting point and was strongly suggestive of his Honour engaging in the very exercise which R v Begbie regarded as erroneous.

Failure to adequately reflect the principle of general deterrence

61. The Crown submitted that s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provided as one of the “purposes for which a court may impose a sentence” that there was a need “to prevent crime by deterring the offender and other persons from committing similar offences”. The Crown submitted that his Honour was bound to give effect to s 3A and recognise the importance of the principle of general deterrence.

62. The Crown submitted that while his Honour referred to general deterrence having "weight in the equation" at p 15 of the sentence judgment, he did not refer to any of the statements of principle of this Court about the importance of general deterrence in "glassing" cases, nor did he reflect those principles in his reasons. On that issue, the Crown relied upon the observations of Wilson J (with whom Macfarlan JA and R A Hulme J agreed) in Osborne v R:

“79   Indeed, so frequent have such offences become that they have attracted the colloquial title used by the applicant of "glassing". In Sayin .... this Court made it clear that sentencing courts "must impose very severe penalties". The same statement has been adopted and repeated in other cases involving the use of a glass as a weapon: see R v Spooner [2009] NSWCCA at [20], for example.

80   Whilst his Honour concluded – in the applicant’s favour – that specific deterrence was not a relevant consideration, he was very conscious of the need for the sentence imposed to import a significant element of general deterrence.

81   Arguably, in the seven years since Sayin was handed down, and despite the frequency with which similar statements have been subsequently made by the courts, the frequency with which offences of this nature occur has not diminished, particularly when they occur, as here, in licensed venues, where those involved are affected by alcohol.

82   There remains a continuing need for the courts to emphasise the horror with which the community views the use of a glass as a weapon, particularly when the glass is wielded with force at the head or face of another. Such offences should be strongly denounced, and others deterred from committing like crimes by the imposition of stern sentences.”

63. The Crown accepted that Osborne was a case which involved the deliberate use of a glass as a weapon and where the victim suffered facial scarring but no loss of sight or loss of an eye and that the conviction was for an offence against s 35(4) rather than s 35(2). Nevertheless, the Crown submitted that the principles stated by Wilson J were equally applicable to this case.

64. The Crown also relied upon the statement by the Court (Bathurst CJ, Johnson and R A Hulme JJ) in R v Loveridge [2014] NSWCCA 120, where their Honours said:

“108   ... this was a case where it was necessary for the sentencing Judge to emphasise the substantial role of general deterrence on sentence, and then to give effect to that important sentencing principle in the sentences actually imposed.

109   We are satisfied that the same error has been demonstrated here as occurred in R v Carroll at 59 [61]… A passing reference to general deterrence did not meet the requirements of sentencing principles in this case. Nor did the sentences actually imposed reflect that general deterrence had been taken into account in accordance with the law.”

65. The Crown submitted that the circumstances of this offence placed the offending in a category which should have attracted a significant element of general deterrence and the imposition of a sentence in accordance with the principles in Osborne and other similar cases. The Crown submitted that the sentence imposed by his Honour failed to apply the principle of general deterrence. A sentence of 2 years imprisonment to be served by way of an ICO did not meet the objective gravity of the offending, nor act in any way as a deterrent to the community at large.

66. The Crown submitted that the sentence imposed was well below the range of sentences in the cases to which his Honour was referred. The Crown submitted that the sentence imposed entirely failed to adequately reflect the objective gravity of the offending and principles of general deterrence. The Crown submitted that this appeal was brought for the purpose of engaging the discretion of the Court to intervene and set aside the sentence imposed upon the respondent because it was “plainly unjust” in that it was so far below the range of sentences that could justly be imposed, that it was likely to undermine public confidence in the proper administration of criminal justice.

67. The Crown submitted that uniformity of sentencing was a matter of great importance in maintaining confidence in the administration of justice. The Crown submitted that inadequate sentences gave rise to a sense of injustice, not only in those who were the victims of the crimes in question but also in the general community and were likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assisted in maintaining confidence in the administration of justice.

65. The Crown submitted that when proper regard is had to the objective seriousness of this offending, taking into account the relevant maximum penalties and standard non-parole period, and having proper regard to the respondent's subjective case, it is clear that the sentence imposed was manifestly inadequate.

66. The respondent submitted that the Crown’s submissions as to objective seriousness failed to give proper weight to the fact that the respondent’s use of a glass was not deliberate and that there was no finding that the respondent was aware that he had a glass in his hand when he struck the victim. The respondent submitted that this distinction was important and caused most of the cases to which his Honour was referred to be irrelevant. The respondent submitted that because the fact of the glass was not found by his Honour to be a matter in aggravation of the offence, this case was in a very different category to those to which the sentencing judge was referred.

67. The respondent submitted that while there was some leniency in the imposition of an ICO, when compared with a custodial sentence, the Crown’s submissions did not refer to those decisions of this Court which explained the usefulness of such a custodial sentence. The respondent submitted that an ICO was a substantial punishment which could be utilised in an appropriate case.

68. On that issue, the respondent relied upon R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60 where McClellan CJ at CL and Johnson J (Price, R A Hulme and Button JJ agreeing) said:

“106   It should be kept in mind that an ICO is a substantial punishment to be utilised in an appropriate case: Whelan at [120]. However, as with all sentencing options which do not involve immediate incarceration, it may also reflect a significant degree of leniency: Whelan at [120].

107   The severity of an ICO has been underscored in several Victorian decisions, to which Simpson J recently referred in R v Agius; R v Zerafa: R v Lanteri [2006] VSC 225 at [116]; Director of Public Prosecutions v Nikolic [2008] VSCA 226 at [21]; Director of Public Prosecutions v Karazisis [2010] VSCA 350; 206 A Crim R 14 at 50-51 [184].

108 It should be noted that the Victorian Parliament, in enacting the Sentencing Amendment (Community Correction Reform) Act 2011 (Vic), has since replaced ICOs with Community Correction Orders ("CCOs"). CCOs are intended as a substitute not only for ICOs, but other types of punishment to be served in the community. In the Second Reading Speech that introduced the corresponding Bill, the Victorian Attorney-General criticised ICOs for perpetuating the "legal fiction" that an offender subject to such an order is technically serving a term of imprisonment, despite living among the community: Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 15 September 2011, at 3292.

109   However, as we have noted, the stringent conditions attached to an ICO ensure that an offender subject to such an order is not living a carefree existence amongst the community. An ICO deprives an offender of his or her liberty in a real and not merely fictional sense.”

72. On this issue, the respondent also relied upon Whelan, Heath Andrew v R [2012] NSWCCA 147 where this Court (Schmidt J, with whom Allsop P and Davies J agreed) dismissed a Crown appeal where the offender had driven on the wrong side of the road overtaking a line of cars before colliding with another vehicle travelling the other way with the result that a near term unborn child in the other car was seriously injured and died within four days of birth. The trial judge had sentenced the offender to an ICO. Schmidt J said:

“120   It seems to me that the Crown's submission that an intensive correction order reflects a significant degree of leniency may be accepted, but that still it may not be overlooked that such an order involves a substantial punishment, properly available to be imposed in a case such as this, where her Honour came to the view that the appellant's offending was at the lower end of moral culpability. As discussed in the authorities, there will be cases where an error of judgment occurs in circumstances where the evidence establishes that an offender's moral culpability is low, even when a death has occurred. The authorities to which the Crown referred demonstrate that in some such cases, the imposition of a non-custodial sentence will not involve error.”

73. The respondent stressed the powerful subjective case which had been mounted on his behalf and in that regard, set out in considerable detail the matters which have already been referred to in that part of the sentencing judge’s reasons set out above.

74. The respondent submitted that an additional consideration was that the Crown did not at any time during the sentence submissions, submit in terms that his Honour would fall into appellable error if he imposed a less than fulltime custodial sentence. The respondent also noted the concession by the Crown in the sentence proceedings that because of his mental illness, the respondent’s time in custody would be more difficult than for other prisoners.

Consideration

75. In approaching a Crown appeal, I am conscious of the principles applicable. These were usefully summarised in R v Barker [2016] NSWCCA 193 (Hoeben CJ at CL with whom Bathurst CJ and Price J agreed) as follows:

“52 Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a “limiting purpose” for such appeals and, by contrast with the Court’s jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is “plainly unjust” by reason of its manifest inadequacy) for the mere “correction of error in the individual sentencing proceedings” Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8).

53 Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is “plainly unjust”) the Crown must:

(i)   Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);

(ii)   Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);

(iii)   Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed).

…

55 Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is “plainly unjust” and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R.”

76. I have concluded that despite the limiting principles which apply to appeals brought by the Crown, the present matter is one where the Crown has established that the sentence imposed was manifestly inadequate.

77. Even though the objective seriousness was below the mid-range, the surrounding circumstances, in particular the unprovoked nature of the attack, and the very serious injury and permanent impairment suffered by the victim, together with the two powerful guideposts which do not appear to have been appropriately considered, required the imposition of a custodial sentence. There were also, as the Crown submitted, strong indications that his Honour approached the sentencing exercise with an ICO in mind, rather than determining an appropriate sentence and then considering how the sentence should be served.

78. That does not end the matter. In the exercise of its jurisdiction under s 5D of the Criminal Appeal Act, the Court retains a residual discretion to decline to interfere with a sentence, even though the sentence is erroneously lenient (Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462). The Crown must negate any reason why the residual discretion of this Court not to interfere should be exercised (CMB v Attorney-General for the State of New South Wales [2015] HCA 9; 256 CLR 346).

79. In relation to the exercise of the residual discretion, the Court had before it an affidavit of the respondent, affirmed 15 June 2017. That affidavit indicated how stressed and anxious he had been during the six months over which the sentence proceedings had taken place. The respondent made it clear that his anxiety state had significantly increased when he was notified of the appeal.

80. It is clear from that affidavit and from other material, that in the three months that the ICO has been operative, the respondent has complied with all his obligations, including weekly community service. One of the sources of anxiety for the respondent is the financial fate of his mother and younger siblings if he is given a custodial sentence. This is because he provides the financial support for the family.

81. He continues to be extremely remorseful and continues to regularly attend his treating psychologist, Ms Jackson.

82. There was also before the Court an updated report from Ms Jackson, dated 14 June 2017. Her diagnosis of the respondent continues to be that of an “adjustment disorder with mixed anxiety and depressed mood, persistent, severe”. During 2017 there have been nine further consultations with the respondent, the most recent being 8 June 2017. The assessment of the respondent’s stress scale and anxiety scale on the occasion of the most recent consultation produced a score of “severe” for each condition.

83. Ms Jackson’s current assessment of the respondent is:

“I consider that Mr Merillo’s mental health is not stable and stationary. Since my last report, Mr Merillo has continued to report significant periods of severe anxiety, intense emotional distress, and sleep disturbance, as well as suicidal ideation on one occasion, all associated with the impact of attending the court sentencing hearing on 8/12/2016, subsequent court hearings associated with his sentence, and meetings with Dept of Community Corrections officers, and on 3/4/17 when notified of the appeal.

Mr Merillo attended his court sentencing hearing on 8/12/16. He later reported in counselling experiencing significant mental and emotional distress, anxiety and sleep disturbance during the 2 days prior to the hearing, as well as for about a week after the hearing. He said he used Valium to help with sleep for 2 nights prior to court.

…

Mr Merillo has also reported in counselling experiencing a very significant increase in distress and anxiety during, and severe anxiety, stress and sleep disturbance after, each interview with the Burwood Dept of Community Corrections Officers in September 2016, as well as on 3/1/17, 16/1/17 and 7/2/17. Mr Merillo said his increased stress was associated with being required to retell in depth the facts of this case, reflect on his experience and discuss his mental health problems over and over again. He said each time this brought up his intense distress about the offence, as well as the court experience over the last 2 years. Mr Merillo would usually schedule a counselling appointment as soon as possible after these interviews as his level of distress during the interviews and especially during the night following the interview was so extreme.

Mr Merillo attended counselling on 7/4/17 soon after being notified on 3/4/17 of the appeal. He said he had felt ‘really shattered’ on being notified of the appeal, so much so that he contacted his ex-fiancee for support. He said he had experienced some suicidal ideation as a result of shock and distress and talked this over with his ex-fiancee, who was able to help him through his initial intense reaction. He said he did not sleep on the evening of 3/4/17 as he felt so upset at having to go through another court process. He said that he was shaken up, very anxious and agitated at work for 3 days after being notified of the appeal. He said he had felt so “scattered” and sad that he was unable to talk to anyone for a few days. He felt so withdrawn. On 20/5/17 Mr Merillo said that in the previous 2 weeks he had ‘not been very good’ (mentally and emotionally). He said he thought his coping was ‘going downhill’; reporting very high anxiety and sleep disturbance

…

At the last counselling consultation on 8/6/17, Mr Merillo presented in a very high state of agitation and anxiety. Mr Merillo explained that he was very stressed and apprehensive about the appeal hearing but had also experienced a marked increase in anxiety at work since being assigned to a construction project at Campbelltown shopping centre. He said he has been experiencing anxiety driving to work as he had to drive down the road which leads to where he has attended court, as well as increased anxiety at work during breaks, as he fears running into the victim or the victim’s father in the shopping centre or its attached parking area where the worksite is located. He said he has been so anxious at work that he has to take some leave as he was finding it too hard to cope with his anxiety.”

84. In relation to the respondent’s current mental health, Ms Jackson said:

“Since 3/4/17, when he was informed of the appeal, and as Mr Merillo’s court hearing on 26/6/16 [sic] approaches, his levels of anxiety and emotional stress have significantly increased. He reports experiencing intense anxiety most of the time and becomes easily emotionally distressed. He has expressed concern about the behaviour of the victim’s father in the hearing on 8/12/16 and fears a recurrence of similar hostility/threatening behaviour by the victim’s father at the appeal hearing.

Should this appeal result in Mr Merillo receiving a gaol sentence, I am very concerned that he may be at risk of experiencing a mental/emotional breakdown, which could increase the risk of a suicide attempt. During the telephone interviews I provided to officers of the Dept. of Community Corrections Burwood … I advised each officer of my continuing concerns about Mr Merillo’s mental health. I consider that in the event that this appeal results in a gaol sentence, Mr Merillo would require regular psychological support and treatment.”

85. There is no countervailing material from the Crown.

86. The time for the imposition of a custodial sentence was when the sentence was handed down. Since that time, it is apparent that the respondent’s mental condition has worsened and the risk of self-harm has increased. It is also not without significance that the reports relating to his compliance with the ICO conditions are all very positive and that the rehabilitation process is well on track.

87. Taking those matters into account, I am of the opinion that even though manifest inadequacy has been established, in the exercise of the residual discretion, I would decline to interfere with the sentence which has been imposed.

88. Accordingly, the order which I propose is that the Crown appeal against sentence be dismissed.

89. R A HULME J: I agree with Hoeben CJ at CL.

90. GARLING J: I am grateful to the Chief Judge for setting out all of the relevant facts and matters concerning this Crown appeal.

91. I agree with the Chief Judge that the sentence which was imposed was manifestly inadequate. Having regard to all of the factual circumstances of, and surrounding, the offence, the sentence which was imposed did not address a number of the purposes of sentencing fixed by Parliament in s 3A of the Crimes (Sentencing Procedure) Act 1999. An intensive correction order where the offender recklessly causes grievous bodily harm, in the circumstances here, did not ensure that the offender was adequately punished for the offence which he committed, nor did it adequately denounce the conduct of the offender, nor did it in any effective way recognise the harm done to the victim of the crime.

92. Having carefully read the sentencing Judge's Remarks on Sentence, I cannot resist forming the conclusion that, contrary to authority, his Honour, giving excessive weight to the offender's personal circumstances, determined at the outset that a sentence should be fashioned so that the offender was able to take advantage of a more lenient form of punishment, namely an intensive correction order.

93. However, unlike the Chief Judge and R A Hulme J, I am unable to agree that this is a case in which the Court should not proceed to impose a longer sentence.

94. Whilst the expert opinion of the psychologist treating the respondent suggests that his psychological state has been adversely affected by anxiety surrounding the sentence proceedings in the District Court and the hearing of the appeal in this Court, I do not understand the expert opinion to indicate that this anxiety could not be the subject of adequate treatment, and that such treatment could not be provided to the respondent whilst he was serving a term of imprisonment.

95. I also accept that in the time since the ICO was imposed, the respondent has complied with the conditions and has continued, by his conduct, to demonstrate progress on a path to rehabilitation. So much was to be expected of this respondent, having regard to his evidence before the sentencing Judge and the assessments made in the relevant pre-sentence reports. There is no reason to think that his progress towards rehabilitation would not continue whilst in custody.

96. It was not suggested by the respondent that there had been any undue delay in the process of the Crown filing its Notice of Appeal, nor in the hearing of the appeal by this Court. Significant delay is often a relevant factor in considering whether to exercise the Court's residual discretion to dismiss the appeal.

97. It is a matter to be considered and given weight, that the respondent has not served any term of imprisonment and that the imposition of sentence term of imprisonment in these proceedings, would have a significant impact on the respondent. However, giving that matter due weight together with all other relevant matters, I am unpersuaded that the Court should refrain from proceeding to resentence the respondent.

98. The Crown has satisfied me that the Court should proceed to re sentence, and not to exercise its residual discretion to dismiss the appeal.

99. As mine is a minority view, it is sufficient for me to indicate that had I proceeded to formulate an appropriate sentence for the respondent, it would have been one in the order of an overall term of imprisonment of 4 years with a non-parole period of 2 years and 6 months.

100. I would uphold the appeal, and proceed to re-sentence the respondent.

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Amendments

19 July 2017 - Counsel appearing for Applicant Crown amended.

Decision last updated: 19 July 2017