R v Mitchell; R v Gallagher

[2007] NSWCCA 296

Reported Decision: 177 A Crim R 94

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Mitchell, Regina v Gallagher [2007] NSWCCA 296
HEARING DATE(S):	22/08/2007
JUDGMENT DATE:	22 October 2007
JUDGMENT OF:	Giles JA at 1; Howie J at 2; Fullerton J at 56
DECISION:	In respect of each respondent the Crown appeal is allowed. The sentences imposed in the District Court are quashed. In the case of the respondent Mitchell he is sentenced to a term of imprisonment made up of a non-parole period of 7 years with a balance of term of 5 years to date from 19 July 2006. He is eligible to be considered for release to parole on 18 July 2013. In the case of the respondent Gallagher he is sentenced to a term of imprisonment comprising a non-parole period of 5 years and a balance of term of 4 years 4 months to date from 5 March 2007. He is eligible to be considered for release to parole on 4 March 2012.
CATCHWORDS:	Criminal Law - Sentencing - Crown appeal against sentence - maliciously inflict grievous bodily harm with intent - objective seriousness described as "at least mid-range" - error in assessing objective seriousness - offence above mid-range seriousness - discount for plea of guilty and remorse - sentences manifestly inadequate - respondents resentenced.
LEGISLATION CITED:	Crimes Act 1900 - ss 33, 35 Crimes (Sentencing Procedure) Act 1999 - ss 3A, 21A
CASES CITED:	R v MAK and MSK (2006) 167 A Crim R 159 R v Wall [2002] NSWCCA 42 R v Camilleri (NSWCCA, unreported, 2 February 1990) R v Swan [2006] NSWCCA 47 R v Mirza [2007] NSWCCA 248 R v Knight [2007] NSWCCA 283 R v Henry (1999) 46 NSWLR 346 Waters v R [2007] NSWCCA 219 R v AJP (2004) 150 A Crim R 575 R v Marshall [2007] NSWCCA 24 R v Muleto [2006] NSWCCA 282 R v Jione [2007] NSWCCA 170
PARTIES:	Regina v Grant Mitchell, Regina v Nathan Gallagher
FILE NUMBER(S):	CCA 2007/3236; 2007/3237
COUNSEL:	G. Rowling - Crown H. Dhanji - Respondent Mitchell H. Cox - Respondent Gallagher
SOLICITORS:	S. Kavanagh Crown S. O'Connor - Respondent Mitchell Baraclough Jones & Associates - Respondent Gallagher
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/31/0443
LOWER COURT JUDICIAL OFFICER:	Murrell DCJ
LOWER COURT DATE OF DECISION:	05/03/2007

2007/3236, 2007/3237

GILES JA
HOWIE J
FULLERTON J

MONDAY 22 OCTOBER 2007

REGINA v Grant MITCHELL

REGINA v Nathan GALLAGHER

Judgment

1 GILES JA: I agree with Howie J.

2 HOWIE J: The respondents to these Crown appeals were arraigned before the District Court on 19 February 2007, the trial date, on an indictment that contained two counts. The first count alleged an offence of maliciously inflict grievous bodily harm with intent to do grievous bodily harm contrary to section 33 of the Crimes Act. That offence carries a maximum penalty of imprisonment for 25 years. A standard non-parole period of seven years has been prescribed for that offence. The second count was in the alternative and alleged an offence of maliciously inflicting grievous bodily harm contrary to section 35 of the Crimes Act. The respondents pleaded not guilty to the first count but guilty to the second count. However the Crown refused to accept the plea in full discharge of the indictment. The respondents then pleaded guilty to the first count.

3 They were dealt with by Judge Murrell SC (the Judge) as follows. The respondent Mitchell was sentenced to a term of imprisonment consisting of a non-parole period of four years and a balance of term of four years. The sentence was to commence on 19 July 2006 and the respondent is eligible to be considered for release to parole on 18 July 2010. The respondent Gallagher was sentenced to a term of imprisonment consisting of a non-parole period of two years and six months and a balance of term of two years and eight months. The sentence commenced on 5 March 2007. He is eligible to be released to parole on 4 September 2009.

4 At the date of the commission of the offence, 18 January 2006, the respondent Mitchell was aged 21 years. The respondent Gallagher was aged 20 years. The victim was aged 25. As a result of the assaults committed by the respondents upon him, the victim suffered extensive brain injury. He is confined to a wheelchair, has very limited speech and very severe cognitive problems from which he will never recover. His condition has been described, without exaggeration, as being in a “vegetative state” and “like a living death”. The effect on his parents of this catastrophic injury does not need to be described.

5 The facts can be briefly stated. The respondent Mitchell had a belief that the victim had sexually assaulted him some years earlier when the respondent was aged 10 or 11. Whether that belief had any basis in fact was left undetermined by her Honour. The two respondents had spent the day of the assault drinking alcohol and taking illegal drugs. As they were walking along a street, they came across the victim. The respondent Mitchell identified the victim as being responsible for the assault upon him. They attacked him, the respondent Mitchell throwing the first punch. The two became involved in a sustained attack upon the victim resulting in his being punched to the ground and then kicked to the head and body. As he lay on the ground the victim was unconscious or at least unable to defend himself. At one stage the respondent Mitchell picked up the victim and slammed him to the ground. They both continued to punch, kick and stomp on him despite calls from bystanders to desist. The Judge described the attack as “vicious”. The respondent Mitchell was the primary offender but Gallagher also punched the victim to the head and kicked him as he lay on the ground. The respondent Gallagher was the first to abandon the assault but this occurred when the two were confronted by bystanders who came to assist the victim.

6 Her Honour stated:

“I accept that both offenders were very, very intoxicated. I accept that neither intended to cause physical injury to the extent to which injury was sustained. I accept that neither would have become involved except that each was heavily under the influence of alcohol and drugs and except that each believe that the victim had sexually assaulted Mr Mitchell when Mr Mitchell was a child”

7 In reference to the seriousness of the offence, the Judge said:

The injuries which were suffered by the victim could hardly have been worse. He was not killed, but his condition is like a living death. It is relevant to the objective seriousness of the offence, that the injuries sustained by the victim are of the most serious kind. The assault was a brutal, sustained attack.

8 Later her Honour stated:

There are some matters which mitigate, to some extent, the objective seriousness of the offence. Alcohol and drugs were strong contributing factors. There was no premeditation. It was by sheer bad luck that the offenders encountered the victim when they were seriously intoxicated. The assault was fuelled not only by alcohol and drugs but also by the firm conviction on Mr Mitchell's part, which he had shared with his best friend, Mr Gallagher, that the victim was a child molester and had attacked him. The factors of alcohol, drugs and this belief operated on Mr Mitchell's mind to cause him to, in effect, explode. There was no weapon used in the offence but the attack with feet, which involved kicking and stomping directed particularly to the victim's head was vicious in the extreme. Mr Gallagher was wearing thongs and/or bare feet at the time, but he is a big man and it is not much to the point that he did not have shoes or boots on at the time. That the offence was committed in company is a factor which aggravates it.

9 The respondent Mitchell was aged 22 at the date of sentence. He had a criminal record including an offence of dangerous driving causing grievous bodily harm dealt with in the Children’s Court and for which he had been subject to a control order. In June 2005 he was placed on a bond for an offence of assault arising from an act of retaliation to a perceived threat made to him by the person assaulted. That bond was current at the time of this offence. In 2006 he was sentenced for offences of break, enter and steal and had been given a non-parole period of 6 months. He was due for release on 17 July 2006 but remained in custody on remand for the present offence.

10 There was little in his background of relevance, except that he had sought treatment in respect of the effects of the alleged sexual assault by the victim but had failed to keep appointments with a treating psychologist. He had been abusing alcohol and cannabis and also using amphetamines and ecstasy on occasions around the time of the offence. The Judge found that he was remorseful. Before going into custody he had been an apprenticed panel beater. He has been in protective custody since he was incarcerated in January 2006. His father had noticed a change in his attitude since he had been placed into custody.

11 The respondent Gallagher was aged 21 at the date of sentence. He had no prior convictions and was considered by his employer as honest and reliable. He was employed as an apprenticed chef. He had also been involved in community works such as Meals on Wheels. He had a disruptive childhood because of the inability of his mother to cope with him as a baby. There was evidence that his father had physically abused him. However he enjoyed the love and support of his grandparents with whom he had lived in the period before the offence. Although he had a short temper, that had only been manifest in verbal anger. He had voluntarily undertaken an anger management course. He had a problem with alcohol and cannabis but had sought counselling in respect of both and was no longer using cannabis at the time of sentencing. The Judge found that he was very remorseful.

12 The Judge was of the view that the offence fell within “at least the midrange of objective seriousness”. She also said “overall it is an offence of very substantial seriousness”. The apparent contradictory nature of those two statements was taken up by the Crown at the hearing of the appeal as indicative of error.

13 Her Honour found that in the case of the respondent Mitchell the prior assault was not an aggravating feature. This is somewhat surprising having regard to the nature of the offence as retaliation for a perceived wrong done by the victim. This was precisely the motivation for the present offence. The Judge found that the offence was aggravated by the fact that it was committed in company, that there was gratuitous cruelty by reason of the number of kicks administered to the victim, that there was a very substantial injury sustained and that the respondent Mitchell was on conditional liberty. She found that the offence was mitigated by the circumstance that the respondent believed he had been maltreated by the victim, that there was a “good chance” that he would be rehabilitated, that he was very remorseful and the plea of guilty.

14 In the case of the respondent Gallagher, the Judge found that the same aggravating features were present. She found that there was mitigation in the fact that the respondent had no prior criminal record, that he had excellent prospects of rehabilitation, a high level of remorse and the plea of guilty.

15 Her Honour stated:

“There are a number of distinctions which can be drawn between the two offenders. Some distinctions which are, to my mind, very significant for sentencing purposes, are, first, that Mr Mitchell was the instigator and the principal assailant. Mr Gallagher was not the instigator and he was not the principal assailant, but he certainly participated to a substantial degree. Mr Gallagher has no prior criminal record of any type and there is other evidence of good behaviour in relation to Mr Gallagher. I do not consider the age difference between the men to be of any significance.”

16 Her Honour saw the promotion of the rehabilitation of each of the respondents as of importance because of their age and stated that general deterrence was of less significance. She also acknowledged the importance of denouncing their conduct and the harm done to the victim and his family. She saw it as necessary, in particular, to denounce the fact that the respondents had taken the law into their own hands, a matter that she described as “inexcusable”. This finding is to my mind difficult to reconcile with the fact that the Judge found it to be a mitigating factor that the respondents believed that the victim had sexually assaulted Mitchell.

17 Her Honour stated:

“In relation to each of the offenders, taking into account the utilitarian value of the pleas of guilty and the very high level of remorse which each has indicated, I intend to reduce the sentences which I would otherwise have imposed by a factor of 20 per cent.”

18 The Judge found there were special circumstances in each case to reduce the non-parole period from the statutory ratio. The Crown has not argued that that finding was not available to her Honour. The Judge took into account in relation to the respondent Mitchell that he was in protective custody and that the respondent Gallagher “may well seek protection in custody as well”.

19 In written submissions the Crown argued that the Judge had given too much weight to the subjective circumstances of each of the respondents in determining the sentences that she imposed upon them. It was also submitted that the Judge had failed to record any reason for departing from the standard non-parole period of seven years that applied to the offence to which the respondents had pleaded guilty. The Crown contended that little regard to the standard non-parole period is found within the reasons for sentence and that her Honour had failed to give it sufficient weight.

20 In oral argument before the Court the Crown extended its criticism of the exercise of the Judge’s sentencing discretion to include the fact that a discount of 20 per cent had been awarded to the respondents notwithstanding that they had pleaded guilty on the date of the trial and by taking into account their remorse. It was submitted that this was contrary to the decision of this Court in R v MAK and MSK (2006) 167 A Crim R 159. It was also submitted that the Judge had failed to determine, for the purposes of applying the standard non-parole provisions, where the offending of each of the respondents fell within the range of criminal conduct encompassed by an offence contrary to s 33. As a result of these errors and otherwise, the Crown contended that the sentences were manifestly inadequate to a degree warranting the intervention of this Court notwithstanding the youth of the respondents.

21 On behalf of the respondent Mitchell, Mr Dhanji reminded the Court of the principles that apply in relation to a Crown appeal and in particular the discretions available to this Court in determining whether to interfere with the sentence imposed and the extent that it should resentence the respondent if error had been established by the Crown. He quoted from the well-known passage in R v Wall [2002] NSWCCA 42 where Wood CJ at CL summarised the relevant principles. It is unnecessary to set them out again in this judgment but I acknowledge their continuing significance and the importance generally of the discretion residing in a sentencing judge.

22 Mr Dhanji submitted that no error had been shown in the exercise of the Judge’s discretion and that the sentence was not manifestly inadequate. In particular it was submitted that there had not been any error in the application of the standard non-parole provisions, the Judge correctly indicating that it provided a "guidepost in terms of sentencing". He noted that the deviation from the standard non-parole period was largely as a result of her Honour providing a discount of 20 per cent and a finding of special circumstances. It was submitted that each of these findings was within the Judge’s discretion. Mr Dhanji described the respondent Mitchell's subjective case as "powerful". He also referred to the fact that the Crown appeal was not launched until a month after the respondent had been sentenced, although the respondent had been notified within a week of being sentenced that the Crown was considering an appeal.

23 Ms Cox on behalf of the respondent Gallagher adopted the submissions that had been made both in writing and orally by Mr Dhanji. She made further written submissions with leave after the Court had reserved its decision as to the Judge’s finding in relation to where the offence stood in the range of criminal activity encompassed by s 33. She relied upon the motive for the attack as diminishing the degree of objective seriousness and relied upon R v Camilleri (NSWCCA, unreported, 2 February 1990) and R v Swan [2006] NSWCCA 47 in support of that proposition. She also noted this Court’s reluctance to interfere with a finding made by a sentencing judge as to the objective seriousness of an offence; see R v Mirza [2007] NSWCCA 248.

24 In my opinion the sentences are manifestly inadequate and to a very significant degree. In addition there are clear errors in the exercise of the Judge’s discretion. It was not reasonably open to her Honour to award the respondents a discount of 20 per cent for a plea of guilty occurring on the trial date by taking into account the remorse of the respondents. It was made clear in R v MAK and MSK that no numerical discount should be given for remorse, either by itself of in conjunction with a plea of guilty. To do so is to run the risk of double counting, as remorse is a significant consideration in determining the offender’s prospects for rehabilitation and the likelihood of reoffending. The appropriate discount for the utilitarian value of the plea was no more than 10 per cent.

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 mid range of objective seriousness”: see R v Knight [2007] NSWCCA 283. 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.

26 Her Honour attributes to the Crown Prosecutor appearing before her a submission that the offence was “at least in the mid range” and then purports to adopt that submission. In fact the prosecutor submitted at the outset of his submissions that the objective seriousness of the offence “falls squarely within the upper range”. He repeated that submission on at least one other occasion during the course of his address. With respect that submission was clearly correct and should have been adopted by her Honour.

27 A very important aspect of an offence under s 33 is the result of the offender’s conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence. This is not to underestimate the intent component of the offence, after all that is the element that makes the offender liable to a maximum penalty of 25 years as opposed to 7 years for a s 35 offence. But there is less scope for variation in the nature of the intention to do grievous bodily harm when determining the seriousness of a particular instance of the offence than there is for variation in the nature of the injury inflicted. It should be borne in mind that, if the victim had died, the respondents would have faced a charge of murder. The injury suffered by the victim was, as her Honour noted, little short of death.

28 The nature of the injury suffered by the victim was in the very worst category that could be envisaged for the offence. That itself brought the offence into a very serious category. There was little mitigation in the conduct of the respondents that caused that injury. The acts of the respondents were rightly described by her Honour as a sustained and vicious attack upon the victim. It continued unabated even when the victim was unable to defend himself. It ceased only because of intervention from others seeking to protect the victim. Of course the offence could have been objectively more serious. As her Honour noted, the offence was apparently not premeditated and the respondents were not armed with weapons. But had it been a planned attack with the use of weapons, it would have been approaching the worst category of an offence under s 33 and would have warranted, before any applicable discounts, a sentence approaching the maximum penalty provided notwithstanding the youth of the respondents.

29 With respect to her Honour, when an offence is as objectively serious as this particular offence was, there is a limited scope to ameliorate the penalty by promoting the rehabilitation of the offenders, especially in the case of Mitchell who was on a bond for an offence of violence committed in retaliation against the victim for some assumed wrong. I fail to understand why her Honour thought that general deterrence was of less significance in the circumstances of this case just because the respondents were young men. Violence on the streets especially by young men in company and under the influence of alcohol or drugs is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence.

30 The offence was one well above the mid-range of objective culpability. True it was not one where the respondents cold-bloodedly singled out an innocent passer-by as the subject for their drug-fuelled aggression. If such had been the case, the offence would have been aggravated by that fact. I accept that it was a relevant factor that the respondents believed that the victim had been guilty of sexual activity to the respondent Mitchell: R v Swan [2006] NSWCCA 47. But a grievance with the conduct of another, whether justified or not, cannot be a license to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case the motive of the respondents for assaulting the victim was of limited mitigating value.

31 The relevance of motive will vary depending upon the particular facts of the case. It may explain why the offence was committed without condoning or excusing it. The more serious the offence committed the less weight that can be given to motive as a mitigating factor, even if it might otherwise have had that effect. But as was pointed out in Swan, the existence of motive is relevant to other factors that may impact upon the sentencing discretion. In this case, particularly with respect to the respondent Gallagher, it partly explains why he committed such a serious offence notwithstanding that he had no prior criminal record and was otherwise considered a person of good character, apart from his use of illicit drugs. The existence of the motive indicated that in his case there was no need for personal deterrence. But because of Mitchell’s prior offence of violence and because he was on a bond at the time, the significance of motive in this respect was reduced and it was appropriate to consider personal deterrence as a relevant factor notwithstanding his remorse.

32 It is importance therefore to understand that the existence of a motive for the commission of a crime and the nature of that motive may be important factors in the exercise of the sentencing discretion but may in some cases point in different directions. It may to some degree mitigate the objective seriousness of the offence yet indicate the need for a more severe sentence in order to address issues of deterrence. In some cases, as where the use of illegal drugs explains the commission of the offence, it offers no mitigation of the objectives seriousness of the offence, yet may allow significance to be given to rehabilitation of the offender: see generally Wood CJ at CL in R v Henry (1999) 46 NSWLR 346.

33 In Swan a significant matter was the fact that the offender was intellectually disabled. He offended against the victim not only in order to achieve personal retribution for the sexual assaults committed against him but also from a misguided view that he was dissuading the victim from assaulting other intellectually impaired persons, as he believed the victim had been doing. In considering what he did and the reason he did it, his intellectual impairment was a relevant factor. It was for this reason that the Court was able to attenuate the need to deter persons from taking the law into their own hands: see per Spigelman CJ at [60]. There was no such attenuating factor in the present case.

34 There was little mitigation of the objective seriousness of the offence in the fact that the respondents were intoxicated by alcohol and the use of illegal drugs and that this in some way caused their uninhibited violence toward the victim. The court cannot permit a person to rely upon the fact that he had been ingesting illegal drugs as in any way excusing offending conduct or its consequences. It may be mitigating in so far as it indicates that the offence was impulsive, unplanned and that the offender’s capacity to exercise judgment was impaired: Waters v R [2007] NSWCCA 219 at [38]. In this case its chief relevance was to the prospects of the respondents’ rehabilitation in light of the evidence that they had both been addressing that issue.

35 The Judge took into account as a mitigating factor that the respondents did not intend the degree of harm that was caused to the victim. That consideration would be understandable in a case where the injury far outweighed what might have been envisaged as the consequence of the behaviour causing it. Such a consideration might be relevant in the case of, for example, a single punch to the face that results in the victim falling to the ground and suffering very grievous injuries as a consequence. But in this case the respondents indulged in what her Honour described as a brutal and sustained attack upon a defenceless person by kicking or stomping on his head and body while he was lying on the ground. The fact that the respondents might not have foreseen that the consequence of such serious conduct was to have left the victim in a vegetative state is of little, if any, weight in my opinion.

36 This case brings into sharp focus the difficulty of applying the standard non-parole provisions in a case where the standard non-parole period specified for a particular offence does not represent a non-parole period that would normally be appropriate for an offence falling within the midpoint of the prescribed statutory maximum. There are other examples, some where the standard non-parole period is equal to, or more than, half of the maximum penalty, see R v AJP (2004) 150 A Crim R 575 and some where the standard non-parole period is considerably less than half the maximum penalty. The latter category of offence was considered in R v Marshall [2007] NSWCCA 24, a case concerned with aggravated break, enter and steal contrary to s 112(2). There I wrote:

34 ……….. it is not an easy task to make sense of, and apply, the standard non-parole period provisions in relation to s 112(2) offences. Firstly, the standard non-parole period is 5 years as against a head sentence of 20 years. One would expect as a matter of logic and the application of ordinary sentencing principles that, if an offence was hypothetically of the mid-range of seriousness, it would carry a sentence of half the maximum penalty, that is a total term of ten years and, according to the statutory proportion under s 44 of the Crimes (Sentencing Procedure) Act, a non-parole period of seven and a half years. What then is to be made of the fact that the standard non-parole period is only 5 years? Does this disclose the intention of Parliament that the courts should take a more benign view of an offence under s 112(2) than the maximum penalty would seem to suggest? How does a court determine the sentence where the seriousness of the offence is somewhere above the mid-range of seriousness but below the most serious category of an offence under the section: by having more regard to the standard non-parole period or to the maximum penalty?

37 Where a particular case falls well above the mid-range of offending, the standard non-parole period will have less significance as a guidepost and more attention should be directed to the maximum penalty in determining the appropriate sentence. This must be so otherwise an offence falling within the worst category of case, and so notionally attracting the maximum penalty, would be drawn away from that point by the standard non-parole period and a court could never impose the maximum penalty. This does not mean that the standard non-parole period loses all relevance and it may still have work to do as a guide to determining the non-parole period. So, for example, with an offence of objective seriousness well above mid-range it may be unlikely that, even after a discount for the plea of guilty, or a consideration of the subjective circumstances of the offender or a finding of special circumstances the result would be a non-parole of, or below, the standard non-parole period prescribed.

38 Of course when the maximum penalty is the principal factor used as a guide in determining the appropriate sentence rather than the standard non-parole period, the court is then considering primarily what the total term of the sentence should be. The court determines as against the maximum penalty, and taking into account that this is the prima facie sentence for an offence falling within the worst category of offending encompassed by the section, how serious is the criminality in the particular case and how much of the maximum penalty is warranted having regard to all relevant sentencing considerations including of course those matters specified in s 21A of the Crimes (Sentencing Procedure) Act and the purposes of sentencing as set out in s 3A of that Act.

39 In my opinion the Judge failed fully to determine the degree of objective seriousness of the offence as required of her when dealing with an offence to which there is a relevant standard non-parole period. This is an error that resulted in a miscarriage of her sentencing discretion and requires this Court to make that assessment itself: cf R v Muleto [2006] NSWCCA 282 and R v Mirza [2007] NSWCCA 248.

40 In the present case the Judge should have concluded that the offence substantially exceeded the mid-range of offending having regard to all the objective facts including in particular that the injury suffered by the victim was of the worst possible kind that could fall within the scope of the section. Her Honour ought then to have considered where in the range of offending, so far as the maximum penalty of 25 years imprisonment was concerned, such an offence came. Because the offending was not premeditated and the respondents did not arm themselves with weapons and because of their subjective circumstances, in neither case did the offending fall within the worst category. However, as the objective seriousness was well above mid-range, it warranted a notional head sentence, before discount for the plea and a finding of special circumstances, at least exceeding half the maximum penalty for the offence.

41 The criminality of the respondent Gallagher was somewhat less than Mitchell but not to a very substantial degree. He was a party to the infliction of the injury upon the victim in a real sense and not simply by way of derivative culpability as might be the case had he simply aided and abetted his co-offender. It was too late for him to remedy the harm intentionally inflicted upon the victim or to reduce his culpability for that harm by being the first to decide that enough punishment had been meted out. On one view his culpability was greater than the respondent Mitchell because he had no personal reason to be vindictive toward the victim. However, as the Crown did not contend that her Honour was in error in differentiating between the respondents, this Court should also moderate the sentence to be imposed upon him in view of his slightly lesser criminality and his more favourable subjective circumstances.

42 In considering this appeal two affidavits were tendered to the Court regarding the circumstances of the respondents since being sentenced. The respondent Mitchell is still being held in protection although he says nothing about the nature of that protection or how it impacts upon him. He has expressed a wish to do as many courses as are available to him. He claims to be suffering from a Post Traumatic Stress Disorder as a result of the abuse inflicted upon him. He is also depressed as a result of what he has done and the fact that there have been three deaths in his family while he has been in custody. In respect of the respondent Gallagher he is in protection at his own request. He is keen to undertake courses but none have so far been made available to him. He has been recently housed in Cooma and his grandparents visit him when they are able to do so. He is being treated for depression.

43 In my opinion the sentences are so inadequate that this Court should intervene and re-sentence the respondents notwithstanding their youth and the fact that it is their first time in custody. The sentence for Gallagher was particularly inadequate and such a discrepancy between the sentences for the two respondents cannot be justified.

44 The prosecutor before her Honour submitted that the discount for the pleas of guilty because of a “combination of factors” should be 15 per cent. That was an erroneous submission but the respondents should be given the benefit of it. Had her Honour discounted the sentences by that amount, the Crown would not have been heard to complain about that fact in this Court. It is too late for the Crown now to submit that the discount should have been no more than 10 per cent.

45 The notional head sentence before any discount should have been somewhere in the vicinity of 14 to 16 years for the respondent Mitchell and 11 to 13 years for the respondent Gallagher. Because this is a Crown appeal I am prepared to start at the lowest point in each of those ranges. A discount of 15 per cent reduces those sentences to about 12 years in the case of Mitchell and about 9 years 4 months in the case of Gallagher. The Court has been shown statistics that indicate that there has been only one sentence of more than 12 years imposed for an offence under s 33 since February 2003. That is somewhat surprising in view of the maximum penalty prescribed. However, having regard to the very serious nature of the offence, no lesser sentence could be justified for either respondent.

46 There should be a finding of special circumstances because of the young age of both of the respondents and the need for them to re-establish themselves after a very lengthy period in custody. The judge set a non-parole period of 50 per cent of the head sentence. I can see no justification for such a reduction in the statutory ratio in either case. A finding of special circumstances should not be used as a means to simply ameliorate the sentence. It is a finding that serves a purpose that will usually be to extend the period of supervision but may include other reasons. With a lengthy sentence a finding of special circumstances is less likely to be made because the period of parole provided as a result of applying the statutory ratio will give sufficient time for supervision and the other benefits of parole. To some extent the inadequacy of the present sentences is a result of the reduction of the non-parole periods to a point where they fail to reflect the seriousness of the crime committed by the respondents. It reflects a considerable amount of double counting of factors such as, in Mitchell’s case, the fact that he is on protection.

47 I doubt that on re-sentencing the respondents a finding of special circumstances is warranted given the period on parole that would be produced by the statutory ratio. However in light of the fact that this is a Crown appeal and the Crown apparently accepted that such a finding would be made, I am prepared to make that finding. However, regard must be had to the standard non-parole period which, as I have indicated, still remains a relevant guidepost to the appropriate non-parole period. In this case the sentence of Mitchell will result in a non-parole period that accords with the standard non-parole period notwithstanding that the offence committed was very much more serious than a mid-range offence. This is only because of the plea of guilty, the finding of special circumstances and the mitigation of what was otherwise the appropriate sentence having regard to the fact that this is a Crown appeal. The non-parole period that should have been imposed in the District Court should have exceeded the standard non-parole period by about 2 years.

48 Similarly in the case of Gallagher the non-parole period is less than should have been imposed by the Judge. The sentence that I believe now should be imposed has in his case been very considerably moderated in recognition of this being a re-sentencing after a Crown appeal. The sentence in his case was so inappropriately lenient that now to impose the sentence that ought to have been imposed upon him by the sentencing judge, even taking into account the bottom of the permissible range, would be crushing.

49 I propose the following orders. In respect of each respondent the Crown appeal is allowed. The sentences imposed in the District Court are quashed. In the case of the respondent Mitchell he is sentenced to a term of imprisonment made up of a non-parole period of 7 years with a balance of term of 5 years to date from 19 July 2006. He is eligible to be considered for release to parole on 18 July 2013. In the case of the respondent Gallagher he is sentenced to a term of imprisonment comprising a non-parole period of 5 years and a balance of term of 4 years 4 months to date from 5 March 2007. He is eligible to be considered for release to parole on 4 March 2012.

50 After I had written the draft of this judgment and determined what sentences should now be imposed upon the respondents, I became aware of a recent decision of this Court dealing with a Crown appeal that has considerable similarities with the present matter both in relation to the facts of the offence under consideration and the arguments raised by the Crown in criticism of the sentence imposed. None of the parties referred to this decision in their submissions either in writing or orally. The failure of the Crown to draw the attention of the Court to this decision is of particular concern, given the fact that it was a successful Crown appeal where this Court re-sentenced the respondent for the same offence as that for which the respondents were sentenced.

51 In R v Jione [2007] NSWCCA 170 the Crown appealed against a sentence imposed in the District Court for an offence contrary to s 33. The respondent had pleaded guilty and was sentenced to effectively a sentence of 8 years with a non-parole period of 5 years. The victim in that matter was beaten and kicked by the respondent, apparently because of some dispute arising between them at a hotel, causing the victim catastrophic brain injuries similar to that suffered by the victim in the present matter and leaving him in a permanent vegetative state. The sentencing judge described the offence as being in the mid-range of objective seriousness. This Court concluded that, having regard to the injuries suffered by the victim being as serious as they could be short of death, the offence was “well above the category of mid range and in the category of high seriousness”.

52 Grove J, who gave the leading judgment, stated:

12 It has been established that the standard non-parole period should be understood as having been specified for mid range offences where there has been conviction after trial: R v Way (2004) 60 NSWLR 168, but the prescription continues to provide a benchmark for sentencing when there has been a guilty plea. But it is not a sole benchmark and there is nothing in Part 4 Division 1A to suggest that the statutory maximum ceases to provide a reference for sentence assessment. That maximum reveals a policy of the Legislature relevant to penalty for particular offence: Gibson v The Queen (1991) 172 CLR 353 at p 364 and has been described as a reflection of public perception of seriousness: R v H [1980] 3 A Crim R 53 at p 65.

53 The respondent in that case was re-sentenced by this Court to an effective term of imprisonment of 12 years with a non-parole period of 8 years. That sentence took into account a discount of 25 per cent for the utilitarian value of the plea from an otherwise appropriate starting sentence of 16 years.

54 There is little by way of statement of principle in this decision. The passage I have quoted above is very much reflected in what I had written about the relationship between the standard non-parole period and the maximum penalty. The error attributed to the sentencing judge by that Court is similar to the error I find by the Judge in sentencing the respondents: a failure to properly evaluate the objective seriousness of the respondents’ conduct and hence paying too little regard to the maximum penalty.

55 Of course there are differences in the facts between the offence consider by the Court in Jione and that committed by the present respondents. There are also differences in the subjective circumstances of the different respondents. The decision in Jione is a result of the exercise of that Court’s discretion and is not strictly binding on this Court. But it is a guide to the appropriate sentence to be imposed upon the respondents. Having reviewed my reasons for allowing the appeal against the respondents in light of what was said by the Court in Jione and the sentences that I had proposed should now be imposed in light of the sentence imposed by this Court in that case, I am confirmed in my mind that the orders I propose are the appropriate ones.

56 FULLERTON J: I agree with Howie J.

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