R v Newman

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Newman, R v Simpson [2004] NSWCCA 102

FILE NUMBER(S):
60439/03
60049/04

HEARING DATE(S): 18/03/2004

JUDGMENT DATE: 19/04/2004

PARTIES:
Regina v Mitchell Newman, Regina v Kaylene Simpson

JUDGMENT OF: McColl JA Howie J Shaw J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/71/0009

LOWER COURT JUDICIAL OFFICER: Urquhart DCJ

COUNSEL:
M. Grogan - Crown
A.P. Cook - Applicant Newman
H. Cox - Applicant Simpson

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Applicant Newman
Sydney Regional Legal Service - Applicant Simpson

CATCHWORDS:
Criminal Practice and Procedure - Sentencing - Application of Fernando principles - Commencement date of the sentence - Views of victim as to appropriate sentence

LEGISLATION CITED:
Crimes Act 1900 - ss 105A, 113(3)
Crimes (Sentencing Procedure) Act 1999 - ss 21A, 24(a), 28(3), 47(3)

DECISION:
Applications for leave to appeal granted but appeals dismissed.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60439/03
60049/04
McCOLL JA
HOWIE J
SHAW J
MONDAY 19 APRIL 2004

R v MITCHELL NEWMAN
R v KAYLENE SIMPSON

Judgment

McCOLL JA: I agree with Howie J.
HOWIE J: On 7 May 2003, Judge Urquhart sentenced the applicants and another offender, Nathan Charles, for the offence of aggravated enter dwelling with intent to commit a serious indictable offence contrary to s 113(3) of the Crimes Act. That is an offence to which a maximum penalty of imprisonment for 20 years has been prescribed. The three offenders had been indicted for an offence of armed robbery with wounding contrary to s 98 of the Act, with the s 113(3) offence as an alternative count. On 5 May 2003 they pleaded not guilty to the first count on the indictment but guilty to the alternative count and the Crown accepted those pleas in full satisfaction of the indictment. The s 113(3) charge alleged that the serious offence they intended to commit was stealing and that the circumstance of aggravation was the wounding of the occupant of the premises, Dr Negus.
His Honour sentenced the offender Charles to imprisonment for 7 years and 8 months with a non-parole period of 5 years. Those sentences dated from 7 May 2003 and the offender is eligible for release to parole on 7 May 2008. The applicant Newman was sentenced to imprisonment for 8 years with a non-parole period of 5 years, that sentence commencing on 10 October 2002. He is eligible for release to parole on 10 October 2007. The applicant Simpson was sentenced to imprisonment for 5 years 3 months and 21 days, which is an effective sentence of 5½ years, with a non-parole period of 3 years commencing on 6 May 2003. She is eligible for release to parole on 6 May 2006.
Before outlining the facts in this matter something should be said about the way the proceedings were conducted. The Crown tendered to the Court what purported to be an “Agreed Statement of Facts” together with the brief of evidence. The statement of facts tendered would have supported the charge of armed robbery with wounding, an offence for which the applicants were not to be sentenced. All the facts upon which his Honour was asked to sentence the offenders would have sustained the more serious offence, except possibly in the case of Ms Simpson. No objection was taken to the material placed before the sentencing judge and none of the parties apparently considered how his Honour was to sentence the applicants for the offence to which they had pleaded guilty without in effect sentencing them for the more serious offence.
In Palu (2002) 134 A Crim R 174, with the concurrence of Levine and Hidden JJ, I said:
It behoves the parties, especially after a “plea bargain”, to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP(1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP, above at 606………………………….
The present proceedings did not conform to that statement of practice. No complaint was raised about the matter as a ground of appeal nor was it addressed in submissions until raised by the Court. However, inconformity between the offence and the factual basis upon which the sentence is to be based is never a matter of mere technicality. It has real substance in the present case when an assessment has to be made of the seriousness of the particular offence committed by the offenders as against the maximum penalty of twenty years imprisonment for the offence to which they pleaded guilty. Where, as here, no distinction is drawn between the offence for which the Court was to sentence the offender and a more serious offence for which they are not to be sentenced, there is a real likelihood of the sentencing discretion miscarrying.
The factual basis upon which Judge Urquhart sentenced the applicants can be briefly stated. On 9 October 2002 in Griffith at around midnight the two applicants and the man Charles, Ms Simpson’s then de facto partner, agreed to steal property from the home of Dr Negus for the purpose of obtaining money to purchase alcohol. They were all heavily intoxicated, having been drinking since about 6 pm that evening.
Ms Simpson knew Dr Negus personally as on occasions she received counselling and spiritual support from him. He had from time to time assisted her by providing food and nappies for her young children. He was aged 67 years at the date of the offence. It was Ms Simpson who suggested that he would be a suitable victim and she drew a detailed sketch of his premises for her co-offenders. It was also agreed that she would obtain entry to the premises and distract the victim, using the opportunity to leave a door open for the other two. Ms Simpson believed they would enter the premises and steal property belonging to the doctor.
Notwithstanding their impecuniosity, the three offenders caught a taxi to the victim’s premises. Ms Simpson rang the doorbell but, when this was unanswered, she went to the sliding door of the victim’s bedroom. She identified herself to the doctor and told him that she wanted to talk to him about becoming a Christian. He unlocked the door and opened it, allowing her to enter. Almost immediately Ms Simpson said she needed to go outside to vomit. When she re-entered the house, the victim took her to the bathroom. They then returned to the bedroom, where he was confronted by the applicant Newman and Charles, both wearing balaclavas. They grabbed the victim and threw him onto the bed. Charles punched him in the face and held a knife under the victim’s nose. The victim pulled off Charles’ balaclava and recognised him as Ms Simpson’s de facto partner.
Mr Newman then left the room and Charles attacked the victim by punching and kicking him when he had been dragged from the bed to the floor. He was shouting, “Where is your money? Where is your gold? Where is your safe? Where is your rocks?” The last demand was taken by the victim to be a reference to his deceased wife’s jewellery. Mr Newman returned to the bedroom and both he and Charles threw the mattress over the victim. He was told to remain where he was for ten minutes so that they could get away. The two men then left the premises. It was later ascertained that a DVD player, a video player, a tin containing foreign money and the victim’s motor vehicle had been stolen.
Ms Simpson and Charles returned by taxi to their premises. They were later joined by Mr Newman in the victim’s motor vehicle which was later used by him and others for joy-riding.
Dr Negus raised the alarm and was conveyed to hospital. He was treated for lacerations to various parts of his head, a fractured cheekbone, fractured ribs and bruised kidney. He also suffered nerve damage to his face as a result of one deep laceration.
The applicants and Charles were arrested on 10 October at the premises where they were living and items of property belonging to the victim were recovered. His motor vehicle was located nearby.
Ms Simpson participated in an ERISP in which she admitted having planned the offence to get some property to sell. She also admitted drawing a plan of the house for the purpose of breaking into it and obtaining property. She believed that the two men were going to “stand over him” and scare him by their tone of voice but were not to physically assault him. After she gained entry to the premises, she left open the sliding door for the men to gain entry while she went to the bathroom. She later took her shoes off so that she could sneak around the premises looking for property. She said that, as soon as she heard the victim being bashed, she ran out of the house. She later met up with Charles who was carrying a video player.
These facts clearly contain all the elements of the offence of armed robbery with wounding at least so far as the applicant Newman and Mr Charles were concerned: yet his Honour could not sentence for that offence, and did not purport to do so. But his Honour was entitled to take into account any aggravating factor present in the commission of the offence, whether or not that particular fact had been alleged in the indictment. See R v Li (NSWCCA, unreported, 9 July 1997). The relevant aggravating factors are contained in s 105A of the Crimes Act. They include that the offender was armed with an offensive weapon, and that corporal violence was used against the victim. These are, of course, two of the elements of the offence of armed robbery.
The solution to this conundrum appears to be that, in the case of the applicant Newman, his Honour was not entitled to take into account the fact that any property was stolen as a consequence of the use of force and the production of the knife by Charles. In the case of the applicant Simpson, his Honour could not take into account either that fact or that a knife was used. As the Crown described it before us, s 113 is a kind of inchoate offence in that it only requires that a specific intention to commit a serious indictable offence be proved and it does not matter that the offence intended was not actually completed. But as I have indicated, no complaint was raised on the appeal that his Honour erred by taking into account a fact or facts giving rise to the more serious offence. Even if the Court disregards the fact that any property was stolen or, in Ms Simpson’s case, the use of a knife by Charles, the offence remains a serious one, and in my view is, on an objective view of the facts, towards the upper seriousness of an offence of its kind.
There was scant material before the sentencing judge with regard to Ms Simpson’s personal circumstances. She did not give evidence and there were none of the usual psychological or pre-sentence reports tendered. She was aged 22 years at the time of the offence and is of Aboriginal descent. The sentencing judge was informed that she had two very young children from her relationship with Charles and, while in custody, those children were living with Ms Simpson’s mother. She has a minor, although not irrelevant, criminal record for offences of violence. On 12 April 2002 she was placed on a good behaviour bond for 12 months for an assault. That bond was current at the time of the commission of the present offence and is thus a further aggravating circumstance in her case.
Ms Simpson has suffered from alcohol and drug abuse. She was granted bail on 21 December 2002 and entered the drug rehabilitation programme run by the WHOS organisation. There was a report before the sentencing judge indicating that she had progressed to level three of the programme. On 24 April 2003 she entered the Weigelli Rehabilitation Centre and was participating in a course with that organisation until she was sentenced.
Dr Negus made it known to the court through the Crown Prosecutor that he had helped a number of persons with drug and alcohol problems and that Ms Simpson was the only person who had never asked him for money. He also wanted the court to be aware of his opinion that she was a “very much different person when under the influence of alcohol and drugs”.
There are three grounds of appeal in relation to Ms Simpson. The first ground contends that the sentencing judge erred in failing to reduce the non-parole period to reflect the period of pre-sentence custody.
The applicant was in custody for the offence charged from 10 October 2002 until 21 December 2002, a period of two months and nine days. His Honour referred to this period and indicated that he was reducing the sentence from five and a half years to five years, three months and 21 days as a consequence. He then specified a non-parole period of 3 years. The sentence and non-parole period commenced from the date of sentence.
The complaint is that his Honour should have reduced the non-parole period to the same extent as he reduced the head sentence. It is argued that his Honour failed to follow the practice endorsed by this Court in R v McHugh (1985) 1 NSWLR 588, where Street CJ stated:
It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing, in particular in relation to remission or reduction entitlements; ………. A judge departing from this practice could be expected to indicate his reason for so doing.
It should be noted that McHugh was a case in which the appellant had continued in custody for a considerable period up to the date he was sentenced. This Court has repeatedly emphasised the importance of the practice being followed regardless of the different sentencing regimes in force from time to time. See, for example, R v English [2000] NSWCCA 245. However, it has been acknowledged that the sentencing judge can depart from the practice in an appropriate case and where reasons are given for doing so. See Leete (2001) 125 A Crim R 37.
It is trite law that a sentencing court must take into account the period served in pre-sentence custody where that period is referrable to the offence for which sentence is being passed. The court is required to take that matter into account by s 24(a) of the Crimes (Sentencing Procedure) Act. Section 47(3) of that Act also obliges the court to take time served into account when determining the commencement date of a sentence.
It is also trite law that the time spent in pre-sentence custody should be a matter to be considered in fixing the length of the non-parole period. In those cases where the sentence is backdated to a period before the sentence is imposed, the non-parole period will automatically be reduced by an amount equivalent to the reduction in the head sentence. This is because the non-parole period must begin on the date when the head sentence commences.
The difficulty arises in cases where, as here, the pre-sentence custody did not continue unbroken to the date of sentence. In such a case the court is faced with two options: it can simply state that the pre-sentence custody is being taken into account and reduce the sentence accordingly; or it can backdate the sentence even though the offender was not actually in custody on the date when the sentence is deemed to have commenced. Notwithstanding some doubt expressed about the latter practice in R v Sayak (NSWCCA, unreported, 16 September 1993), this Court has dealt with the matter in this way on more than one occasion. See R v McDonald (NSWCCA, unreported, 12 December 1995), R v Howard [2001] NSWCCA 309, and R v Phillips and Simpson [2002] NSWCCA 167. There is nothing in s 47 of the Act that would suggest that a court could not make such an order.
In my view, although there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody, there is much to be said in its favour. Firstly, it preserves the denunciatory and deterrent value of the sentence to be pronounced. If a sentence is decreased by a substantial period already served in custody, it can have the appearance of being inadequate both to public perception and when it appears in the statistical information that is now so often relied upon by sentencing courts. This was one of the reasons expressed in McHugh for the adoption of the practice and it remains a highly important consideration.
In McDonald, a case in which a judge deferred passing sentence in light of the fact that the offender had spent 17 months in pre-sentence custody, this Court stated:
The first submission made on behalf of the Crown is that, even if (which is not conceded) Abadee J were right to conclude that the time already spent in custody by the respondent was adequate in the circumstances, this was not a case in which the matter should have been dealt with by a deferred sentence upon the respondent entering into a recognizance. The Crown argues that, if Abadee J had been minded to produce the practical result that the respondent, subject to appropriate assessment by the relevant authorities, spent little or no further time in custody, he could have achieved that result by back-dating a sentence of imprisonment to commence on 3 November 1993, and providing for a minimum term to end at about the time of sentencing, together with an additional term. That a sentencing judge has power to back-date a sentence, even in circumstances where the offender has been at large during the intervening period, is not in doubt. That not infrequently happens in this court, and, when it does, the court makes it clear that it is aware, in imposing its sentence, that the prisoner has been at large during part of the period the subject of the sentence.
We agree with the Crown's submission. There is a significant difference between serving a part of a sentence in the community, on parole, and being at liberty on a recognizance. In the former case, the offender is serving the sentence, although in the community. Breach of parole has certain immediate consequences. More important, the community sees that the offender is subjected to a sentence.
In that case, the Court backdated the sentence to the date upon which the respondent first went into custody, notwithstanding that he had been at liberty pending the determination of the Crown appeal; a period of over nine months.

The practice of backdating the sentence also makes it obvious to the offender that he, or she, has received a reduction in the sentence for the period already spent in custody. It ensures that there can be no argument, such as is now presently before this Court, as to whether the discount was in fact given even though the sentencing judge said that the time served in custody was taken into account in the sentence imposed. The importance of this aspect of sentencing was recognised in R v Phillips and Simpson and in R v Galati [2003] NSWCCA 148. In Galati James J, with whom Smart AJ agreed, said:
[36]……………….It is true that, while a sentencing judge is required to take a period of pre-sentence custody into account, it is not obligatory for the sentencing judge to take the period of pre-sentence custody into account by the means of backdating the commencement of the sentence and that in Howard the Chief Judge at Common Law left open the option of reducing a sentence to be imposed so as to take into account a period of pre-sentence custody. However, in the present case, I consider that, notwithstanding the sentencing judge’s assertion in his remarks on sentence that he had taken into account the first period of presentence custody, the first period of presentence custody is not demonstrably reflected in the sentences which were imposed. The first two sentences, on which the other two sentences depend, were made to commence from 18 January 2002, a commencement date which would allow only for the second period of pre-sentence custody. The sentences which were imposed were for round periods of whole years, which tends to militate against any conclusion that an irregular period of one month and twenty six days was really taken into account.
The practice also avoids questions of disparity erroneously arising because a sentence, with which comparison is being made, has been markedly reduced by pre-sentence custody. Such a sentence, particularly where there are few comparable sentences for similar offences, can also skew the statistical information derived from sentences imposed by other courts and give a false indication of the range of sentences that have been imposed for a similar offence or on a similar offender.
The fourth, and probably less persuasive, reason for adopting this course is that it avoids lengthy sentences being imposed in terms of years, months and days, which, to my mind at least, looks faintly absurd and may suggest to the uninformed that sentencing is an exact science that can determine an appropriate period of imprisonment to a precise number of days.
I accept that the approach that was advocated in McHugh is a matter of practice and that a sentencing judge has a discretion as to how to take into account pre-sentence custody. See R v Nykolyn [2003] NSWCCA 229. But it should be emphasised once again that backdating is the preferable course and it should be adopted unless it is clearly inappropriate to do so. In Nykolyn Wood CJ at CL, with whom Simpson and Adams JJ agreed, stated at [33]:
While it was not strictly impermissible for her Honour to have reduced the non-parole period to account for the earliest period of pre-sentence custody, rather than backdating its commencement. I am not persuaded that there was necessarily an error in doing so. Had the applicant been given the full benefit of all of the pre-sentence custody in backdating the sentence and the non-parole period, the revocation of the earlier parole would have lost its effect. However the fact of the earlier period of custody was obviously a matter properly to be taken into account and which we should also take into account when we come to consider the balance of the matters relied upon, and in particular, the question of whether or not the sentence as a whole was excessive.
The present case is a good example of why the practice laid down in McHugh should continue to be applied and, in my opinion, the fact that a sentence would have to be backdated to a period when the offender was not in custody in order to comply with the practice is not a good reason for failing to follow it. In the present case, his Honour clearly reduced the head sentence by reason of the period served but there is a valid question arising as to whether the non-parole period was also reduced.
Of course, theoretically at least, a reduction in the head sentence should always bring about an equivalent reduction in the non-parole period. The non-parole period can never be considered in isolation but is always referable to the head sentence, at least under the sentencing scheme with which the Court is presently concerned. This must be so where no special circumstances are found, because then the non-parole period is a statutory percentage of the head sentence. But, where the court departs from the statutory relationship, there may be room for doubt about whether the offender received the entitlement unless the length of the non-parole period is such that it is obvious that the sentencing judge took into account the pre-sentence custody in calculating the length of the non-parole period. Questions arise, as they do here, where the term of the non-parole period does not appear to have the exactitude in calculation that was applied to determining the length of the head sentence.
As I am best able to calculate it, the non-parole period in the present case is 56 per cent of the head sentence. The applicant has to serve a minimum period of custody of three years before being eligible for release to parole. She then will have a period of nearly 2 years 4 months subject to parole supervision. This period is more than adequate, in my view, for the applicant’s rehabilitation.
Subject to any question of parity, which is raised by another ground of appeal, I believe that this ground should be rejected. While his Honour ought to have made it clear that he was taking into account the period of pre-trial custody in determining the non-parole period, and in my view should have backdated the sentence and non-parole period, I do not believe that the minimum period of custody should be further reduced. It was, in my opinion, a lenient non-parole period, even taking into account the period that the applicant had already served. I am not persuaded that, had his Honour backdated the sentence, as I believe he should have done, he would still have imposed a non-parole period of three years. Although he did not say so, there would have been no error in his Honour determining that the applicant should spend at least a further three years in custody before she could be released.
In any event I do not believe that any lesser sentence than that which the applicant now must serve is adequate to reflect the objective seriousness of her conduct and act as a general deterrent. The non-parole period was, even taking into account the period served before sentence, the very minimum that could have been imposed upon Ms Simpson.
The applicant has submitted that, by reason of her age, her relative lack of criminal record, the fact that it was her first sentence of imprisonment, the impact upon her mother and her children, her early plea and her immediate admission of guilt, the sentence was manifestly excessive. I do not agree.
This was clearly a most serious offence and she was the instigator of it. She knew that two men were to enter the premises of the victim in the early hours of the morning after she obtained entry for them by a ruse. She told police that, although she did not expect any violence, she knew that they were going to steal from him and it must have been obvious to her that there was going to be a confrontation between the men and the victim. His Honour described the offence as a “cowardly attack” upon the victim. Although that might have been an apt description of the role of the applicant Newman and Charles, her part in it was in some ways more repellent.
Ms Simpson knew the victim and had been helped by him in the past both morally and physically. He had been a support and comfort to her through difficult times. She returned that kindness and charity by instigating, planning and setting into motion the theft of his property simply to obtain money to purchase alcohol. But more than that, she knew how to gain entry to the premises notwithstanding the late hour and his apparent vigilance against intruders. She was aware of the one thing that he would be unable to resist: a call upon his Christian faith. She pretended that she wanted spiritual guidance, something that she had hitherto resisted. On that pretext she was able to achieve her plan of gaining entry for her two accomplices.
I accept that there was a difference in the criminality between the applicant and her two co-offenders, but I do not believe the gulf is as wide as the submissions on behalf of the applicant would suggest. It is clear that she was not only the means by which her co-offenders breached the security of the elderly man’s home. She was also intending to steal the victim’s property while he was distracted by the two men. The plea of guilty to the charge under s 113(3) accepts that she foresaw the possibility of the victim being wounded, and it, therefore, follows that she must have foreseen the possibility of there being some violence to the victim despite her protestations to the contrary. In any event, it is a matter of common sense that, if she allowed two men to gain entry to premises at night knowing that the occupant was at home and awake, there was going to be some sort of confrontation between the resident and the intruders and that it might well result in violence, not to the intruders, but to the vulnerable householder.
As his Honour recognised, there were a number of aggravating features in the offence, all of which applied to the applicant, either under s 113(2) or generally by reason of the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 or under s 21A of the Crimes (Sentencing Procedure) Act: These included the following: the offenders were in company; they knew the victim was in the premises alone; it was at night; the victim was an elderly and vulnerable person; there were injuries of a significant nature inflicted upon the victim; there was a degree of planning involved. In addition at the time the applicant was on conditional liberty for an offence of violence.
There was also, in my view, a significant breach of trust committed by the applicant: not in a technical sense but as a matter of practical reality. The applicant used her relationship with the victim to gain entry for herself and the two men in order to steal from him. Clearly he admitted her into his home, notwithstanding the late hour, because he believed she was alone and he trusted her.
It is clear that his Honour gave the applicant and her co-offenders a discount for the plea of guilty of 20 per cent. Although the Crown Prosecutor conceded that it was the first reasonable opportunity for the accused to plead to the indictment presented, the discount was appropriate in light of the plea coming at that stage in the proceedings.
The undiscounted sentence chosen by his Honour must have been about 7 years. As against a maximum penalty of 20 years and having regard to the aggravated features of this offence, I do not believe that such a sentence was outside his Honour’s discretionary range. I do not think that it could even be said to be at the top of the range for an offence with these aggravated objective facts. General deterrence was important and denunciation was essential.
As I have already indicated, I do not hold the view that the applicant’s criminality is substantially reduced from that of her co-offenders simply because she was not physically involved in the violence used against the victim or because she may not have intended that it occur. She was the instigator of, and a major participant in, an offence where she was aware of at least the possibility of the victim being wounded and she intentionally placed him into that peril. The criminal conduct of her co-offenders could not have occurred without her involvement in the offence. In my view she was to be appropriately punished for the resultant harm to the victim even though she did not actually participate in the conduct that caused it. She was not only criminally responsible for the harm inflicted upon the victim in a technical, legalistic sense, but she also bore moral responsibility that was to be reflected in an appropriate sentence.
I do not accept that his Honour failed to take into account that the applicant was going to face her first custodial sentence. It was an obvious consideration once his Honour referred, as he did, to her criminal record. His failure to mention that fact does not mean that he did not take it into account and the sentence, in particular the non-parole period, discloses that he did. For my part, I simply cannot see any justification for a non-parole period less than that imposed by his Honour.
The fact that any custodial sentence was going to impact upon the innocent, such as her children and the applicant’s mother, is not a matter that can avail her. They are not highly exceptional circumstances and cannot justify the avoidance or reduction of an appropriate sentence to reflect the seriousness of her offence and the importance of general deterrence. See Edwards (1996) 90 A Crim R 510 and R v Bednarz [2000] NSWCCA 533. The effect of a sentence on third parties is not one of the mitigating factors specified in s 21A and it is not a matter of mitigation in the present case.
It follows that in my view the sentence imposed by his Honour was well within his discretion and there is no error apparent in his remarks or to be inferred from the sentence imposed. In those circumstances I should look at the question of parity. But before I do, I will consider the challenge to his sentence by the applicant Newman.
The grounds of appeal relied upon in the case of the applicant Newman are that the sentencing judge failed to give appropriate weight to his “deprived upbringing and background as a mitigating feature on sentence” and that the sentence was manifestly excessive.
His Honour was, with respect, correct not to distinguish the culpability of this applicant from his co-offender Charles. The applicant was part of the initial violent attack upon the victim. He was present when Charles punched the victim in the face and produced the knife with which he threatened the victim. He then left the room, presumably to look for property to steal and not to gain assistance for the victim. He certainly made no effort or attempt to restrain Charles. When he returned the victim was wounded and obviously hurt. Again, rather than remonstrating with his co-offender or seeking to assist the victim, he helped his co-offender throw a mattress over the top of the hapless victim, as he lay injured on the floor.
He then took the victim’s vehicle for his own personal use. He was charged with an offence of taking and driving the vehicle without consent and Judge Urquhart dealt with that matter on a Form 1.
The applicant was aged 23 years at the time of the offence. He has a significant criminal record dating from 1997. He received a sentence of imprisonment in 1999 for a number of dishonesty offences including break, enter and stealing. He has offences of violence and in November 2000 was sentenced to imprisonment for an assault occasioning actual bodily harm. In July 2002 he again received a gaol sentence for offences of violence including two offences of assault occasioning actual bodily harm. He had, on one occasion, received a bond with a term of supervision by the Probation and Parole Service, presumably in an endeavour to assist in his rehabilitation. There was no report from that Service requested for the purposes of his Honour sentencing him.
There was in evidence a psychological report setting out the applicant’s background, which is as follows. He has never met his natural father and had a poor relationship with his de facto stepfather, who, he believed favoured his natural children at the expense of the applicant. He has moved for much of his life between living at home and living with members of his extended family. He has never had stable employment. He had attempted suicide on two occasions, once because he was sick of life and the other after the end of a relationship. He began drinking alcohol at the age of 13 years, used cannabis from the age of 14 years and commenced using amphetamine intravenously at age 17. He had used heroin since being returned to custody for the present offence.
The applicant indicated to the psychologist that he was ashamed of the offence and that at the time he was in debt by reason of his drug usage.
Psychological testing indicated that he was in the Below Average range of intelligence. The psychologist opined that the applicant had “grown up with a sense of resentment about the circumstances of his birth and a perception that he has always been treated unfairly…[h]e acts out his anger and resentment in antisocial patterns of behaviour and self destructiveness”. The psychologist believed that the applicant was “emotionally and psychologically fragile and unstable and has attempted suicide twice in the recent past when he has perceived life was worst than usual”. She thought that the applicant might be a suitable candidate for an anger management course while in custody and that he needed urgent assistance for his drug usage.
Counsel for the applicant relied heavily upon the, well known, but frequently misunderstood, decision of Wood CJ at CL in Fernando (1992) 76 A Crim R 58 in which the Chief Judge set out a number of principles that guide the sentencing of persons who live, or have been brought up, in Aboriginal communities. The principles enunciated in that case are as follows:
"(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing Court should ignore those facts which exist only by reason of the offender's membership of such a group.
(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
(C) It is proper for the Court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the Courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the Court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
(F) That in sentencing persons of Aboriginal descent the Court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reasons of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."
Counsel for the applicant relied on (E) and (F) above. He stressed that the applicant had a significantly deprived background in which alcohol played a major part.

It is worth noting the background of the offender who was being sentenced by Wood CJ at CL. His Honour gave the following account of his personal circumstances:
His history is that of a semi-educated Aborigine from a large family with a deprived background. His parents and siblings at one time or another have all drunk to excess and his parents separated for that reason when he was relatively young.
At the age of 14 he was sent away by the welfare to an isolated property where he received training as a station hand from an elder member of his race. At the age of 16 he moved on to Queensland to get away from the welfare and there unfortunately he embarked upon the consumption of spirits and wine being barred because of his race from hotels.
He also worked around stations doing seasonal work, ringbarking and the like. After periods in the bush he was accustomed to return to town and drink heavily for several days.
At the age of 18 he became introduced to tent boxing and he joined a troupe travelling around Australia for 12 months or so. It may be assumed that he had several fights each day in the poorly supervised conditions of the tents and he was knocked out several times.
Since then he has largely worked in and around the Walgett area doing the work of a station hand, cotton chipping, shearing, ringbarking and the like.
The offence was described by his Honour as being “impulsive and totally unpremeditated”. The offender was so intoxicated that he lacked the specific intention required for more serious offences than that with which he was being sentenced.
The present applicant is described in written submissions on his behalf as being “of Aboriginal descent”. Assuming that was a relevant matter, there was no evidence of that fact before the sentencing judge. The psychologist stated that at one stage in his early teens the applicant was keen to locate his father, “whom he believes is Aboriginal”. He lost interest in this pursuit when he learned that his father “was probably a copper”. The only other suggestion of his possible ancestry is that he believed he was darker-skinned than the other children at school and so ended up in fights. However, the sentencing judge was addressed on the basis that the applicant was an Aboriginal and the Crown raised no objection. His Honour did not mention the applicant’s racial origins. The applicant was not at the hearing of this appeal.
In any event, there was nothing in the material that indicated that his Aboriginality was a relevant matter and the reference in the submissions to the case of Fernando is, in my view, completely misguided. There was not the slightest material before the sentencing judge to suggest that the principles enunciated in that case had any relevance to the sentencing of the applicant. Neither that decision nor those principles were referred to during the sentencing hearing. They were not, in my opinion, engaged by anything said by his legal representative to the sentencing judge. In particular, contrary to the submission made on the applicant’s behalf in this Court, they did not arise from the following submission made to Judge Urquhart:
I would simply ask your Honour to place this person and this crime in context, to accept that that is the person who committed the crime; that he is a young Aboriginal man who is quite deprived; has some very difficult problems; whilst seriously intoxicated was involved in what I’d say again is an opportunistic offence, in that the wounding was opportunistic in it happened in the context of the crime which was initially intended to be much, much less severe.
It has been pointed out on numerous occasions by this Court, including those benches of which the Chief Judge has been a member, that the principles and statements set out in Fernando have to be read in context. It is not every case of deprivation and disadvantage suffered by an offender of Aboriginal race or ancestry that requires, or even justifies, the special approach adopted in that case. In light of the submissions placed before this Court, and which were the substantial basis upon which we were asked to intervene, it is probably as well to set out again those cases that have considered the application of the Fernando principles.
In Ceissman (2001) 119 A Crim R 535, Wood CJ at CL, with whom Ipp JA agreed, made comment about the limited application of the principles in Fernando to, and the misapplication of them in, the case then under consideration. It was a Crown appeal, one of the grounds being that the sentencing judge misapplied Fernando. In allowing the appeal the Chief Judge stated:
29 Next, it appears to me that his Honour was at risk of mis-applying the decision in Fernando (1992) 76 A Crim R 58, referred to with approval in Stone (1995) 84 A Crim R 218. As I endeavoured to explain in Fernando, the eight propositions there enunciated were not intended to mitigate the punishment of persons of Aboriginal descent, but rather to highlight those circumstances that may explain or throw light upon the particular offence, or upon the circumstances of the particular offender which are, referable to their Aboriginality, particularly in the context of offences arising from the abuse of alcohol.
30 The present is not such a case, nor is it one which needs to be understood as having occurred in a particular local or rural setting, or one involving an offender from a remote community for whom imprisonment would be unduly harsh because it was to be served in an environment that was foreign to him or her.
31 That Fernando is not to be regarded as a decision justifying special leniency, merely because of the Aboriginality of the offender, was recognised in Hickey NSW CCA 27 September 1994 where Simpson J noted that the first of the propositions stated by me in that decision "is that sentencing principles are non-discriminatory in that they apply to all accused without differentiating by reason of the offender’s membership of a particular racial or ethnic group". This proposition is however varied by the recognition that those factors which constitute the disadvantage, and which may arise by reason of membership of the particular group, may have a role to play in the sentencing determination.
32 The principles stated should not be elevated so as to create a special class of persons for whom leniency is inevitably to be extended, irrespective of the objective and special circumstances of the case. To do so would itself be discriminatory of others.
33 In the instant case, I am unable to see the existence of any factor arising from the fact that the respondent's grandfather was part Aboriginal, that would, in accordance with Fernando, attract special consideration. That does not mean that his subjective circumstances were to be ignored or diminished. It simply means that Fernando did not require the application of any consideration additional to those applicable in every case of an offender with a deprived background.
In R v Pitt [2001] NSWCCA 156 Wood CJ at CL, with whom Sully J agreed, stated:
[19] As I pointed out in Ceissman (2001) NSWCCA 73, there is a danger of misinterpreting Fernando (1992) 76 A Crim R 58 as a decision justifying special leniency on account of an offender’s Aboriginality. The error in that approach was recognised in Hickey NSWCCA 27 September 1994, where Simpson J noted that the first of the eight propositions stated by me in Fernando, was “that sentencing principles are not discriminatory in that they apply to all accused without differentiating by reason of the offender’s membership of a particular racial or ethnic group.”
[20] In Powell, Simpson J similarly noted that it is a mistake to rely on Fernando as authority for a proposition that Aboriginal heritage of itself is a mitigating circumstance, and warned that care must be taken to ensure that recognition of the social and economic problems that frequently attend Aboriginal communities, and the principles stated in Fernando, do not have the unintended consequence of devaluing the effect of offences on victims.
[21] What Fernando sought to do was to give recognition to the fact that disadvantages which arise out of membership of a particular group, which is economically, socially or otherwise deprived to a significant and systemic extent, may help to explain or throw light upon the particular offence and upon the individual circumstances of the offender. In that way an understanding of them may assist in the framing of an appropriate sentencing order that serves each of the punitive, rehabilitative and deterrent objects of sentencing.
In R v Fernando [2002] NSWCCA 28, when allowing a Crown Appeal against the respondent who was an Aboriginal, the Chief Justice, with whom Wood CJ at CL and Kirby J agreed, stated:
[66] The sentencing principles to be applied by a sentencing court apply in every case, irrespective of the membership of the particular offender of an ethnic or other group. Nevertheless, when imposing sentences courts must take into account, pursuant to those very principles of general application, all of the facts relevant to the circumstances of the offence and of the offender, including facts which may exist by reason of the person’s membership of a particular group. (See eg Neal v The Queen (1982) 149 CLR 305 at 326.)
[67] Aborigines who commit crimes of violence are not accorded special treatment by the imposition of lighter sentences than would otherwise be appropriate having regard to all of the relevant considerations, including the subjective features of a particular case. An offender is not entitled to any special leniency by reason of his or her Aboriginality. The principle of equality before the law requires sentencing to occur without differentiation by reason of the offender’s membership of any particular racial or ethnic group. Nevertheless, particular mitigating factors may feature more frequently in some such groups than they do in others. (See R v Fernando (1992) 72 ACrimR 58 at 62-63 as further explained in R v Hickey (NSWCCA, 27 September 1994; unreported); R v Stone (1995) 84 ACrimR 218 at 221-223; R v Ceissman [2001] NSWCCA 73 esp at [29]-[33]; R v Pitt [2001] NSWCCA 156 at [19]-[21].
[68] The criminal justice system has accurately been described as a “hopelessly blunt instrument of social policy and its implementation by the courts is a totally inadequate substitute for improved education, health, housing and employment for Aboriginal communities” R v Daniel [1998] 1 Qd R 499 at 530 per Fitzgerald P. His Honour outlined the difficulties that arise in this regard at 530-532.
[69] The circumstances of the present case are, regrettably, repeated across the entire community. This Court frequently hears appeals from young people who have suffered deprivation in their personal life, have succumbed to addiction - usually first to marijuana and then to heroin - and committed crimes of burglary and armed robbery in order to acquire funds to feed the habit.
In R v Morgan (2003) 57 NSWLR 533 Wood CJ at CL, with whom Simpson and Adams JJ, agreed, having referred to what his Honour said in the original Fernando case stated:
[20] As has been made clear by subsequent decisions, these remarks were not intended as an exhaustive statement of sentencing practice, or as justifying any special leniency in relation to offenders of the class to whom they applied: R v Hickey NSWCCA 27 September 1994, R v Ceissman [2001] NSWCCA 73 and R v Pitt [2001] 156.
[21] Rather they were intended to reflect an understanding of some of the factors which can lead a person of this racial background into offending behaviour, and which, in appropriate cases, may have a particular relevance for the way in which a sentencing order may suitably be framed. They can have also a particular relevance for persons appearing before the courts who come from remote parts of the country, and who have particularly disadvantaged backgrounds, or when the offence is alcohol-related.
[22] The present offences were not alcohol-related and the appellant did not come from a remote community, nor was he unfamiliar with the justice system. While the “Fernando considerations” could properly be taken into account, they added little to the present sentencing exercise beyond those matters which would otherwise have been taken into account, for any offender, as subjective circumstances. They were not favourable, but they did point to the need for a sentence that took into account the rehabilitative aspects, particularly in relation to post release supervision and assistance.
Counsel for the applicant relied upon the decision of this Court, comprised by a two judge bench, in R v Powell [2000] NSWCCA 108; a decision referred to by Wood CJ at CL in Pitt and in which Simpson J cautioned against the misuse of Fernando. But that was a case in which the principles and approach adopted in Fernando were clearly applicable. The applicant was a young Aboriginal who began drinking alcohol at an early age while living on an Aboriginal reserve. It was a case where there was a clear relationship between his Aboriginality and the circumstances in which he found himself in an “entrenched pattern of disadvantage”.
In the present case the applicant commenced drinking alcohol at an early stage in his life and progressed eventually to the misuse of drugs. He was heavily intoxicated on the evening of the offence. The psychologist reports that the applicant “began drinking at age thirteen and did so every weekend with mates in Narromine. After he left school in mid-teens he said he was ‘drinking with old mates’ who were alcoholics”. This account of his drinking habits did not itself, or when taken into account with any other feature of the applicant’s life, justify, let alone require, the sentencing judge applying, or even referring to, the decision of Fernando and the principles set out in it. It is perhaps worth noting that the applicant was represented by the Aboriginal Legal Aid Service and his legal representative did not apparently think that the decision was sufficiently relevant to refer to it.
Even assuming that the applicant is of Aboriginal ancestry, this is not a case where any special consideration is due to the applicant on that account. The background of the applicant, while lamentable, is not in any way unique nor is it restricted to any particular community group. Those in society who abuse alcohol and drugs are almost invariably persons who have suffered some type of deprivation or abuse early in life and, as a result, suffer from low self-regard, depression and pessimism.
The sentencing judge referred to matters in the applicant’s background obtained from the psychologist’s report and it should not be inferred that he did not take them into account when determining the sentence simply because he did not state that he was doing so. His Honour found special circumstances by reason of the applicant’s youth, but that in itself would not justify such a finding in light of the applicant’s criminal record. It is clear that his Honour took into account the need for the applicant’s rehabilitation, even though he found that “he has much ground to cover to progress his motivation for rehabilitation”. His Honour made specific mention of the psychologist referring the applicant to a programme in gaol for the prevention of violence.
It has been submitted that, in light of the applicant’s background and personal difficulties, his Honour erred in determining a starting sentence of 10 years imprisonment. I do not agree. The offence was very serious and the applicant’s role in it substantial. He was a participant in the initial violence to the victim. In view of his criminal history and the nature of the offence, it was open to his Honour to give little weight to the applicant’s subjective circumstances, including the fact that he was of below average intelligence The applicant’s use of alcohol was not a matter that had to be taken as a mitigating factor in light of the applicant’s criminal record and notwithstanding his Aboriginality. Although the applicant told the psychologist that he did not know of the existence of a knife, there is no reason why his Honour should have found that to be a fact. The applicant refused to participate in a police interview and did not give evidence. Statements of facts contained in reports should not be uncritically accepted in the absence of evidence from the applicant. See R v Niketic [2002] NSWCCA 425 and Palu (2002) 134 A Crim R 174.
Although a related offence, the taking and using of the victim’s motor vehicle was a matter that was properly to be reflected in the sentence for the offence on the indictment. As counsel for the applicant conceded, the sentence imposed was within the range for an offence under s 113(3), although he submitted it fell within the upper regions of that range. In my view it was appropriate that it did so.
I must now consider whether, in light of the sentences imposed upon the applicant Newman and Charles, the applicant Simpson has a justifiable sense of grievance. There is no need to review in this, already overly-lengthy, judgment the principles upon which this Court exercises its discretion to intervene on the basis of disparity.
The ground is based upon two factors as a result of which, it is argued, Ms Simpson should have received a lesser sentence than she did when comparison is made with the sentences imposed upon her co-offenders. The first is that, as the trial judge recognised, the applicant was not involved in the assaults upon the victim nor was she present in the room when they occurred. As I have already indicated, I am of the view that these matters carry little weight when regard is had to her legal, moral and factual responsibility for the injuries that resulted from her conduct in allowing the men into the house. As I have already remarked, she placed the victim in this peril and she did so having at least a foresight of the possibility of physical harm resulting.
The other matter relied upon in this ground of appeal is the difference between the applicant’s criminal record and that of her co-offenders. While it is true that it was not as extensive and she had never served a gaol term before, she was on a bond for an offence of violence at the time.
This is a case where a single judge sentenced the three offenders on the one occasion. It was principally a matter for the exercise of his discretion to determine relative criminality and the impact of the subjective circumstances of each. I am far from persuaded that he erred in that task or that the applicant can have any justifiable sense of grievance at the sentence she received, which, as I have already indicated, was a lenient one given her criminality.
It is clear then that in my view the appeals should be dismissed as no error has been shown that would warrant interference by this Court. It is, therefore, unnecessary to have regard to the considerable amount of fresh evidence placed before the Court that was to be considered if the applicant Simpson was to be re-sentenced. Nevertheless, I wish to make some brief observations on that material.
This case is a good example of a trend that appears to be developing where the proper subjective case for the offender is presented before this Court rather than before the sentencing judge. The consequence is that, if any error can be shown, this Court will have to undertake the re-sentencing exercise on a subjective case, which, if not different to that placed before the sentencing judge, contains considerably more material in amplification of matters that were raised at first instance and, not infrequently, through submissions from the bar table. As I have already indicated, there was scant material placed before the sentencing judge notwithstanding the seriousness of the offence, the inevitability of Ms Simpson being sentenced to a substantial term of imprisonment, and the subjective material that has now been presented to this Court and which should have been placed before the sentencing judge.

It should be clearly understood that such material will not be taken into account by this Court unless some error of law has been shown in the exercise of discretion by the sentencing judge and which is of such a nature that this Court is required to re-exercise that discretion. In the present case, had I formed the view that the non-parole period should be adjusted in order to take into account the period served in pre-sentence custody, I would not have considered the fresh material and re-sentenced the applicant upon it.
The second matter concerns the tender of letters written by the victim in which he expresses his forgiveness of Ms Simpson and states his view that the sentence was, in her case, excessive. Clearly the view of the victim as to the appropriateness of the sentence is irrelevant, and Ms Cox who appears for Ms Simpson did not rely upon it. However, Ms Cox submitted that, if the Court was required to re-sentence the applicant, it should take into account the attitude of the victim to Ms Simpson and her involvement in the offence.
In Palu I said:
[37] The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (NSWCCA, unreported, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim.
This statement was recently applied by Kirby J in R v Huynh [2003] NSWSC 1066.
Although Ms Cox sought to distinguish that case from the present on the basis of the different offences involved, I believe that the statement of principle applies equally to a home invasion. Such an offence is as much, if not more, an affront to the peace and good order of the community as is a street fight.
Although victims of crimes are entitled to make a statement to the court as to the effect of the crime for which sentence is being passed upon them, they are not entitled to express their views as to the appropriate sentence to be imposed, the matters to be taken into account by the sentencing judge, or, their personal opinions of the offender. See R v Walsh and Sharp [2004] NSWSC 111 and s 28(3) of the Crimes (Sentencing Procedure) Act.
This is not to suggest that there may be the comparatively rare cases where forgiveness of the accused by the victim may be a relevant fact. Most cases, where this issue has been considered, have been in the context of domestic violence.
In R v Bradford (NSWCCA, unreported, 6 May 1988) the offence was one of malicious wounding with intent committed by an offender on his wife when she indicated that she was going to leave him and end the marriage. After the offender stabbed his wife, he slashed his own throat and wrists in a suicide attempt. The wife eventually returned to live with the offender and forgave him, expressing the view that the charge should not be prosecuted. In that context and having regard to the fact that the offender was aged 53 years with no criminal record, this Court accepted that the attitude of the victim was a relevant consideration. Street CJ said:
Cases of this nature are notoriously difficult when it comes to the matter of sentence. One must, of course, recognise the very real concern of the victim of such an offence and the potential victims of similar offences. In this instance the attitude of the victim is manifested by her having returned to live with the appellant. It does not of course lie in the hands of a victim to determine what punishment should be meted out for a criminal offence. Punishment can properly be tempered in the light of the victim’s attitude. But the community’s interest in ensuring law abiding conduct by its citizens must be given due weight when determining the sentence in a case such as this.
R v Glen (NSWCCA, unreported, 19 December 1994) was an appeal against conviction and sentence for an offence of sexual intercourse committed by the offender against his wife. The wife had indicated that she did not want the offender to go to gaol and wished to give evidence on his behalf. As to an argument that the sentencing judge failed to take a number of mitigating factors into account including the attitude of the wife, Grove J, with whom Loveday AJ agreed, stated:
None of these matters was overlooked by the sentencing judge. In particular, he made express reference to the attitude of the complainant. It cannot be that the attitude of complainants can govern the duty of a court when proceeding to sentence. As has been pointed out elsewhere, the adoption of such a practice or philosophy would involve taking into account the desires of unforgiving complainants for vengeance or salutary penalty.
Simpson J stated:
There are two main arguments of principle against the proposition that this Court should give any weight to the expressed wish of the victim in this case that the applicant not be incarcerated. The first concerns the importance, especially great in cases of domestic violence, given the history that I have alluded to, of general deterrence. This Court must send a signal to domestic violence offenders that, regardless of self interest denying forgiveness on the part of victims, those victims will nevertheless receive the full protection of the law, insofar as the courts are able to afford it to them. It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.
The second matter referred to by her Honour concerned the existence of legislation compelling complainants to give evidence in domestic violence offences and Simpson J was of the view that the policy behind such a provision equally applied to receiving evidence of the victim’s post-offence attitude.
The remarks by Simpson J, set out above, were expressly approved in Rowe (1996) 89 A Crim R 467 at 472 and applied in Kanj (2000) 118 A Crim R 329.
In my view, the present offence is one where general deterrence is so important, denunciation so significant, and the objective facts so serious that there can be no role for the victim’s attitude to play in the Court fulfilling its duty to impose an appropriate sentence to reflect those aspects of punishment.
In my opinion the Court should order that the applications for leave to appeal be granted but the appeals dismissed.
SHAW J: These are two applications for leave to appeal against the sentence imposed on the applicants by the District Court at Griffith on 7 May 2003.
The offences in relation to which pleas of guilty were entered arise under s 111(3) Crimes Act 1900 (NSW) and amount, in substance, to charges that the applicants entered a dwelling with intent to commit a serious indictable offence, mainly stealing, with wounding.
I have had the benefit of seeing in draft the detailed reasons of my colleague Howie J and thus it is unnecessary for me to recount the detailed facts and circumstances of the case. But it is pertinent to observe that the offenders were drug users who sought to obtain money for the purchase of drugs and/or alcohol and that they went to the home of the victim in order to obtain that money.
This was obviously a very serious offence and a significant penalty was called for. Accordingly, I respectfully agree with much that Howie J has said and, in particular the importance of general deterrence in cases of this kind.
The question before this court, is, however, whether the penalty imposed by the sentencing court was manifestly excessive. In assessing this, it is relevant in my opinion to take into account that the victim whose home was invaded was significantly injured, requiring stitches to various parts of his body, a fractured cheekbone, broken ribs and a bruised kidney and also incurred nerve damage to his face.
In relation to Mr Newman, the sentencing judge sentenced him to imprisonment for eight years, expiring on 9 October 2010, with a specified non-parole period of five years. The other applicant in this appeal Ms Simpson was sentenced to imprisonment for 5 years, 3 months and 21 days, with a non-parole period of 3 years.
As I have emphasised, significant penalties were called for and I would give great weight to the discretion of the sentencing judge dealing with matters of this kind.
It was expressly put to the sentencing judge that the crime needed to be placed in its context, that is to say references were made to the offender (Newman) being a young aboriginal man who is quite deprived and has difficult problems, and he was contrite expressly conceding that he had done something “totally wrong”. There was material before the sentencing judge that a psychologist indicated his “shame” about the conduct and there was an acceptance of a prison sentence. The contrition was evidenced by a plea of guilty upon the applicants’ arraignment before the District Court, that is the first occasion on which the matter was before that court.

So far as I can ascertain the detailed written statements of the victim (Dr Negus) were not placed before the sentencing judge, but they are before this court in the event that the court determines to re-sentence the applicants. However, what was put forward by counsel for Ms Simpson was that: “… so far as the female is concerned Dr Negus has specifically asked me to say to the court that he has helped a number of young people so far as drug and alcohol problems are concerned, and she, so far as he could recall, was the only one that never asked for money up until the time of this offence. And that further, he asked me to tell the court, so far as he was able to observe, she was very much a different person when under the influence of drugs or alcohol.” (Transcript p 8, 6 May 2003).

By letter of 2 March 1996, the victim expressed the view that the sentence on Ms Simpson was too harsh and that he would be happy to assist to have it reduced. He refers to the apology proffered to him immediately after the sentence was imposed, that she was forgiven and that her part in the incident was “over and forgotten.” It was said that she played no part in the violence, and that the sooner she got out of prison the better for her, and the children so she can be helped “to get her life together.”

Counsel for the two applicants have submitted what are, in my view, cogent reasons why the sentence and/or the non-parole period should be reduced to some extent. They have rightly conceded the seriousness of the offences but have pressed upon this court a number of mitigating factors. I am unable to accede to the proposition that the fact that the applicants were under the effect of alcohol should play a significant role in the sentencing process. Nor am I much influenced by the proposition that Mr Newman was below average intelligence, although it does seem to me to be relevant that Mr Newman was unaware of the presence of a weapon carried by a co-accused, that both applicants were relatively young people without a vast prior criminal history, and that there were early pleas of guilty in both cases. I note that Mr Newman has been previously convicted for assaults occasioning actual bodily harm and for break, enter and steal with intent, and for other offences. However, he was not on conditional liberty at the time of the commission of the currently relevant offence. Ms Simpson does not have an extensive record of criminal convictions although she does have convictions for malicious damage, assault of a police officer and common assault. She was on a 12 month bond which was in force when she committed the offence which resulted in the current sentence.
There is a clear element of aggravation involved in this offence, namely the wounding of the victim. It also has to be acknowledged that the conduct of Ms Simpson was deceptive and active in the sense that she tapped on the windows of the victim’s house and said, I take it disingenuously, “I want to talk to you about becoming a Christian” which resulted in the victim unlocking the door and letting the applicants enter the house. A person who is not an applicant in these proceedings assaulted the victim and produced a knife. The actual injury suffered by the victim was inflicted by that person.
Against the arguments of counsel for the applicants are the factors that the maximum penalty prescribed by the legislature for this offence is imprisonment for 20 years and that the sentencing judge has provided careful and considered remarks on sentence. I am unable to disagree with the conclusion of the sentencing judge that what was involved amounted to a “cowardly physical attack” on a 67 year old victim, although his Honour was correct in saying that those actions may not have been actively participated in by the current applicants, Mr Newman and Ms Simpson, and I think that his Honour was correct in finding that the role of Ms Simpson must be seen as less than the role of the other 2 participants. I also acknowledge that his Honour has carefully had regard to the statutory criteria prescribed as the purposes for which a court may impose a sentence on a person who has committed an offence. His Honour also expressly allowed an element of discount because of an early plea of guilty, although I am of the view that a discount of 25% would have been more appropriate than the 20% applied: R v Thomson and Houlton (2000) 49 NSWLR 383.
Only two matters concern me in this case which involve questions of possible reconsideration by this court of the sentences. But they are, in my view, matters of significance. One is the aboriginality of the 2 applicants and the second is the remarkably charitable attitude of the victim towards the way in which the sentencing process should be dealt with. I turn to deal with those 2 considerations.
As I apprehend it, it was not in dispute at trial, nor in this court on appeal, that the 2 applicants were aborigines. In my opinion, although the approach to sentencing should be non-discriminatory, relevant regard can be taken in relation to persons from a background of socio-economic disadvantage which may be associated with growing up as an indigenous citizen of this country. This is not a matter to which the sentencing judge adverted. Yet, it seems to me that the carefully crafted principles in the case of Stanley Edward Fernando (1992) 76 A Crim R 58 were applicable. In that case Wood J in this court formulated, having regard to a series of earlier judgments, a number of propositions as follows:
(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group.
(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.
Those then are the principles which I propose to bring to bear in this difficult case. Against the subjective severity of the offence involving as it does the use of a knife to inflict substantial wounds by a man with some record for prior violence and who was on a recognisance at the time are to be weighed the following features:
(a) His deprived background and involuntary removal at an early age to an isolated mission property.
(b) His early introduction to alcohol and longstanding abuse of it within communities where regrettably such conduct is not only the norm but positively encouraged by peer group pressure.
(c) The fact that he was exposed to a very significant gaol sentence when a young man for an offence which today in the case of an offender in his position would not have justified such an outcome which was then followed by numerous brushes with the criminal law for conduct which today again would not have attracted such attention.
(d) His favourable record for gainful work and his desire to advance that record by seeking full-time station work.
(e) The fact that he was substantially disinhibited by alcohol at the time of the offence.
(f) The steps that he has already taken towards breaking his alcohol problem and his greater awareness of the need for it.
(g) His obvious remorse and contrition.
(h) The fact that the victim has substantially forgiven him and would prefer that he not go to gaol.
(i) His early plea of guilty which the Crown accepted to a lesser charge but in full satisfaction of the indictment.
(j) The fact that his earlier record almost exclusively, if not entirely, is alcohol-related and displays some significant periods of freedom from criminality.
(k) The fact that he has in the past observed the conditions of recognisances and also has satisfactorily fulfilled the requirements of community service orders.
(l) The indications that he may possibly have some organic brain damage due either to the effects of alcohol or fighting or possibly both which are likely to have affected his behavioural controls particularly when affected by alcohol.
I emphasise, as did his Honour in that case, that the relevance of aboriginality is not necessarily to mitigate “but rather to explain or throw light on a particular offence and the circumstances of the offender.” That judgment also notes the correlation of alcohol abuse and violence with some Aboriginal communities and a need for “more subtle remedies” than might ordinarily be provided. I respectfully agree with his Honour’s crystallisation of those principles.

As I understand it, the Crown does not dispute that Fernando, although not referred to, or aboriginality, although not referred to at first instance, is of some relevance. Rather, the Crown says that the subsequent considerations by the courts of Fernando limits its effect, and in any event the sentences were in all of the circumstances appropriate and justifiable.
I propose to consider the way in which Fernando has been subsequently dealt with in this and other jurisdictions in Australia. In Scott Andrew Stone (1995) 84 A Crim R 218 James J observed the argument that the principles articulated by Wood J could be significantly if not totally “eroded” on the basis that a defendant in a criminal case had committed similar serious offences in the past. However (at page 224) his Honour held that in the circumstances of that case the sentencing judge erred in giving only limited effect to the principles stated in Fernando on the ground that the applicant had committed similar serious offences in the past. His Honour went on to say that, although the offences were objectively serious,
“ … the seriousness of the offences was to some extent mitigated by the circumstances that the offences were not premeditated, that the applicant could quite readily have formed the impression that a young fellow Aborigine ….. was being arrested by the police for no good reason, and that the weapon which the applicant used was not a weapon such as a knife or a gun which he had been carrying …”
Newman J agreed with James J and said that the earlier judgment of Simpson J in this court in Hickey (unreported), 20 September 1994 CCA, NSW, reflected the fact that her Honour “fully approved of Wood J’s statements of principle” in Fernando. In Maynard Daniel (1997) 94 A Crim R 96 (Qld) the Court of Appeal in Queensland considered the question of the sentencing of aborigines. I agree with the dissenting judge in that case (Fitzgerald P) who set out in detail and applied the principles formulated by Wood J in relation to this difficult question (p 113). In doing so, his Honour cited the observations of Kirby ACJ in Russell (1995) 84 A Crim R 386 to the effect that “the circumstances for considering aboriginality as a legitimate concern in sentencing” had been explained in Fernando. Whilst the majority of the court disagreed with Fitzgerald P in his Honour’s proposition that the eligibility for parole should have been varied, it does not seem to me that there was any significant difference in point of principle. Moynihan J drew attention (at p 130) to the impact of cultural or other considerations in the sentencing process and to the fact that the trial judge was aware of and had adverted to such factors. The majority held that the sentencing judge considered all relevant considerations and declined to grant an application for leave to appeal against sentence (McPherson JA agreed with Moynihan J). The Court of Criminal Appeal in the Northern Territory in Inness Wurramara (1999) 105 A Crim R 512 at [34] cited the judgment of Wood J in Fernando, in a particular context, where it was said that members of an aboriginal community should not be deprived of the protection of the criminal law, but expressed no general disagreement with the factors articulated in Fernando. In R v Powell [2000] NSWCCA 108 at [15] Smart AJ emphasised that violent acts in domestic situations must be regarded with real seriousness. His Honour noted the principal attack of the applicant on the sentencing process to the effect that there had been a failure to consider the principles referred to in Fernando, and that, in particular, there had been a background of growing up in an area where alcohol consumption was the norm and that the family background of the applicant was distressing and disadvantaged. The sentencing judge in that case had noted the submissions made by counsel for the defendant but “did not herself embark upon any of the considerations referred to in Fernando.” His Honour said at [17] that:
this was a case where those principles [that is Fernando] should have been applied. The valiant effort made by the Crown to suggest, in effect that the judge applied the Fernando principles and, alternatively, that they had no weight in this case cannot succeed. The applicant has established error and this court must re-sentence.
It is true that, in the result of that case, the appeals against sentence on each of the counts were dismissed, except the appeal against sentence on a count of malicious wounding was allowed and a variation was made to the minimum term of imprisonment which had been imposed at first instance. Simpson J agreed with the orders proposed and emphasised that it was “a mistake” to rely on Fernando as authority for a proposition that aboriginal heritage is “of itself” a mitigating circumstance. Rather, her Honour explained Fernando as an acknowledgment that:
the well-known social and economic problems that frequently attend aboriginal communities warrant a degree of leniency, but it is the disadvantage associated too often with Aboriginality that warrants that degree of leniency and not the fact of Aboriginality, per se. (at [23])
Having regard to all of those considerations, it seems to me that there was a material error in not referring to the Fernando principles and not acknowledging as at least one relevant consideration the aboriginality of the applicants and the social and economic difficulties flowing from that fact. Accordingly, I would favour a re-sentencing of the applicants by this court.
In addition, it is said that the sentencing judge should have taken account of the opinions of the victim tendered before him. We are in an environment in the criminal justice system where increasing attention is given to views of the victim in relation to sentence, but of course not as to guilt or innocence and normally contending for a harsh sentence. If weight is to be given to the views of victims as to the penalty and its severity are to be regarded as relevant, it seems to me by parity of reasoning that some weight, (perhaps marginal) should be given to the view of the victim who urges leniency. In R v Bradford (Court of Criminal Appeal, unreported 6 May 1988) Street CJ said that:
…it does not of course lie in the hands of the victim to determine what punishment should meted out for a criminal offence. Punishment can properly be tempered in the light of the victim’s attitude. But the community’s interest in ensuring law abiding conduct by its citizens must be given due weight when determining the sentence in a case such as this.
These remarks were made in a context where a victim had returned to live with an offender who had committed violent acts upon her. As was said in R v Peter James Glen (1994) NSWCCA 19 December 1994 (unreported) by Grove J in response to a submission that the trial judge had fallen into error in failing to give adequate weight to, inter alia, the attitude of the complainant in a case involving an allegation of sexual intercourse without consent:
It cannot be that the attitude of complainants can govern the duty of the court when proceeding to sentence. As has been pointed out elsewhere, the adoption of such a practice or philosophy would involve taking into account the desires of unforgiving complainants for vengeance or salutary penalty.
However, in the circumstances of that case, Grove J said that this matter had not been overlooked by the sentencing judge. On the other hand, Simpson J held that evidence of forgiveness might have only “minor relevance” when compared to the importance of general deterrence. Loveday AJ agreed with the judgment of Grove J. Nothing in that case, it seems to me, determined that the charitable views of the victim should be ignored altogether in sentencing, that is, to be regarded as totally irrelevant
If this court were to re-sentence, it seems to be not in contest that Ms Simpson has done well in prison, has been studying music and attempting a variety of courses within Berrima Correctional Centre. The prison chaplain has expressed a sympathetic view, adverting to a prior violent relationship in her de facto marriage, and expressing the opinion that a course conducted by the Salvation Army in relation to the applicant has been:
highly successful in providing cognitive behavioural approaches to therapy and thus providing alternatives to substance abuse.
Ms Simpson’s educational progress in prison is extremely impressive. She has completed courses in employability skills, art, occupational health and safety, vocational educational and training, living skills and the senior correctional education officer at the Berrima campus (Mr Beszant) has said:
Kaylene has always expressed a keen interest in learning more about her indigenous culture and to further this she has been enrolled in the HSC subject “Aboriginal Studies”. This year she is doing the year 11 preliminary year through Karabara Distance Education Centre by correspondence. She has submitted 3 assignments and is currently 2 weeks ahead of schedule. It is her intention to complete year 11 in 2004 and commence year 12 in 2005.
Having regard to all of these matters I would:
(a) grant leave to appeal in each case;
(b) uphold the appeals;
(c)order that the sentences be adjusted so that the applicant, Mr Newman be sentenced to imprisonment for a period of 7 years with a non-parole period of 4 years and that the applicant Ms Simpson be sentenced to imprisonment of 4 years with a non-parole period of 2 years.

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LAST UPDATED: 20/04/2004

[2004] NSWCCA 102

19 April 2004