R v Read
[2010] NSWCCA 78
•3 May 2010
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Regina v Read [2010] NSWCCA 78
This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S):
2009/78358
HEARING DATE(S):
2 March 2010
JUDGMENT DATE:
3 May 2010
PARTIES:
The Crown - Appellant
Patrick John Read - Respondent
JUDGMENT OF:
Giles JA Hulme J Latham J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2009/78358
LOWER COURT JUDICIAL OFFICER:
Robison DCJ
LOWER COURT DATE OF DECISION:
20 November 2009
COUNSEL:
F Veltro - Applicant
I McClintock SC - Respondent
SOLICITORS:
S Kavanagh, Solicitor for Public Prosecutions - Applicant
CATCHWORDS:
CRIMINAL LAW - Crown appeal on sentence - dangerous driving occasioning grievous bodily harm - injury to two persons resulting from the same dangerous driving - whether imprisonment for concurrent non-parole periods of 12 months served by periodic detention manifestly inadequate - need for some accumulation where two persons harmed as result of one act of dangerous driving - complete concurrency does not recognise the total criminality - periodic detention inappropriate - need to adhere to the guideline judgment in R v Whyte,
LEGISLATION CITED:
CASES CITED:
Application of Attorney-General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305;
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321;
Markarian v The Queen (2005) 228 CLR 357;
Nguyen v R [2007] NSWCCA 14;
R v AA [2006] NSWCCA 55;
R v Baker [2000] NSWCCA 85;
R v Burnett (1996) 85 A Crim R 76;
R v Cahayadi [2007] NSWCCA 1;
R v Carr [2002] NSWCCA 434; (2002) 135 A Crim R 171;
R v Carruthers [2008] NSWCCA 59;
R v Hallocoglu (1992) 29 NSWLR 67;
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66;
R v Hersi [2010] NSWCCA 57;
R v Janceski [2005] NSWCCA 288;
R v Jurisic (1998) 45 NSWLR 209;
R v JW [2010] NSWCCA 39;
R v McVittie [2002] NSWCCA 344;
R v MD [2005] NSWCCA 342; (2005) 156 A Crim R 372;
R v Pangallo (CCA, 13 August 1991, unreported);
R v Price [2004] NSWCCA 186;
R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284;
R v Romanic [2000] NSWCCA 524;
R v Wall [2002] NSWCCA 42;
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252;
R v XX [2009] NSWCCA 115;
R v Zamagias [2002] NSWCCA 17;
TG v R [2010] NSWCCA 28.
TEXTS CITED:
DECISION:
(1) Appeal allowed. (2) Set aside the sentences of imprisonment to be served by way of periodic detention imposed by Robison DCJ. (3) Sentence the respondent: For the offence involving grievous bodily harm to Ms Minzevska, to imprisonment for a non-parole period of 14 months commencing on 3 May 2010 with a balance of term of 1 year; For the offence involving grievous bodily harm to Ms Lei, to imprisonment for a non-parole period of 11 months commencing on 3 November 2010 with a balance of term of 1 year; The respondent will be eligible for release to parole on 2 October 2011.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CA 2009/78358
DC 2009/78358GILES JA
RS HULME J
LATHAM JMonday 3 May 2010
REGINA v PATRICK READ
Judgment
GILES JA: The respondent pleaded guilty to two charges of dangerous driving occasioning grievous bodily harm, an offence under s 53A(3)(c) of the Crimes Act 1900. The offences were committed on 4 April 2009. The same dangerous driving resulted in injury to two persons, hence the two charges.
The offence carries a maximum penalty of 7 years imprisonment. The respondent was sentenced by Robison DCJ to imprisonment for concurrent non-parole periods of 12 months with balances of term of 12 months, to be served by way of periodic detention.
The Crown appeals against the sentences on the grounds -
“(1) His Honour erred by imposing completely concurrent sentences.
(2)His Honour erred in not giving sufficient weight to the aspects of general deterrence and the objective seriousness of the offence and in giving too much weight to the subjective features of the applicant [sic: respondent].
(3) The sentence pronounced was [sic] manifestly inadequate.”
Facts
The respondent was 20 years old and a university student. He drove to a fancy dress 19th birthday party at an address in Minnamorra Avenue, Earlwood. On the way he purchased a 700ml bottle of bourbon and a bottle of coca-cola. The respondent arrived at the party between 6pm and 7pm. Over the next three and a half hours he drank approximately three-quarters of the bottle of bourbon mixed with coca-cola. He had not eaten any food since lunchtime.
At about 10.40 pm the respondent got into his vehicle, with the birthday celebrant as his passenger. He drove along Minnamorra Avenue to a cul de sac about 200 metres from the party address, where he performed “donuts”: that is, accelerating harshly and steering to the right and completing revolutions of the vehicle.
The respondent then drove back along Minnamorra Avenue and stopped outside the party address. There were many people in the front yard of the party address, and on the nature strip and footpath and in the gutter outside it. The estimates varied between 50 and 100. Numerous cars were parked on both sides of the street.
The respondent performed a “burnout”: that is, accelerating harshly whilst braking so that the drive wheels were spinning. There was significant tyre shredding and large volumes of smoke. One of the wheels created a trench in the road surface, and the smoke completely surrounded the vehicle and the area so that the respondent could not see ahead of him.
The respondent then drove the vehicle forward, with the drive wheels still spinning under acceleration. The front passenger side of the vehicle collided with the driver’s side doors and quarter panel of a car parked directly outside the party address. The vehicle continued forward, under the acceleration but at moderate speed. The front of the vehicle collided heavily with the rear of another car parked outside the next door address.
The collision shunted the last-mentioned car forward about 10 metres. Two persons, Ms Natasha Minzevska (aged 19) and Ms Jessica Lei (age 20), were sitting in the gutter in front of the car. The shunted car ran over the legs and feet of both of them.
Ms Minzevska suffered compound fractures of the tibia and fibula in her right leg and severe bruises to the left leg. She underwent surgery, including the insertion of 8 screws and a plate. The wounds became infected, and the healing process was delayed. Ms Lei suffered fractures to the bones in her right ankle and foot and bruising to her left foot, together with scratches and grazes and bruising to her face. She also underwent surgery, with the insertion of 7 screws and a plate.
Immediately after the collision the respondent went into the party address and retrieved his belongings. He returned to his vehicle and saw the damage to it, and was made aware of the injured persons. He attempted to start the vehicle, but could not. He left the scene, and was later arrested by police some distance away.
The respondent was breath tested and returned a reading of 0.092. He was granted bail.
On the next day, 5 April 2009, the respondent reported to the police and participated in a recorded interview. He made admissions as to being impaired and intoxicated while driving, conducting donuts and the burnout, and causing the collisions. He told the police that he left the scene because people there were turning on him and he seriously feared for his safety. The judge appears to have accepted this, while commenting that he had a “lingering concern that he could have taken more steps in order to check on the welfare of the two victims”.
The Respondent’s Driving Record
Early in the remarks on sentence the judge said that the respondent had no criminal history “but he does have a significant number of speeding offences on his traffic record”, and that “for some time now he has thumbed his nose at the law when it comes to driving a motor vehicle at the speeds indicated in the material”. He later referred to the respondent having “a very poor traffic record indeed”, but observed that there were “no prior convictions at all” and that the traffic history did not reveal anything of the nature of “burnouts”. Later again he said that the respondent “has a poor driving record that must be taken into account”.
The respondent had obtained his P1 provisional licence on 26 February 2007. He had been fined for speeding on a date in May 2007, on 27 May 2007, on 30 May 2007, on 1 June 2007, on 3 June 2007, on a date in June 2007, on 4 June 2007 and on 6 June 2007 (the unstated dates are obscured in the materials before the Court). The offences were variously exceeding the speed limit by not more than 15 km per hour, by more than 15 km per hour but not more than 30 km per hour, and on one occasion by more than 30 km per hour but not more than 45 km per hour.
The respondent’s licence was suspended because of demerit points for 3 months from 16 October 2007 and for 6 months from 22 February 2008. He regained a P1 provisional licence on 23 August 2008, but on 3 October 2008 he exceeded the speed limit by more than 45 km per hour and the licence was suspended on the spot for a further 6 months. The suspension came to an end on 2 April 2009.
According to the respondent, his driving on 4 April 2009 was influenced by “the hype of me getting my licence back and drinking for the first time for a long time”. He said that he was showing off and trying to impress his friends.
Subjective Matters
The respondent was the eldest of four brothers and one step-brother. He had had no contact with his natural father, who had been a violent and drunken parent, for some years. He had a good relationship with his mother, step-father and brothers.
He left school at the age of 19. He did a TAFE course in security risk management, and completed a bridging course which allowed him entry to a BA degree course which he commenced in March 2009. He was studying to become a primary school teacher. At the time of sentencing he had successfully completed his first year.
He had worked at a variety of casual jobs, but at the time of the offence his only income was a youth allowance. He had sporting ability, and in particular had engaged in soccer at a high level. He was involved in coaching a soccer team at Bankstown Grammar School.
There was tendered on the respondent’s behalf a report of Mr Anthony Diment, consultant psychologist. Mr Diment said that the respondent “fits DSM-IV-TR criteria for a chronic depressive illness”, as to which he had -
“…formally assessed on reliable measures as above average on clinical anxiety and depression. While much of this current ‘distress’ is related to his impending sentence there is evidence that his depression in particular is longer-standing and is related to earlier physical/mental abuse at the hands of a violent father. While he had coped with this to a degree – he was a gifted young soccer player until he sustained a serious finger injury – his depression resurfaced when a girlfriend underwent an abortion and he stabbed himself.”
The last-mentioned incident was when the respondent was 18. He told Mr Diment that he felt he was “OK now”. Mr Diment observed that the respondent had received only brief psychiatric counselling at the time. Mr Diment was concerned that the depression should be assessed and monitored by appropriate medical personnel.
Mr Diment considered that the respondent had blighted his life “by a brief, alcohol-related outburst of inappropriate behaviour influenced by peers he was trying to ‘impress’ in an immature manner”, and that the behaviour given his achievements to that time and “his attempts to overcome a difficult early upbringing” were out of character despite the earlier driving offences.
The respondent had arranged for flowers and an apology note to be sent to Ms Minzevska and Ms Lei in hospital. He gave evidence at the sentencing hearing, in which he agreed that he “did a really stupid and foolish act” and that he was showing off and hooning. The judge appears to have accepted what he called “the veracity of his remorse expressed to the two victims”, and noted that Mr Diment recorded that the respondent would like them to know how sorry he was. The judge said at one point, “clearly there is genuine remorse”.
A number of references were tendered on the respondent’s behalf attesting to general good character. One referee observed that, although not “privy to the circumstances of the charges before the court”, he inferred from general comments that the respondent felt shame and remorse for what he did and believed that given another chance the respondent would not repeat his mistake.
I have referred to what the judge said about the traffic record. His Honour nonetheless expressly found “that [the respondent] is a person of good character”.
The Judge’s Remarks on Sentence
The remarks on sentence were discursive, and sometimes it is not easy to see the part played in the sentencing by the matters to which his Honour referred.
The judge allowed a 25% reduction in sentence for the utilitarian value of pleading at the first available opportunity. As I have indicated, he appears to have accepted that the respondent was remorseful.
The judge said that the character references were in his view “important matters of evidence” to which mere lip service should not be paid. He accepted that the respondent acted as he did as a result of the “atmosphere of ‘hype’ when he got his licence back”, saying that while that did not excuse what he did “it does help to explain the background leading up to these rather tragic events”. He referred to the report of Mr Diment, describing as significant what had been said about the respondent fitting the diagnostic criteria for a chronic depressive illness while observing that he was mindful that the respondent was deeply concerned about his own position.
The judge said that he noted, at other points that he had regard to, or took into account, or was mindful of, the guideline judgment in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 to which the Crown had referred and what was said in it. He set out two passages from the judgment, to the effect that a guideline judgment provided a “check, guide or indicator” and was not to be rigidly or mechanically applied, and said -
“One has to be very careful in straying too far from what is set forth in a guideline judgment, often it is a matter of fact and degree. Guideline judgments are certainly persuasive, they are important, they set a standard by way of a guideline but I repeat, the judicial discretion is still there. Sentencing judges when they have a discretion must exercise it judicially, not to be swayed by emotion on matters of that kind. I have said in the past and I will say it now, possibly simplistically, but it is important for sentencing judges to communicate remarks on sentences that offenders understand. The punishment must fit the crime and it must fit the offender, they are not mutually exclusive notions. Every case needs to be determined on its own circumstances.”
Referring to the Crown’s submission “that this is a matter of high moral culpability”, his Honour said that “[v]iews may vary on that” and -
“This was a young, immature, stupid ‘hoon’ if I could use that terminology. His activities were spurred on by his degree of ‘hype’, his excitement about getting his licence back, and he gave little or no thought to any of the consequences which followed from his offending behaviour. I have taken the view that when one considers the moral culpability it is certainly not at the highest level but it is high, it has to be considered in that context. He decided what he was doing, he showed off to the others.”
The judge observed that “[g]eneral deterrence looms large in this case”, but that he thought that it was most unlikely that the respondent “will ever conduct this kind of behaviour again”.
The dispositive part of the remarks on sentence appears to be -
“I have asked myself as to an appropriate sentence and that is precisely what a sentencing judge has to do and that is to fix an appropriate sentence mindful of the guideline judgment of Whyte and other authorities, mindful of the subjective circumstances and the objective seriousness of the offence. I need to consider the expectations of the community which was effectively also referred to in Whyte. There needs to be a transparency and consistency of the sentencing process.
I have come to the view that due to the objective seriousness of the offence a sentence of imprisonment is not only warranted but inevitable in this particular instance, particularly having regard to the events of that day, the objective seriousness of the offence, questions of general deterrence. I am mindful of what was said in Whyte and other authorities. I have come to the further view that each sentence of imprisonment should be concurrent.
I appreciate the view of the Crown about that, who has suggested at least some partial accumulation but I consider I have already identified in these remarks why I have come to the view that the sentence [sic] should be concurrent having regard to the proximity of the two victims, this all occurred during the course of one act. Their injuries were similar, not identical but similar, they each received surgery, and I do consider that this is a case which warrants concurrent sentences.
I have also turned my mind as to how those sentences should be served. The Crown has said they should be served on a full-time basis. Mr Stewart has submitted that the court should consider sentencing the offender on the basis of an order for periodic detention. Those submissions have weighed heavily upon me, indeed this entire sentencing task has weighed heavily upon me. I need to act responsibly in accordance with the principles of law and the other matters to which I have referred.
The pre-sentence report, which I have read in detail and by and large it confirms other matters which I have referred to in these remarks, asserts inter alia that he is eligible and has been assessed as suitable for periodic detention order but there are some concerns as to how he would cope having regard to his youth and the diagnosis of depression. I have taken that into account as well as the psychological report which is part of exhibit 1.
I consider that in this particular instance the appropriate sentence is indeed one which warrants an order for periodic detention and I do propose to sentence the offender on the basis of a periodic detention order. I do find when I have considered other matters that special circumstances have indeed been made out, they are as follows, firstly his age, secondly this will be the first time he has been in a custodial environment, thirdly there is the diagnosis of depression and I also consider that his prospects of rehabilitation would be enhanced upon his release after a shorter non-parole period having regard to the statutory relationship between that period and the balance of the term. For those reasons I find special circumstances.”
The judge then pronounced the sentences. The first identification of the non-parole periods and balances of term was when they were pronounced.
Ground 1: Concurrency of Sentences
For the present the adequacy of the individual sentences is assumed. It is not entirely clear what the judge meant in saying that he had already identified why he had come to the view that the sentences should be concurrent. As I read the reasons, his Honour had in mind what he then expressed as the proximity of the victims and “this all occurred during the course of one act”, and their injuries were similar although not identical.
The Crown submitted that the fact that the injuries were similar was largely irrelevant to concurrency, and that the concurrency failed to reflect that there were two victims of the same conduct of the respondent. Each of Ms Minzevska and Ms Lei suffered grievous bodily harm, it was said, and the sentence for one of the offences did not fully encompass the criminality in the other of the offences. It was said that on proper application of the totality principle, there should have been some accumulation.
In R v Janceski [2005] NSWCCA 288, Hunt AJA, with whom Spigelman CJ and Howie J agreed, said of a case where the one action by the offender causes a number of persons to be injured and separate charges are laid in relation to each victim -
“[22] In this second sub-category, it is easy for the sentencing judge to consider the sentencing process as being related to a single action which has created multiple victims, and therefore to fall into the error of imposing wholly concurrent sentences, each of them having been assessed on the basis that the existence of the multiple victims aggravated that sentence. Section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, which identifies the fact that an offence involved multiple victims as an aggravating factor, may (read in isolation) unfortunately lend credence to that approach. That is how the judge approached his task in the present case. Such an approach overlooks the fact that, in a case such as the present, there are two counts, each identifying one of the victims and each requiring a separate sentence. It is completely contrary to principle to aggravate each of those sentences on the basis that each offence resulted in multiple victims: Regina v Tadrosse [2005] NSWCCA 145 at [28]-[29].
[23] In a case falling within the second sub-category, separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. The extent to which there should be an overlap in the partial accumulation will depend on what is required to represent the totality of the criminality involved in the one act of the offender. This, it seems to me, follows naturally from Pearce at [45]-[48] – and cases such as Regina v Weldon (2002) 136 A Crim R 55 at [46]-[53] and Regina v Price [2004] NSWCCA 186 at [38], [49] – when applying the general principles relating to the aggregation of sentences to this particular sub-category.”
More generally, in the application of the totality principle it must be asked whether the sentence for one offence comprehends and reflects the criminality for the other offence. If it does not, the sentences should be at least partially cumulative, and that is so even if the two offences can be regarded as part of a single episode of criminality: R v Cahayadi [2007] NSWCCA 1 at [27]; Nguyen v R [2007] NSWCCA 14 at [12]; R v XX [2009] NSWCCA 115 at [52].
In R v Janceski there were two victims of the one occasion of dangerous driving. It was held that the sentences should be partially cumulative in order to acknowledge the harm occasioned to each of the victims. That is the present case also; each of Ms Minzevska and Ms Lei suffered serious injury, and there were separate offences of dangerous driving causing the separate injuries.
It was submitted on behalf of the respondent that the judge retained a discretion, and that making the sentences wholly concurrent was within his discretion. It may be accepted that there was a discretion, and one with the exercise of which this Court will not lightly interfere, see for example R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]; R v Carr [2002] NSWCCA 434; (2002) 135 A Crim R 171 at [32]. But as was said in R v Price [2004] NSWCCA 186 at [49] (Simpson and Howie JJ, RS Hulme J relevantly agreeing) -
“It will rarely be the case that sentences for multiple offences of dangerous driving causing death could be made wholly concurrent. Because, as was noted earlier, the criminality in the offence is not simply derived from the culpable act of driving without having regard to the consequences, the fact that more than one person is killed means that the criminality will not usually be sufficiently comprehended by a sentence that is appropriate for a single offence. In the present case, even assuming that a sentence of two years was appropriate for one offence, it could not, in my opinion, be an adequate reflection of the fact that the consequences of the respondent’s driving was the death of two persons. This is notwithstanding the statements in R v Hammoud (2000) 118 A Crim R 66 to the effect that a judge has a discretion as to whether to make sentences cumulative or concurrent and legal minds might differ as to what order was appropriate in a particular case.”
This is applicable also to the present case of significant injury suffered by the two victims. A proper basis for exercising the discretion as the judge did, notwithstanding that complete concurrency would not reflect the harm occasioned to each of Ms Minzevska and Ms Lei, must be seen. It was not enough that their injuries were suffered “during the course of one act”. Nor was it relevant that their injuries were similar.
The reasons the judge gave for concurrency were not a proper basis for it. He did not address the need to compound the criminalities from the separate grievous bodily harm. In my opinion, there was error in principle in failing to consider whether the complete concurrency properly reflected the total criminality, and in making the sentences concurrent.
Grounds 2 and 3: General Deterrence, Objective Seriousness, Subjective Features and Manifest Inadequacy
These grounds were argued together, and it is convenient to deal with them together.
The Crown’s submissions focused on R v Whyte. It was said, in summary, that the present case fell generally within the typical case identified in the guideline judgment; that the respondent’s moral culpability was high and together with other factors at least the suggested range for the typical case was applicable; and that nothing in the respondent’s subjective features warranted the significant departure from the range. It was said, as well, that there was double counting in that the subjective features of youth, depression and prospects of rehabilitation appeared to have been relied on in not imposing a full-time custodial sentence, and also in finding special circumstances so as to reduce the statutory ratio of the non-parole period to the head sentence.
R v Whyte identified a typical case of an offence of dangerous driving causing death or bodily harm contrary to s 52A of the Crimes Act. The case was one of a young offender of good character with no or limited prior convictions, where there was death or permanent injury to one person who was a stranger to the offender and no or limited injury to the offender or his or her intimates, and where there was genuine remorse and a plea of guilty of limited utilitarian value: at [204]. For such a case, a custodial sentence would usually be appropriate unless the offender had a low level of moral culpability, as in the case of momentary inattention or misjudgement: at [214]. Where the offender’s moral culpability was high, a full time custodial head sentence of less than 2 years in the case of grievous bodily harm would not generally be appropriate; where there was a lower level of moral culpability, a lower sentence would be appropriate: at [229]-[230].
The respondent’s case was close to the typical case, with variations warranting a higher sentence and a lower sentence but overall indicating a higher sentence. His early plea was of greater than limited utilitarian value; but on the other hand, the very many persons exposed to risk of injury contributed to the seriousness of the offending (see Application of the Attorney-General (No. 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 at [108]; TG v R [2010] NSWCCA 28 at [28]) and he had a very bad traffic record. The judge’s finding of high moral culpability was well justified: the respondent was intoxicated, was driving with complete irresponsibility, and was doing so only two days after a further suspension of his licence for significant speeding had ended.
The judge did remark that general deterrence loomed large, and one of his reasons for a sentence of imprisonment being warranted was “questions of general deterrence”. It is not easy to see a finding as to objective seriousness in the remarks on sentence, save in what was said about moral culpability and the objective seriousness warranting a sentence of imprisonment (albeit one which was then ordered to be served by periodic detention). It is not particularly clear how the judge took account of the respondent’s subjective circumstances, although he plainly gave weight to absence of a criminal history (as distinct from the driving record), to remorse, to contrition, to the character references and good character, to unlikelihood of repetition and to the diagnosis of a chronic depressive illness.
In my opinion, notwithstanding the respondent’s favourable subjective features, sentences to be served by periodic detention cannot be reconciled with the guidance provided by R v Whyte.
The judge was at pains to say that a guideline judgment leaves a judicial discretion. However, a judicial discretion is one to be exercised in a principled way, relevantly in accordance with the guidance of the guideline judgment. As was said by Wood CJ at CL in R v Romanic [2000] NSWCCA 524 at [16], Dunford and Carruthers JJ agreeing -
[16] While guideline judgments are not to be treated as absolute directions for sentencing Judges, the rationale for their delivery lies in the objective of ensuring consistency in sentencing, and in the opportunity which they provide for a considered analysis by the Court of Criminal Appeal of sentencing principle, in respect of offences where some uncertainty or unevenness in sentencing practice has emerged. They are, accordingly, to be regarded as persuasive, and as a considered expression by this Court as to the proper range of sentences, from which there should be no departure save in accordance with a reasonable and justifiable exercise of discretion – Griggs [2000] NSWCCA 33 at paragraphs 29-30, per Simpson J, Henry (1999) NSWCCA 111 at paragraph 29.
Nowhere did his Honour address the typical case in R v Whyte, or the guidance provided by that judgment, beyond the unhelpful references such as taking it into account or being mindful of it. It is apparent from the remarks on sentence, in my view, that there was a failure to engage with the proper exercise of the discretion.
Moreover, there is just no explanation of why, having said that the objective seriousness of the offence warranted a sentence of imprisonment, the judge decided that the sentence should be served by way of periodic detention. The pre-sentence report gave qualified approval to eligibility and suitability, but that does not mean a decision that there should be periodic detention. If the reason was to be found in Mr Diment’s report, that was not explained, and I do not think it was to be found.
Although the Crown did not take the point, arguably the judge further erred in that he did not first decide the appropriate term of imprisonment and then consider whether it should be served by an alternative to full-time detention: R v Jurisic (1998) 45 NSWLR 209 at 215, 249; R v Zamagias [2002] NSWCCA 17 at [24]-[30]; R v Carruthers [2008] NSWCCA 59 at [19]; TG v R at [25]. It is not necessary to take this further.
In my opinion, the judge failed to appreciate that a principled basis for the exercise of his discretion required a full time custodial sentence. When there is added that there were two offences and some accumulation was required, the error in sentencing is all the greater. There may have been double counting as to depression: it is hard to tell. It is not necessary to explore double counting.
The respondent acknowledged that “there was a degree of leniency inherent in the sentence of periodic detention in the circumstances of the case”. His submissions were to the effect that R v Whyte was a guide but left a discretion; that there was a significant subjective case and in particular (although the judge did not articulate how he took it into account) the diagnosis of depressive illness; and that the judge did take the guideline into account and the sentence “should be regarded as a proper exercise of the broad sentencing discretion allowed to judges at first instance” (emphasis in original).
For the reasons I have given, I do not accept these submissions. There was error in principle, and the sentences were manifestly inadequate.
Crown Appeals
The respondent submitted that appeals against sentence by the Crown should be rare, and only to correct error in principle or definite departure from the available range of sentence. He referred, amongst other cases, to Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; R v Baker [2000] NSWCCA 85; Markarian v The Queen (2005) 228 CLR 357; and R v MD [2005] NSWCCA 342; (2005) 156 A Crim R 372. In my opinion, this case falls well within the principles upon which a Crown appeal against sentence can be upheld.
The respondent further submitted that, if the sentence imposed by the judge had not been open to him, the Crown appeal should be dismissed in the exercise of this Court’s discretion. He submitted also that any sentence imposed on resentencing should be less than that which should have been imposed by the sentencing court.
The principles relevant to Crown appeals, of which these were part (see the summary in R v MD at [18] taken from R v Wall [2002] NSWCCA 42, but see also R v AA [2006] NSWCCA 55 at [4]-[20]) are now subject to s 68A of the Crimes (Appeal and Review) Act 2001. It provides that in a prosecution appeal against sentence a court must not dismiss the appeal, or impose a less severe sentence than the court would otherwise consider appropriate, “because of any element of double jeopardy involved in the respondent being sentenced again”.
Section 68A removes from consideration the distress and anxiety which a respondent suffers from being exposed to the risk of a more severe sentence. The Court’s discretion otherwise remains. But the sentence imposed on resentencing can not be reduced, on the ground of the distress and anxiety, from that which the Court believes is otherwise appropriate: R v JW [2010] NSWCCA 39 at [141], [205], [209].
Resentencing
The respondent submitted that he had served periodic detention from the commencing date of 4 December 2009 (the first day of detention was Saturday 5 December 2009), and that full time custody would curtail his university studies. He submitted that for those reasons the discretion should be exercised in his favour.
Interference with the respondent’s studies is a necessary consequence of imposition of a proper sentence, and is not in this case a reason to refrain from imposing a proper sentence. The periodic detention served is taken into account in resentencing. In my opinion, there is no occasion to dismiss the appeal in the exercise of the discretion.
Apart from the service of periodic detention, no evidence of changed circumstances was put before the Court by the respondent.
The appropriate sentence in the circumstances described in these reasons was in my view a full time custodial sentence for each offence of a non-parole period of 14 months and a further term of 1 year, with the sentences accumulated by 6 months. The finding of special circumstances was not challenged, and should remain. I do not think that lesser sentences would properly reflect the objective seriousness of the offences notwithstanding the respondent’s subjective circumstances.
The periodic detention of about 5 months served to date must be taken into account. It is not a case of adding up the days served: while periodic detention is less harsh than full-time custody (see for example R v Hallocoglu (1992) 29 NSWLR 67 at 73; R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 at [434]), it involves loss of liberty in a manner disruptive of ordinary life and is “a substantial punishment” (R v Burnett (1996) 85 A Crim R 76 at 96, but going on to compare “the quality of detention” with full-time custody). The periodic detention can be taken into account by an evaluative reduction of the sentence otherwise appropriate, as was done in cases such as R v Pangallo (CCA, 13 August 1991, unreported), R v Hallocoglu and R v McVittie [2002) NSWCCA 344.
In R v Hersi [2010] NSWCCA 57 leniency was afforded on resentencing because of delay, due to the pending appeals in R v JW and another case in which the effect of s 68A of the Crimes (Appeal and Review) Act was to be considered, in having the Crown appeals decided. The hearing of the Crown appeals had originally been listed for 30 October 2009, but had been adjourned. The back-dating of the sentence of one of the appellants gave him the benefit of the full period during which he had served periodic detention.
The appeal in the present case was heard on the listed date of 2 March 2010, without prior delay. Directions were given whereby further submissions could be made following delivery of judgment in R v JW and the other case. The judgments were delivered on 22 March and 1 April 2010. No untoward delay was occasioned in giving judgment in the present case. I do not think there is occasion for like leniency.
I take the periodic detention into account by reducing the first of the sentences to be served by 3 months.
Orders
I propose the orders -
(1) Appeal allowed.
(2)Set aside the sentences of imprisonment to be served by way of periodic detention imposed by Robison DCJ.
(3) Sentence the respondent –
For the offence involving grievous bodily harm to Ms Minzevska, to imprisonment for a non-parole period of 14 months commencing on 3 May 2010 with a balance of term of 1 year.
For the offence involving grievous bodily harm to Ms Lei, to imprisonment for a non-parole period of 11 months commencing on 3 November 2010 with a balance of term of 1 year.
The respondent will be eligible for release to parole on 2 October 2011.
Robison DCJ convicted and fined the respondent for driving with the mid-range prescribed concentration of alcohol, and made orders for disqualification from driving. These were not the subject of appeal. For avoidance of doubt, it should be said that they remain.
RS HULME J: I agree with Giles JA.
LATHAM J: I agree with Giles JA.
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AMENDMENTS:
05/05/2010 - (3) Non parole periods adjusted to give effect to the intention of the Court. - Paragraph(s) 68
05/05/2010 - Release date consequently amended - Paragraph(s) 68
06/05/2010 - wrong date - Paragraph(s) 68
20/12/2011 - Date eligible for parole amended to 2 October 2011. - Paragraph(s) Cover sheet and para 69
LAST UPDATED:
20 December 2011
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