R v Thawer

[2009] NSWCCA 158

New South Wales
Court of Criminal Appeal

CITATION:	R v Altaf THAWER [2009] NSWCCA 158
HEARING DATE(S):	27/05/2009
JUDGMENT DATE:	5 June 2009
JUDGMENT OF:	Giles JA at 1; Howie J at 2; Latham J at 57
DECISION:	1. The appeal is allowed and the sentence imposed in the District Court quashed. 2. The respondent is sentenced to a term of imprisonment made up of a non-parole period of 16 months and a balance of term of 30 months to date from 9 April 2009. The non-parole period is to expire on 8 August 2010 the date upon which the respondent is eligible to be released to parole. 3. The prison health authorities are to be made aware of the admission of the respondent into custody and be provided with the psychiatric report of Dr Westmore.
CATCHWORDS:	Criminal Law - Crown Appeal - Infliction of grievous bodily harm - suspended sentence - whether manifestly inadequate - relevance of standard non-parole period - failure to give reasons for suspending sentence.
LEGISLATION CITED:	Crimes Act 1900 - ss 4A, 33(1), 33(3), 35(2) Crimes (Sentencing Procedure) Act 1999 - ss 12, 12(3), 54C
CATEGORY:	Principal judgment
CASES CITED:	Smith v R [2009] NSWCCA 17 R v Borkowski [2009] NSWCCA 102 R v Wall [2002] NSWCCA 42 MLP v R [2006] NSWCCA 271; 164 A Crim R 93 R v Knight [2007] NSWCCA 283; 176 A Crim R 338 R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 R v Johnson [2003] NSWCCA 129 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Zamagias [2002] NSWCCA 17
PARTIES:	Regina v Altaf Thawer
FILE NUMBER(S):	CCA 2008/8065
COUNSEL:	N Noman - Crown A Haesler SC - Respondent
SOLICITORS:	S Kavanagh - Crown S O'Connor - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/8065
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ
LOWER COURT DATE OF DECISION:	09/04/2009

2008/00008065

GILES JA
HOWIE J
LATHAM J

FRIDAY 5 JUNE 2009

R v Altaf THAWER

Judgment

1 GILES JA: I agree with Howie J.

: The Crown has appealed against what it asserts to be the inadequacy of a sentence imposed upon the respondent by Ashford DCJ (the Judge) following the respondent pleading guilty to an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. This is an offence for which there has been prescribed a maximum penalty of imprisonment for 10 years and a standard non-parole period of 4 years. On 9 April 2009 the Judge sentenced the respondent to imprisonment for 16 months and suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999.

The facts

3 The offence took place on 15 December 2007. The statement of facts placed before the court can be briefly summarised, however, there was a dispute as to the circumstances in which the respondent came to stab the victim. The respondent and the victim were both residents of accommodation provided by the Wesley Mission. Initially they had a good relationship but it soured after about three months. In November 2006 the victim complained to a supervisor about a trail of ants he saw entering the respondent’s room. The respondent was given a notice to clean up his room.

4 On the day of the stabbing the victim had been drinking at a hotel before returning to the house. He saw some dirty items in the sink and threw them into the backyard. He then went to his room to change and remove a sling he was wearing on his left arm. About 15 minutes later he returned to the kitchen to make a cup of tea. His account was that, when at the fridge, he saw the respondent standing in the kitchen holding a butter knife in one hand and a fishing knife in the other. The respondent said to the victim, “Are you going to stand over me again?” The victim did not respond but stepped back. The respondent then stabbed the victim to the pubic region with the fishing knife and to the chest with the butter knife. The victim yelled out to another resident that he had been stabbed and asked him to get an ambulance and the police. The respondent went into his room. The other resident offered the victim assistance to stop the bleeding.

5 When a police officer arrived and saw the wounds to the victim, he called upon the respondent to come out of his room. He refused, telling the police officer to deal with the victim saying, “He’s the threat”. Eventually the respondent went with police. He had bloodstains on his shirt, his hands and arms.

6 The victim suffered three stab wounds, and from one of them some of his bowel was protruding. He underwent emergency surgery to repair the injuries to his internal organs. He spent 6 days in intensive care and 10 days in the general ward.

7 In an ERISP the respondent told police that he had stabbed the victim after an argument with him and that it was the culmination of the respondent’s frustration resulting from his relationship with the victim.

8 There were three matters that the Judge was called upon to determine: was the respondent acting in self-defence; was the respondent provoked into stabbing the victim; was there one or two knives used in the stabbing? In order for the resolution of these issues both the respondent and the victim gave evidence.

9 The Judge determined that there was only one knife used, a black handled kitchen knife, that the respondent had been provoked and that he acted in self-defence but his response in defending himself was excessive. The Crown does not dispute that these findings were open to the Judge.

10 There was a victim impact statement prepared by a general practitioner who treated the victim from 29 January 2008 after his release from hospital. This detailed the considerable pain and medical difficulties experienced by the victim throughout 2008 and into January 2009 as a result of the wounds inflicted upon him by the respondent. The devastating personal effect of the offence upon the respondent was amplified by a statement made and evidence given by him.

The respondent’s subjective case

11 The respondent was born in Tanzania in March 1974 and came to Australia in 1987 with his mother, who died in 2000. He had no criminal record. In a pre-sentence report the respondent was described as “socially isolated” with a lack of familial support or intimate relationships. He entered the workforce at the age of 29 and was engaged in various factory jobs. He had been unemployed since April 2008. The respondent was found to be unsuitable for either a community service order or a sentence to be served by way of periodic detention.

12 Under the heading “Attitude to the Offences” in the report was the following:

[The respondent] stated that he disagreed with the police facts and indicated that the facts portrayed him in a negative light. [The respondent] claimed that the police facts did not emphasise him being subjected to abusive language or being intimidated by the victim in the months leading up to the offence. [The respondent] justified his involvement in the offence and claimed that the victim deserve the injuries that he sustained. [The respondent] also reported that he would unlikely re-offend in this manner as he ‘did not like the smell of intestines’.

13 There were two psychiatric reports in evidence. Dr Allnutt was asked to assess the respondent’s fitness to plead in August 2008 and his mental state at the time of the offending. In a report to the respondent’s then legal representative he stated:

Your client has an unusual presentation. He describes a lifetime of disinterest in interpersonal relationships, a pursuit of solitary activities, a lack of any intimate or sexual relationships despite his age of 34. In addition to this, he describes experiencing mild referential ideas - believing that something happens between himself and the television when he watches it; paranoid ideas - that people might be talking to [about?] him or what they are saying might be influencing his future; ideas of misidentification - that other people from his past keep appearing in the present time and that people have similar appearances to people he has known in the past. The most significant of this being that his mother died in 2004 (sic) and he continues to believe that she reappears. None of these beliefs are held with complete conviction because he does maintain a degree of scepticism as to whether his judgment is correct. Your client presents as a highly intelligent individual and had a good schooling trajectory and until age 16 when his school performance deteriorated. He attempted university [courses] on numerous occasions and has been unable to complete them. His current occupational level, in my view, is below that which he could have intellectually achieved. These symptoms (referential and paranoid ideas) and his poor social, interpersonal and occupational performance need explanation. In general, I believe that your client falls onto the spectrum of schizophrenic spectrum of disorders. At one end of the spectrum are individuals who have schizoid or schizotypal or personality disorder(s), that is, that they manifest unusual symptoms of social isolation and unusual thoughts but not to the extent that a person would conclude a diagnosis of schizophrenia. On the other end an individual with schizophrenia with frank hallucinations and significantly poor social and occupational functioning. Where various clinicians would categorise an individual on the spectrum would vary from clinician to clinician. In my opinion, my tendency would be to place him on the end of the spectrum that suggests that he has a schizophrenic disorder. I believe most significantly for me the delusion in this identification related to his mother and the significantly poor social development.

14 Later in the report Dr Allnutt stated:

At the material time that the alleged offence occurred your client was probably experiencing ongoing symptoms of his schizophrenic type of disorder. These symptoms include beliefs of misidentification, persecutory beliefs and ideas of reference, which, in my view, would be consistent with a "disease of the mind". It is not my view, however, that his disease of the mind would have been to the extent that it would significantly impacted on his capacity to know the nature and quality of his actions. In addition to this, I do not believe at the material time that he would have been compromised in his capacity to understand the wrongfulness of his actions………… I am of the view that his schizophrenic illness would have made a contribution to the offending behaviour as I believe he had a defective reasoning capacity but not to the extent that he would have a mental illness defence available to him.

15 Dr Westmore made a psychiatric examination of the respondent in March 2009 and reported on his findings. He stated:

I think it is possible this man is suffering from a schizophrenic illness as suggested by Dr Allnutt, he certainly requires continuing psychiatric support and specific treatment. A trial of antipsychotic medication might assist him greatly. I also think he should be trialled with an antidepressant as I believe there is evidence of depression although he does not acknowledge that himself.

[The respondent] accepts that he has psychological problems but he indicated that it was his belief, and I agree, that those problems do not have any direct relationship to the matters now before the court.

The offending behaviour occurred as a result of interpersonal conflict between [the respondent] and another man in the accommodation whom [the respondent] felt was becoming controlling and overbearing. He indicated that man was critical and at times abusive. At one level I think he appreciates the wrongness of his actions but it is also clear he does not have a great deal of remorse as a result of his actions. He is relieved that the other man has recovered. This lack of empathy is probably a reflection of his psychiatric condition and possibly his personality as well but it does not in my view reflect antisocial traits or an antisocial personality disorder.

Predicting his risks of reoffending is difficult, paranoid patients are probably in general more likely to commit aggressive acts than non-paranoid people but in the absence of an extended history of violence then his risks are probably reduced.

I would be concerned about his mental state and his physical well-being in custody. I note his age, his obvious psychiatric problems and his personality difficulties. All of these issues will make him a potential victim within the prison setting. If the court decides to place him into custody I would be strongly recommending that prison health authorities be made aware of his admission so that appropriate measures can be taken to ensure he receives treatment and safekeeping.
The sentencing remarks

16 On 9 April 2009 at the conclusion of evidence given by both the victim and the respondent, the Judge gave a judgment in respect of the findings that she made. This included the following passage:

The offender said on many occasions he was acting in self-defence. He repeated on many occasions that he was acting in self-defence. It is my view that the events of the evening laid up (sic) a background of verbal and on one occasion physical violence by [the victim] to the offender led to a situation developing in the kitchen where I am satisfied [the victim] came towards the offender in a threatening manner with arms outstretched. And at that time I accept the offender was provoked to react in the manner he did believing it necessary to defend himself at that time, firstly, involving himself in a fist fight with some pushing and shoving. And then unfortunately by the use of the knife. In that latter action I am satisfied his response was excessive in all the circumstances of reckless (sic) to his perception of [the victim] attacking him. Whilst there is evidence [the victim] had something of incapacity of his left arm from prior injury and wore a sling on some occasions when out of the house, it is evident that he had taken the sling off when he came home, and there is no evidence he was unable to use his left arm in a viable manner.

Whilst older than the offender, he is clearly a larger man, and given the background and history of abuse and my acceptance as I do of the offender's evidence, it seems to me that the offender did perceive [the victim] to be a threat. Accordingly I accept the evidence as I have said of the offender in preference to that of [the victim].

17 During the course of her brief sentencing remarks, the Judge stated:

There is no doubt that an offence of this kind is a serious offence and it is one which the community rightly condemn(s). In respect of such matters, it is clear that factors of general and specific deterrence are warranted noting the use of the weapon and the fact that acts of violence such as this are not to be condoned in any manner.

18 In relation to the respondent’s mental state, the Judge stated:

It seems that he has sought some medical attention since that presentence report was prepared and has seen a psychologist on a number of occasions. The offender is of the opinion he does not require medication but obviously this is a matter which must be addressed by either his treating psychologist, and it also seems to me that he requires an assessment and treatment by a psychiatrist…………………….

My view of the offender, who gave evidence before me, was that he is something of a solitary personality who keeps very much to himself and it seems to me that he does have the need for some treatment and proper assessment. There is no other subjective material before me and I accept the views that are detailed in the psychiatric material.

19 As to the nature of the offence, her Honour stated:

In assessing the objective seriousness of the matter, this involves an intuitive evaluation of the objective seriousness of such an offence and looking at the aggravating and mitigating factors including an offender's state of mind. In attempting to determine the objective seriousness of the offence one factor to be taken into account is that of the extent of the injury which, as I have said, I believe to be a serious wounding. The nature and extent of the attack is such that I have accepted the offender was not the initiating aggressor, but that he responded inappropriately to the events of that evening. It was clearly not a premeditated attack, in my opinion, and assessing all factors, which has been referred to, it seems to me that I should assess the offences as being somewhere around the lower end of the mid range of objective seriousness.

20 In determining to impose the sentence that she did, the Judge stated:

Clearly, as I had said, his response was excessive, in the circumstances, to the initial aggression displayed to him. I am very mindful of the fact that he has no prior offences and that he has been able to comply with bail conditions. I think it unlikely that he will reoffend under the circumstances, noting his age, and noting again that prior lack of any offending behaviour. I am satisfied that he does not present a continuing danger to the community provided he complies with recommendations to undergo medical treatment. He has commenced some psychological assessment and that should continue. Therefore I am of the view that I should sentence him to imprisonment but I'm prepared to impose a suspended sentence on that basis.
The Crown submissions

21 The Crown contends that there were four specific errors made by the Judge that may account for a sentence, which in the Crown’s submission, is manifestly inadequate. They are:

1. Erred in failing to appropriately assess the objective seriousness of the offence;

2. Erred in failing to appropriately assess the weight to be given to those matters in section 21A Crimes (Sentencing Procedure) Act 1999 that either aggravated or mitigated the offence;

3. Error in attributing too much weight to the subjective circumstances of the respondent;

4. Erred in determining too great a discount given to the plea of guilty.

22 The Crown is critical of the Judge’s finding that the offence was “somewhere around the lower end of the midrange of objective seriousness”. It is said that it lacks sufficient clarity as a finding: see Smith v R [2009] NSWCCA 17. The Crown contends that the sentence imposed is, in any event, inconsistent with that finding.

23 The Crown contends that both the finding as to the objective seriousness of the offence and the sentence imposed fail to reflect the seriousness of the injuries inflicted upon the victim and the fact that a knife was used to stab the victim three times.

24 The Crown submits that the offence involved the intentional wounding of the victim which is more serious than had the wounding been inflicted recklessly; see s 4A of the Crimes Act, which states that “recklessness” can be established by proof of intention.

25 The Crown complains that the respondent was given too great a discount for his plea of guilty. The Judge discounted the sentence by 20 per cent for the plea. The Crown contends that the discount should have been no more than 15 per cent in light of the fact that the plea occurred on arraignment in the District Court: see R v Borkowski [2009] NSWCCA 102.

26 During the course of the hearing it became apparent that her Honour had failed to give specific reasons both for departing from the standard non-parole period and for suspending the sentence. Although the Crown had not relied upon either failure as a ground of appeal or as a reason to explain the alleged inadequacy of the sentence, the Crown sought leave to rely upon both matters. As counsel for the respondent had in his written submissions conceded the first failure, he did not oppose these two matters being relied upon by the Crown to support its attack upon the sentence. However, the respondent’s counsel was granted leave to file further submissions in response to these two allegations and did so after the Court had reserved its decision.

The respondent’s submissions

27 The respondent acknowledges that the sentence is a lenient one but argues that it “met all of the purposes of punishment”. He submits that there is no apparent error in the Judge’s reasons and that the sentence imposed was within her discretion.

28 It was submitted that, although the Judge did not set out her reasoning so far as the standard non-parole period was concerned, she was aware of the applicable standard non-parole period and listed matters that permitted her to depart from it, including that there was no pre-meditation, the respondent was not the aggressor, the Judge’s factual findings as to the circumstances surrounding the stabbing and the respondent’s subjective circumstances including that he had no prior record and his mental issues.

29 The respondent submitted that, if there were any error in her Honour’s finding as to the seriousness of the offence, the error was that the offence was low in the range of objective seriousness given the respondent’s mental state at the time of the stabbing.

30 It was submitted that the circumstances called for a lenient sentence. The case was said to be unusual in that the knife was not taken up to protect the respondent but he had the knife in his hand at the time of the provocation by the victim. The knife was used in a “sudden emergency”. It was submitted that his subjective circumstances were compelling.

31 It was argued that the discount for the plea was within her Honour’s discretion. In any event it was submitted that the Court would not intervene simply on the basis that the discount given was 20 per cent rather, than as the Crown submits, no more than 15 per cent.

32 The respondent relies upon what has been said both in this Court and the High Court about the exercise of the power to intervene at the behest of the Crown: see R v Wall [2002] NSWCCA 42. It was submitted that the sentence was not unreasonable nor was there any other reason to uphold the Crown appeal in order to give guidance to sentencing Courts.

Decision

33 In my opinion the sentence is unreasonable having regard to the objective seriousness of the offence committed by the respondent, given the very serious nature of the wounding and the fact that three separate wounds were inflicted upon the victim. The findings of fact made by the sentencing judge and the subjective circumstances of the offender could not, in my opinion, justify a sentence of 16 months, let alone an order suspending that sentence. Although I accept that there were clear reasons to depart in a significant way from the standard non-parole period, those reasons could not in a proper exercise of discretion result in a sentence that was so far below the standard non-parole period nor justify, what was for the purposes of the application of the standard non-parole period provisions, a non-custodial sentence.

34 I am more confident in coming to the conclusion that her Honour’s discretion must have miscarried because of the paucity of reasons given by the Judge explaining why the sentence chosen was appropriate in this case, particularly given her finding that the seriousness of the offence was “somewhere around the lower end of the mid range of objective seriousness”. The Judge does record the defence submission that there should be a suspended sentence and the argument that a period of custody “would cause extreme difficulty” because of the respondent’s mental condition. But that consideration could not itself warrant a sentence of such leniency that it could be suspended under s 12 of the Crimes (Sentencing Procedure) Act.

35 There is no consideration in the sentencing remarks of whether a suspended sentence could adequately reflect her Honour’s view that the offence was serious and one which “the community rightly condemn(s)”, or the need for the sentence to reflect both general and specific deterrence to which the Judge had referred.

36 Further, as the respondent concedes, the Judge failed to give adequate reasons for departing from the standard non-parole period. The Judge acknowledged the existence of the standard non-parole period, as she did the maximum penalty, at the commencement of the sentencing remarks. However, her Honour made no reference again to it during the course of those remarks, not even mentioning the fact that it remains as a “guidepost” notwithstanding that the respondent pleaded guilty. There is no mention in the Judge’s remarks of the authorities of this Court as to the way a Judge is to approach sentencing for an offence falling within Division 1A nor any attempt to follow the staged approach that has been described in decisions such as MLP v R [2006] NSWCCA 271; 164 A Crim R 93.

37 None of these failures would necessarily result in a finding that her Honour’s discretion had miscarried or justify this Court in intervening at the behest of the Crown. However, having regard to these deficiencies in the sentencing remarks and the sentence itself, it is difficult not to conclude that the existence of the standard non-parole period played no actual part in her Honour’s determination of the sentence she imposed.

38 This conclusion is strengthened having regard to s 54C of the Crimes (Sentencing Procedure) Act. That section provides that, before a court imposes a “non-custodial sentence”, and that term includes by definition a suspended sentence, the court give reasons for that decision. The section is as follows:

54C Court to give reasons if non-custodial sentence imposed

(1) If the court imposes a non-custodial sentence for an offence set out in the Table to this Division, the court must make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.
(2) The failure of a court to comply with this section does not invalidate the sentence.
(3) In this section:

“ non-custodial sentence ” means a sentence referred to in Division 3 of Part 2 or a fine.


A suspended sentence is referred to in Division 3 of Part 2 of the Act.

39 In my opinion a court does not comply with the provision simply by giving reasons for sentence. If that were the case, the section would be otiose because there is a common law requirement that a court give reasons for imposing a sentence at the time the sentence is pronounced. In my view the section requires that a court explain why it is that, despite the fact that the offence falls within the provisions dealing with the standard non-parole period, a sentence without a non-parole period is being imposed. Of course, as the section states, the failure to comply with it does not invalidate the sentence. But had her Honour endeavoured to comply with the section, it might have brought to her attention the inappropriateness of the course she was adopting having regard to the fact that the offence was one to which the standard non-parole provisions applied and to her finding that the offence was within the midrange of seriousness.

40 As McClellan CJ at CL noted in R v Knight [2007] NSWCCA 283; 176 A Crim R 338, one of the reasons for the apparent frequency of Crown appeals in more recent times is the failure of sentencing judges to give sufficient weight to the standard non-parole period, even in cases of pleas of guilty. His Honour stated at [4]:

Where a sentencing judge contemplates imposing a sentence which is significantly less than the standard non-parole period it is prudent for the judge to closely examine the relevant findings before finally determining whether the proposed sentence is appropriate. Of particular significance will be the finding in relation to the objective seriousness of the offending. That finding must be carefully considered and appropriately described……….. The sentence should appropriately reflect this finding.

41 In my opinion the Judge’s sentencing discretion miscarried because she failed in any real or meaningful sense to take into account a highly relevant fact, the existence of a standard non-parole period for the offence. This failure is obvious to my mind both by the sentence imposed having regard to the standard non-parole period and the absence in the remarks of her reasoning process in imposing a non-custodial sentence in light of her finding as to the objective seriousness of the offence. In my view the failure to comply with s 54C was not, at least in this case, a mere technical failure to comply with the provisions of the Act. It led her Honour into the erroneous exercise of her discretion.

42 I do not accept the criticism of the Crown that her Honour’s assessment of the objective seriousness of the offence was too vague or imprecise. There is in my view nothing wrong with a Judge indicating that, although the offence comes within the mid range of objective seriousness, it is “somewhere around the lower end” of that range. It would not have been erroneous for her Honour to determine that the offence was “near the lower end of mid range” or was “towards the lower end of mid range”. To the contrary, if a Judge is able to give some indication of where in a particular range of seriousness an offence falls, the Judge should give that indication even if it is merely an approximation. For my part I would have considered the offence more serious than that, given the number of wounds, the gravity of the injuries and their consequences for the victim, and having regard to the nature of the provocative conduct and the threat posed to the respondent. But there is no justification for this Court to redetermine her Honour’s assessment.

43 However I would reject the respondent’s submission that the offence was within the low range of objective seriousness. Although the conduct was provoked, the action of the respondent in stabbing the victim to the abdominal region three times was very considerably disproportionate to the provocative conduct. Although the respondent was acting in self-defence, the response was so unreasonable, that the offence remained a gravely serious one. The wounds were intentionally inflicted. The injuries suffered were initially life-threatening, were gravely serious and their impact upon the victim was very substantial. Of course the charge denied that the respondent intended to inflict such serious injuries but this was grievous bodily harm of substantial severity and it was, for that reason alone, a serious example of an offence under s 35(2). Although other factors are obviously relevant to an assessment of the seriousness of an offence of inflicting grievous bodily harm, to a very significant degree the seriousness of the offence will depend upon the degree of harm suffered by the victim particularly where the infliction of harm was intentional and even though the offender did not intend to inflict such serious injuries: R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94.

44 The second and third complaints raised by the Crown add little to the general complaint of manifest inadequacy. It is clear that her Honour took into account both the fact that a knife was used and that the offence was committed in the victim’s home. The weight to be given to those two aggravating factors depended upon the particular facts and was very much a matter for the sentencing Judge. As the respondent pointed out, the use of the knife was to a significant extent mitigated by the fact that he was, on the Judge’s finding, carrying the knife when the victim threatened him. However, much of that mitigation was lost by the fact that the knife was used three times to the victims abdominal region. The fact that the place where the offence was committed was also the home of the respondent was relevant in assessing the degree of aggravation arising from the injury being inflicted in the victim’s home. Where two people reside in the same premises, it does not seem to me to be a matter of particular aggravation that violence between them occurred in the place where they usually interacted with one another.

45 The respondent’s mental condition was a relevant factor but it had, as Dr Westmore concluded, little to do with the actual commission of the offence. It did not reduce the respondent’s culpability significantly. Nor was there any suggestion that it reduced the importance of general deterrence. Because of the ambivalence of the respondent to his mental problems and the need for treatment and because of his lack of remorse, there was a real issue about the need for specific deterrence notwithstanding his lack of prior offending. Although his mental condition may have made imprisonment more difficult for him, that was not a reason, in my opinion, to refrain from imposing a custodial sentence that was otherwise warranted.

46 The Judge’s discretion in relation to the discount for the plea of guilty miscarried. This is not just because her Honour awarded a discount of 20 per cent for a plea of guilty on arraignment. The decision in R v Borkowski [2009] NSWCCA 102 does not prevent a judge awarding such a discount in an appropriate case even where the plea is delayed until the offender appears in the District Court. In this case the amount of the discount was inappropriate because of the reason the Judge gave for awarding it. Her Honour said:

He has pleaded guilty at an early time when the alternative count was made available to him on indictment and on that basis it seems that I should afford him a twenty per cent reduction in the sentence I would otherwise have imposed for the utilitarian value of the plea.

47 This was not a plea of guilty at an early time. It did not occur until 18 months after the respondent’s arrest. The respondent had initially been charged with an offence of inflict grievous bodily harm with intent to inflict grievous bodily harm contrary to s 33(1). He had been committed for trial on that charge. He pleaded guilty to the offence under s 35(2) on 12 September 2008 when the Crown indicted him for that offence. But it was not a case of him pleading guilty “when the alternative count was made available to him”. The s 35(2) offence was a statutory alternative to the s 33(1) offence: see s 33(3). It was open to the respondent to indicate his preparedness to plead guilty to the less serious offence at any time. There was no need for the Crown to reindict him in order for him to plead guilty to the s 35(2) offence and certainly the respondent did not have to wait for that to occur.

48 There was no impediment to the respondent pleading guilty to the alternative count or indicating his willingness to do so at any time after he appeared in the Local Court. Had he done so he could have received a discount to reflect the real utilitarian value of the plea if, and when, the Crown accepted that plea in discharge of the more serious offence. Even had he gone to trial on the s 33(1) offence but been convicted of the s 35(2) offence, the Judge could have awarded him a discount based upon his preparedness to plead guilty to the less serious offence before the trial: see R v Johnson [2003] NSWCCA 129.

49 However, in this case the inappropriate discount did not result in a sentence that was manifestly inadequate. The Judge would have been justified in giving a discount of about 15 per cent. The difference between the discount given and what was appropriate did not result in the sentence being manifestly inadequate. The Crown acknowledged so much before this Court. The question may arise, however whether this Court should maintain that discount, if it is required to resentence the respondent.

50 In my opinion the sentence is so inadequate a reflection of the seriousness of the offence committed by the respondent that it is plainly wrong: Markarian v The Queen [2005] HCA 25; 228 CLR 357. Nothing in the mitigating circumstances of the commission of the offence or in the respondent’s subjective circumstances could justify a sentence of 16 months or an order suspending that sentence. This is notwithstanding that I acknowledge the significance of a sentence that is suspended as a real sentence and that in some cases it can be a sufficient denunciation of an offence and a means of general deterrence, see R v Zamagias [2002] NSWCCA 17. But the sentence imposed failed to fulfil those purposes of punishment in this particular case. Further the Judge’s discretion miscarried by a failure to have regard to the relevance of the standard non-parole period, and this resulted in a sentence that was manifestly inadequate.

51 The question then arises as to whether this Court should intervene. There has been material filed by the respondent relevant to that consideration. There is an affidavit by him dated 21 May 2009. It indicates that he is involved in a job-seeking course with Mission Australia that could culminate in him being interviewed by an employment consultant. He is no longer living in accommodation provided by the Wesley Mission. He is being treated by a psychologist for depression although this treatment is still in the initial stages.

52 It is always unfortunate for this Court to have to sentence a person to a term of imprisonment where that person has erroneously been offered the chance of avoiding full-time custody by the sentencing judge. Double jeopardy issues are most clearly raised in such a case because the respondent’s hopes and expectations have been frustrated by a Crown appeal. In some cases it may be sufficient for this Court simply to make the statement that the sentence is inadequate and to indicate the sentence that should have been imposed at first instance. This course will sometimes satisfy the purpose of a Crown appeal in ensuring consistency in sentencing: see R v Borkowski, above. But in other cases, the sentence imposed is so inadequate that the purposes of punishment in the particular case cannot be fulfilled without this Court intervening and imposing a term of custody upon the respondent notwithstanding double jeopardy considerations. In my opinion this is such a case.

53 The term of the sentence imposed by the Judge was a curious one. Her Honour must have started with a term of 20 months before reducing it by 20 per cent. I do not understand how her Honour fixed on that particular starting point as opposed to, for example, one of two years or 18 months. But however she derived that pre-discounted sentence it was in my opinion seriously inadequate to meet the objective seriousness of the offence on her Honour’s assessment of it. It has to be borne in mind that the sentence of 16 months was the equivalent of the total term of the sentence because her Honour could not set a non-parole period for a sentence that was to be suspended: see s 12(3) of the Crimes (Sentencing Procedure) Act which provides that generally Part 4 of the Act does not apply.

54 Her Honour would have been entitled to depart from the standard non-parole period by reason of the plea of guilty and the fact that the respondent was provoked and acted in self-defence. She could also have taken into account the difficulty for the respondent in custody. Further by finding special circumstances based upon the respondent’s need for psychological treatment the non-parole period could further be reduced from the statutory proportion. But taking into account those matters, the sentence should have been, after discount of 15 per cent, no less than 3 years 10 months with a non-parole period of about 2 years.

55 In my opinion the respondent should receive a total sentence of that length but with a non-parole period of 16 months to address double jeopardy. That non-parole period barely fulfils the requirements of punishment in this case and is a very lenient one. Further the imprisonment should be dated from the date of sentence being 9 April 2009 to take into account that he has been subject to a suspended sentence since that date.

56 I propose the following orders:

1. The appeal is allowed and the sentence imposed in the District Court quashed.

2. The respondent is sentenced to a term of imprisonment made up of a non-parole period of 16 months and a balance of term of 30 months to date from 9 April 2009. The non-parole period is to expire on 8 August 2010 the date upon which the respondent is eligible to be released to parole.

3. The prison health authorities are to be made aware of the admission of the respondent into custody and be provided with the psychiatric report of Dr Westmore.

I agree with Howie J

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