R v Walter & Thompson - [2004] NSWCCA 304

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Walter & Thompson [2004] NSWCCA 304

FILE NUMBER(S):
2004/1915 CCAP (60168/04)
2004/1916 CCAP (60167/04)

HEARING DATE(S): 27/08/04

JUDGMENT DATE: 03/09/2004

PARTIES:
Regina (Appl)
David John Walter (Resp)
Michael Allan Matthew Thompson (Resp)

JUDGMENT OF: Grove J Sully J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0348

LOWER COURT JUDICIAL OFFICER: Mahoney ADCJ

COUNSEL:
P Ingram (Crown/Appl)
R Hulme SC (Resp - Walter)
R J Button (Resp - Thompson)

SOLICITORS:
S Kavanagh (Crown/Appl)
SRALCS (Resp - Walter)
S E O'Connor (Resp - Thompson)

CATCHWORDS:
CRIMINAL PRACTICE & PROCEDURE
Crown appeals
sentence for robbery in circumstances of aggravation
whether manifestly inadequate
discretion not to intervene
delay in sentencing and on appeal.

LEGISLATION CITED:
Crimes Act 1900

DECISION:
D J WALTER
(1) Crown appeal allowed
(2) Sentence imposed in the District Court quashed
(3) In lieu thereof the respondent sentenced to imprisonment for 4 years to commence on 4 March 2004. The Court specified a non parole period of 12 months commencing on 4 March 2004 and expiring on 3 March 2005
(4) The first date of eligibility for parole was specified as 3 March 2005
M A M THOMPSON
(1) Crown appeal allowed
(2) Sentence imposed in the District Court quashed
(3) In lieu thereof the respondent sentenced to imprisonment for 3 years to date from 13 March 2004. The Court specified a non parole period of 9 months commencing on 13 March 2004 and expiring on 12 December 2004
(4) The respondent to be released to parole on that date
(5) The Court noted that in setting the non parole period, it was conscious that during the span of time specified the respondent, Mr Thompson, has served some periods of periodic detention and has been at liberty during other periods
(6) The respondent, Mr Thompson, should surrender to custody forthwith.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1915 CCAP (60168/04)
2004/1916 CCAP (60167/04)
GROVE J
SULLY J
KIRBY J
Friday 3 September 2004

REGINA v David John WALTER
REGINA v Michael Allan Matthew THOMPSON

Judgment

THE COURT: These are appeals against sentence by the Crown. David John Walter and Michael Allan Matthew Thompson were both indicted for robbery in circumstances of aggravation (s95(1) Crimes Act 1900). The circumstance of aggravation was that they maliciously inflicted actual bodily harm upon a person, being the person whom they robbed (s95(2)(c)). They each pleaded guilty. On 4 March 2004, they were sentenced by Mahoney ADCJ as follows:

David John Walter: Imprisonment for 5 years commencing on 4.3.04 with a non parole period of 6 months from 4.3.04 to 3.9.04.
Michael Allan Matthew Thompson: Imprisonment for 3 years commencing on 13.3.04 to be served by way of periodic detention with a non parole period of 4 months from 13.3.04 to 12.7.04.

The Crown asserted that in each case the sentence was manifestly inadequate. On 27 August 2004, having heard argument, the Court allowed each appeal and resentenced the offenders.
We now provide reasons for making these orders.
The incident.
On Friday 8 November 2002 the victim, a man aged 41 years, determined that he would go to a nightclub in Cronulla. Shortly after midnight he was walking along a lane that led to the nightclub. A man (who from the description, was plainly Mr Walter) came up behind him. He then stood in front of him and said:
"Give me your jeans."
The victim was, indeed, wearing jeans. Unsurprisingly, he dismissed the request as a joke. He was a man about 5' 7" tall. The person who made the demand (Mr Walter) was over 6' tall and considerably heavier. The victim endeavoured to proceed on his way. Mr Walter then followed, dancing around him like a boxer. As this was happening, the victim became aware of a second man, smaller than the first, but plainly associated with him (Mr Thompson). The larger man (Mr Walter) repeated his demand for the jeans. Having again been ignored, he then punched the victim in the eye and the face.
The victim attempted to defend himself. He covered his face. He tried to run. Both males stood in front of him. The victim grabbed the jumper of the larger man and pulled him to the ground. He tried to hold his assailant, who continued to strike him. The victim then lost consciousness. He had no recollection of the events thereafter until treated by ambulance officers, obviously some time later.
A number of passers-by witnessed the attack. One provided a description to the police which included these words:
"I saw this guy holding the crouched guy from behind. I saw this guy kicking the crouched (man) in the back area and lower. I saw him kick him about six or seven times at least just then. The crouched guy was covering his face and head and basically just trying to block the blows."
The larger of the two men, by inference Mr Walter, was then seen to step forward. The same witness continued his account with these words:
"He was obviously out cold and was not moving. Whilst he was crouched over the guy on the ground the big guy I saw him go for the victim's back trouser pocket. This guy said a couple of times to the shorter guy, 'Keep kicking him Mickey'."
The reference to "Mickey" was a reference to Michael Thompson. Mr Thompson, according to this witness, responded to this encouragement by kicking the victim a number of times.
The victim's jeans were then removed, as were his shoes. His mobile phone, his money (approximately $35), his house keys, his baseball cap and other incidentals were taken. He was left unconscious by the side of the road.
Messrs Walter and Thompson then walked towards Cronulla station, where they were seen by a security guard about ten minutes after the attack. The guard observed the larger man (inferentially Mr Walter) to be carrying jeans and the smaller man (Mr Thompson) a pair of shoes. The police were notified.
Within a matter of minutes the police were able to locate Messrs Walter and Thompson. As the police approached, one was seen to throw away the shoes. Mr Thompson was wearing the jeans. The police observed that the grey jumper worn by Mr Walter was torn. It also had blood stains on the front and back. Both were searched. The property of the victim was found in their possession. When asked about each item, they provided a false explanation. They were arrested and later charged.
The victim, meanwhile, was conveyed to the Sutherland Hospital. The report from the hospital described his injuries in these terms:
"He sustained abrasions to the face and a large infra-orbital haematoma. CT head showed no intra-cerebral injury but a right .... maxillary fracture. They were not involving the orbit so he was discharged with head injury advice."
Fortunately, the victim made a recovery from those injuries. There was no suggestion of permanent disability.
The police investigation provided insight into the bizarre demand by Mr Walter for the victim's jeans. Mr Thompson had recently separated from his wife. He was living with his sister and Mr Walter. According to an interview conducted by the police within hours of the offence, he and Mr Walter went to a hotel in Gymea on the Friday evening. Mr Thompson said he had "a couple of schooners" and three or four "double bourbons". When he left the hotel he rated the degree to which he was intoxicated to be eight or nine on a scale of ten. Mr Walter, on his reckoning, was perhaps "seven or eight" (on a scale of ten).
They then went by taxi to Cronulla and made their way to the same nightclub which had been the destination of the victim. However, they were refused entry. The "bouncer" said that Mr Thompson's tracksuit pants were unacceptable. Mr Thompson provided the police with the following account of what then occurred:
"Q190. OK. Now, and after you left where did you go?
A. To ask this dude if he wanted to swap pants. He said, 'No'. And I left it at that."
He was asked by the police about the clothing he was carrying at the time of his arrest. He gave a false explanation. He said that he obtained the clothing from a Salvation Army clothing bin near the railway station. He had thrown the shoes away because he had no need of them.
The police located the "bouncer" who had refused them entry to the club. He confirmed that he had indeed denied them entry because no tracksuit pants were allowed in the club. The witness added:
"9. Both guys had been drinking but I wouldn't say they were legless. The guy with the track pants was more affected by alcohol than the dark guy.
10. When I saw them coming down the street, I decided that I was not going to let them in no matter what they were wearing. They didn't look like our normal clientele."
The police attempted to interview Mr Walter. However, he declined to be interviewed.
Remarks of the sentencing Judge.
Having described the incident, his Honour said this: (ROS 4)
"If the courts were not to deal with situations such as that in a stern fashion then the city would be just one whole lot of anarchy and law abiding citizens would not be able to go out of their homes after dark.
I don't propose to say any more about the facts of the incident. I have said enough to indicate that the crime that these two offenders committed was a very serious crime indeed, and looked at from a point of view of objective seriousness, it would rate very highly on the scale of seriousness."
His Honour indicated that there was no "parity" between Mr Thompson and Mr Walter. The criminality exhibited by Mr Walter was worse in a number of respects. First, Mr Walter was the "major aggressor". Mr Walter had "waylaid" the victim (ROS 7) and, according to eye witnesses, had inflicted most of the blows. Secondly, Mr Walter had exhorted "Mickey" (Mr Thompson) to join in ("keep kicking him Mickey"). Thirdly, Mr Walter, again according to eye witnesses, had removed the property from the victim once he had been disabled. Fourthly, Mr Walter was significantly older than his companion. He was 32 years old whereas Mr Thompson was a little over 23 years.
Having described the incident, his Honour dealt with the subjective cases of Mr Thompson and Mr Walter. We will briefly describe the material placed before his Honour and then refer to the findings in respect of each offender.
The subjective case of Mr Thompson.
Mr Thompson was born on 28 April 1979. He was brought up in Newcastle. He is the third child in a family of four children. He told a psychologist, W John Taylor, that his parents got on well and "there were no problems in the family during his formative years". His father was employed.
However, Mr Thompson had difficulties at school. He was always in the slow learning classes. He left school at the age of 16, having completed Year 8. For a time he worked as a labourer, assisting in landscaping. He then formed a relationship with a woman. They left Newcastle to live with her parents. They remained together for six years and had two children. He obtained employment as a farm hand on a poultry farm nearby. However, in March 2002, he abandoned that employment once he broke up with his partner.
Mr Thompson told the Probation and Parole Service that, following the breakdown of his relationship, he became depressed. He missed his children. He began drinking heavily. He was drunk at the time of the offence. He recognised that that was no excuse and that what he did was wrong.
Mr Thompson had a criminal record, although not for crimes of violence. As a child, he had been placed on a good behaviour bond in 1995 for stealing and maliciously destroying property. A further bond was imposed as a result of a bag snatching incident in 1997. On both occasions he was apparently in company.
W John Taylor, psychologist, formed the view, having carried out extensive testing, that Mr Thompson had "limited intellectual ability and a lack of introspection". Indeed, Mr Taylor classified him as "borderline intellectually handicapped". He was not, however, suffering from any emotional disorders.
Nonetheless, Mr Thompson was highly regarded by those who knew him. A number of references were provided. His mother gave evidence. She described his emotional difficulties after the break up of his relationship, and the deprivation of contact with his children. Ordinarily he was not a person given to violence.
There were a number of developments after the offence which may be regarded as positive, in terms of Mr Thompson's rehabilitation. First, Mr Thompson was deeply remorseful when speaking to the Probation and Parole Service. Consistent with that remorse, he pleaded guilty in the Local Court at the first available opportunity. Secondly, he sought assistance with respect to alcohol and drugs from the Tharawall Aboriginal Corporation. He was counselled a number of times. Arrangements were made for further counselling in the future. Thirdly, Mr Thompson appeared before Mahoney ADCJ in June 2003, and again in December 2003. His Honour thought it was desirable that he should be sentenced at the same time as Mr Walter. The matter was adjourned. Mr Thompson was ultimately sentenced on 4 March 2004, as was Mr Walter. When standing the matter over in June 2003, Mahoney ADCJ encouraged Mr Thompson to find a job. Mr Thompson did so. He approached his former employer, who took him back. He thereafter worked five or six days a week, taking the train to Campbelltown at the weekend to see his children. At the same time he reduced his alcohol consumption. His employer provided the following character reference:
"During this time I found him to be a considerate, honest and conscientious worker. Michael undertook any task asked of him with considerable enthusiasm. He exhibited diligence ad a self-motivated attitude towards his working environment, hence he was able to be left to work unsupervised on any given task.
I have no hesitation in recommending Michael Thompson to any potential employer."
His Honour's findings on Mr Thompson.
His Honour made a number of observations which were common to both offenders. Both were Aboriginal. His Honour said this: (ROS 6)
"Both of them, in my view, are entitled to as much positive advantage as can be gleaned or extracted on their respective behalves from the well known decision of Wood CJ at CL in Fernando's case some years ago. The Crown has not conceded that Thompson is entitled to that concession but I take the view in the light of the evidence in the case that he is so entitled."
Both offenders were genuinely remorseful. Both had obtained employment since the offence. His Honour said this: (ROS 10/11)
".... this rehabilitation aspect is well in hand as far as Thompson is concerned, and I think also Walter is well along the way to being rehabilitated from the state of mind and behaviour in which he was on the night of this particular offence.
I have been most impressed by the fact that both Thompson and Walter, during the period of their respective remands, have grasped the opportunity that that remand, particularly the long period of remand, has given them to show that they have each gained employment and kept it."
His Honour said that he was especially impressed by Mr Thompson, in respect of whom he said this: (ROS 11/12)
"I suppose there would be many young men in his situation who would have taken the dole and just stayed there until the Court case was finished. Following on an indication that I gave him some months ago that it would be well to his advantage if he were to get himself a job, he has left home, having contacted his former employer down at Bargo; he has left the comforts of his home and now living in a caravan park at Bargo so he can pursue employment at his old place of employment."
This was, in his Honour's judgment, "an excellent demonstration of the fact that he is well on the way to rehabilitation" (ROS 12).
Neither offender had previously served a custodial sentence. Both plainly had a problem with alcohol. In each case, his Honour made a finding of special circumstances.
Mr Thompson, however, was at a disadvantage compared to Mr Walter. He was intellectually less able. He was also "less sophisticated" and susceptible to being led astray by Mr Walter, the older man. Unlike Mr Walter, he had no qualifications.
Reflecting these differences, and their different roles in the commission of the offence, his Honour imposed a significantly shorter term upon Mr Thompson (3 years cf 5 years), with a shorter non parole period (4 months cf 6 months). In the case of Mr Thompson, but not Mr Walter, he ordered that the sentence should be served by way of periodic detention.
The subjective case of Mr Walter.
Mr Walter was born on 27 March 1970. His mother was Aboriginal. He does not know the identity of his father. He was adopted into a caucasian family at the age of three months. There were three other children, including one other adopted child. He was brought up in Coffs Harbour. His step-mother abused him physically and emotionally as a child. He described the abuse in his evidence on sentence, as did his former defacto wife, Ms Sally Bird. Ms Bird's evidence was as follows: (T14)
"Q.         What did he tell you about that?
A.           That numerous times his step mother or adopted mother used to assault him physically. He had, she used to do things like tie him to the bed and beat him with a curtain rod and make him strip naked in front of his friends while beating him, belittle him, call him racist names, to the point he didn't want our children to ever have contact with her because he worried she may do the same thing to them.
Q.           You were referring to his aboriginality?
A.           Yep.
Q.           What kind?
A.           Little black bastard."
The abuse ceased by the time he was about twelve, when he was physically able to fight back. He got on well with the remaining members of his family. However, he now has nothing to do with them.
Mr Walter attempted to make contact with his natural mother. He communicated with her through an agency. She said, however, that she had no wish to see him. He refused to accept that response. He independently endeavoured to locate her through the electoral roll. However, she reaffirmed her previous attitude.
Mr Walter also gave the following evidence: (T20)
"Q. In terms of your contact with the aboriginal community growing up in Coffs Harbour, what was that like?
A. I didn't really have anything to do with the aboriginal community there. They didn't really accept me because I was pretty much brought up in a white family, so I wasn't really accepted."
However, Mr Walter formed a relationship with a woman, Ms Sally Bird. They lived together for almost thirteen years, separating in about November 2002. They had two children. Ms Bird described Mr Walter as a good father. She still clearly held him in high regard. She gave evidence on his behalf on sentence. He is a qualified cabinet maker. He has held various jobs. He was a promising footballer who had been selected to tour New Zealand. However, he suffered a serious neck injury at the age of 24 and was forced to abandon his career. According to Ms Bird, he was devastated. He began to drink heavily and smoke cannabis. After the break up, he again resorted to alcohol.
Ms Bird saw Mr Walter after the offence. She said that he was disgusted with himself for having "gone over the edge". He suffered from depression. On 27 January 2003 (that is, a matter of months after the incident) he was admitted to the St George Hospital suffering from depression. He was thereafter transferred to the Manly Hospital where he remained for some time. The hospital notes include the following entry:
"Mr Walter is tearful, depressed, uncommunicative about suicidal plans and is preoccupied by feelings of self-blame, guilt and regret."

The Probation and Parole Service, in a recent report (28 May 2004) included the following statement made by Ms Bird:
"Mr Walter's partner stated that the inmate's problems tend to have their origin in his abuse of alcohol, and also his apparent inability to cope with negative emotions and stressful situations. She appears to be hopeful that the inmate will address his difficulties and is able to become a constructive member of the community, as she believes that he is intelligent, good-natured and hard working."
Mr Walter had a criminal record. It included offences of violence. He was convicted in December 1994 of assault occasioning actual bodily harm. He was fined $170. In 1998 he was convicted of driving whilst under the influence (mid range PCA). Again he was fined. He was also disqualified from driving. The following year he was convicted of driving whilst disqualified. On appeal, a sentence of periodic detention was replaced by a two year bond. The same year (1999), Mr Walter was again convicted of assault occasioning actual bodily harm. He was ordered to perform 75 hours of community service.
The findings in respect of Mr Walter.
His Honour, for the reasons stated, regarded Mr Walter as the more culpable offender. He had a much higher level of "sophistication and social awareness" (ROS 8). His Honour said this: (ROS 13/14)
"Walter is also greatly assisted by the way in which his former defacto wife has been prepared to look out for him, her earlier ... having him hospitalised to deal with the question of his emotional disturbance and more recently to continue her concern for him and to come along to court and give evidence for him. She is to be complimented for being able to put whatever other feelings she might have towards him to one side and to come along and be of assistance to him in the way she has."
His Honour determined that, special circumstances having been found, "the non parole period in the case of Mr Walter should be significantly less than the statutory ratio" (ROS 13). He recommended that, whilst supervised by the Parole Service, he should receive counselling in respect of anger management and alcohol.
Was the sentence inadequate?
The Crown pointed to a number of remarks by the sentencing Judge which, whilst not misstating any sentencing principle, suggested that he had given rather more weight to certain subjective features than was warranted. In the result his Honour had plainly overvalued such features, according to the Crown, and arrived at a sentence in respect of each offender which was inadequate.
First, both offenders were Aboriginal. His Honour therefore believed that he should approach each matter in a manner consistent with the principles stated by Wood J in Fernando (1992) 76 A Crim R 58. The circumstances of each offender, according to the Crown, made the application of those principles doubtful, especially in the case of Mr Thompson. Even assuming their application, the issue had been overvalued by the sentencing Judge, given the outcome.
Secondly, the "psychological makeup of the offenders", and the fact that they were at a disadvantage in the community, was a matter to be taken into account when judging their moral culpability. However, whatever weight was given to that aspect, it would appear from the outcome that it must have been given greater weight than was warranted.
Thirdly, whilst unquestionably both offenders were affected by alcohol, as the bizarre nature of their demand upon the victim makes clear, it is also clear that they knew what they were doing. Having done their work, they escaped. Having been apprehended, they were able to invent a story to explained matters which would otherwise associate them with the crime. Whilst his Honour acknowledged that intoxication may be an explanation for their crime, and was not an excuse, the sentence, by its moderation, effectively excused what was a very serious crime.
In the case of Mr Walter, the Crown said that, whilst the term of 5 years may not have been manifestly inadequate, the non parole period of 6 months plainly was. It did not reflect the objective seriousness of the offence, even giving full weight to the subjective circumstances of Mr Walter.
In respect of Mr Thompson, the Crown asserted that error had infected each aspect of the sentence. In terms of their criminality, there was no "relevant distinction" to be drawn between the two offenders. Accordingly, the 3 year term was manifestly inadequate, the order that it be served by way of periodic detention was unduly lenient, and the non parole period of 4 months was likewise inadequate.
Counsel for Mr Walter responded with a number of arguments. First, in the submissions to the sentencing Judge, the Crown conceded the application of the Fernando principles. Secondly, there were, in the case of Mr Walter, mental health issues which were causally related to the commission of the crime. They operated to reduce his moral culpability, such that it could not be said that the sentence was manifestly inadequate. Thirdly, counsel joined with the Crown in submitting that no relevant distinction should be made between the criminality of Mr Walter and that of Mr Thompson. Finally, the Court was reminded of the important discretion on Crown appeals and the relevance of that discretion, given the significant delay in sentencing and prosecuting this appeal.
Counsel for Mr Thompson acknowledged that the sentence which had been imposed was lenient. He submitted, nonetheless, that it was not manifestly inadequate. Even were the Court to find error, it should not, as a matter of discretion, intervene. Counsel drew attention to certain developments since Mr Thompson had been sentenced. Mr Thompson was ordered to attend for periodic detention on 12 March 2004. Between March and the end of May 2004, however, he was absent without leave on three occasions, and absent with leave on one occasion. Mr Thompson gave as his reason for not attending that he was depressed. His counsel pointed to the coincidence in time between the service of the Notice of Appeal (26 April 2003) and three of the failures to attend. In June 2004 the Parole Board revoked the order for periodic detention. Mr Thompson would be obliged to serve thirteen weeks full time imprisonment. On 9 June 2004 a warrant was issued for his arrest.
The warrant, however, was not executed. Mr Thompson attended the hearing of the appeal and sat in the back of the court.
The inadequacy of each sentence.
It was open to his Honour, and for the reasons he gave, to regard the criminality of Mr Thompson as significantly less than that of Mr Walter (supra para 21). Although each offender was charged with Robbery in circumstances of aggravation (s95(1) Crimes Act), some guidance was to be found in the guideline judgement in respect of the kindred offence of Armed Robbery (s97(1) Crimes Act). Both offences, it will be noticed, carried a maximum penalty of 20 years imprisonment. The guideline in respect to s97(1) in R v Henry (1999) 46 NSWLR 346 was expressed in these terms by the Chief Justice: (at 388)
"165 In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court."
Two matters suggested error. The first concerned the application of the principles in Fernando to the circumstances of each offender. Each offender was Aboriginal. Each was affected by alcohol at the time of the offence. The disinhibiting influence of alcohol was unquestionably important in the commission of the offence. However, these matters do not bring into operation the Fernando principles. Wood J, when stating those principles, said this:
"(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.   ...
(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.   ... "
(emphasis added)
Mr Thompson did not come from a dysfunctional family. There was no history of deprived socio-economic circumstances or of alcohol abuse. He, unfortunately, in common with other members of the community, had resorted to alcohol as a comfort from his troubles. The Fernando principle (E) had no application to him (cf Howie J in R v Newman & Simpson [2004] NSWCCA 102 at paras 57 to 65).
The circumstances of Mr Walter were less clear-cut. The Crown, both before the sentencing Judge and this Court, acknowledged that the principles had some relevance.
The second error concerned the duration of the non parole periods in respect of each offender, 6 months in the case of Mr Walter and 4 months in respect of Mr Thompson, Mr Thompson already having the benefit of an order of periodic detention (which itself involved leniency). Neither adequately reflected the criminality of each offender. In fixing a minimum term, the sentencing Judge was obliged to take account of the same considerations that ought to be in contemplation when setting the head sentence, including deterrence (Bugmy v The Queen (1990) 169 CLR 525, per Mason CJ and McHugh J at 531). In Power v The Queen (1974) 131 CLR 623, Barwick CJ, Menzies, Stephen and Mason JJ made the following comment, concerning the components of a sentence: (at 629)
"... to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."
(emphasis added)
Having found special circumstances, the task which his Honour was required to perform was to determine the minimum term which justice required each offender should serve, having regard to the circumstances of the offence. This Court (Carruthers, Finlay and Badgery-Parker JJ) described what was required in R v Morrissey (CCA, unreported, 15.7.94) in these terms: (p 7)
" ... the decision to vary the statutory proportion requires consideration not only of the desirability of increasing the additional term but also the appropriateness of reducing the minimum term which must nevertheless remain such as appropriately reflects the criminality involved."
This was a brutal crime. Whatever the personal circumstances of the offenders, and however encouraging their prospects of rehabilitation, justice required, in the case of Mr Walter, a minimum term greater than 6 months, and in the case of Mr Thompson, a minimum term (in the context of an order of periodic detention) exceeding 4 months. The statistics furnished by the Judicial Commission, in respect of an offence under s95(1) of the Crimes Act, suggested that a minimum term of 6 months was at the very bottom of the range, and represented only a small proportion of the cases. It was plain that the crime committed by these offenders could not be so regarded.
In each case, therefore, the Crown had demonstrated error. There was a need to resentence, subject to the Court's discretion to intervene.
Discretion.
Here, counsel for each offender pointed to the significant delay on the part of the Crown. The offences were committed on 8 November 2002. Mr Thompson pleaded guilty in the Local Court on 22 April 2003. Mr Walter entered his plea on 27 May 2003. Both were committed for sentence in the District Court. The Crown, however, as the sentencing Judge remarked, failed to bracket the matters so that they proceeded together. Mr Thompson (although not Mr Walter) was listed for sentence before Mahoney ADCJ on 13 June 2003. Evidence was taken. The proceedings were adjourned, part heard, so that they could link up with the proceedings against Mr Walter. Both matters were fixed for hearing on 8 August 2003.
However, on 8 August 2003 the matter was again adjourned. Counsel for Mr Thompson was present and ready to proceed. However, counsel for Mr Walter (who was then appearing pro bono) was not available. The matter was then fixed for 15 September 2003. On that day, however, it could not proceed. The sentencing Judge was part heard in Lismore. Both matters were then fixed for hearing on 11 December 2003.
On 10 December 2003, counsel for Mr Walter made an application to vacate the hearing scheduled for the next day. Mr Walter had been required to demonstrate his Aboriginality to qualify for legal assistance. That took time. Having been accepted as an Aboriginal, representation was provided by the Aboriginal Legal Service. That Service determined, in the short time available, that further evidence was required. Both matters were again adjourned. They were fixed for hearing on 4 March 2004. On that day, at last, they proceeded. Each offender was sentenced.
Having been sentenced, the Director of Public Prosecutions permitted seven weeks to elapse before signing the Notice of Appeal (21 April 2004). The Notice in each case was served on 24 April 2004.
The appeal having been lodged, the matter again did not proceed with despatch. Transcript of the sentencing proceedings and the remarks on sentence were not available. The appeal was listed on 8 July 2004. It was adjourned. It ultimately proceeded on 27 August 2004.
Mr Thompson did not cause that delay. Although the reasons for the adjournments between August and December 2003 do not reflect adversely upon the Director, the untidy and prolonged nature of the sentencing proceedings can be traced to the initial failure of the Director to ensure that both matters proceeded at the one time. In a matter in which the Director claimed, and the Court has found, that the sentences were manifestly inadequate, it was unsatisfactory to delay seven weeks before serving the Notice of Appeal. The Crown, although not the Director, was responsible for the delay on the appeal, in failing to prepare transcript in a timely way.
Delay is important in the context of the Court's discretion on a Crown appeal. Hayden JA said this in R v Hernando (2002) 136 A Crim R 451:
"18. Sentences which are so lenient that on their face they reveal appellable error are not only intrinsically undesirable, but carry the further disadvantage of having a cruel impact on the respondents who are beneficiaries of a legally flawed generosity. The Crown is in no way to be criticised for seeking to challenge totally unsatisfactory sentences, at least if this is done speedily. Even where particular appellate courts decide against a further term of imprisonment, the impact on the respondents of the uncertainty in the period between when the Crown gives notice of its desire to appeal and the time when the appeal is decided must be agonising. Those respondents may deserve greater punishment than they received at the sentencing stage, but not that type of punishment. In the context of civil cases Lord Griffith famously spoke of the 'strain' imposed on personal litigants, the 'anxieties' occasioned by facing new issues, and 'the raising of false hopes': Ketteman v Hansel Properties Pty Ltd [1987] 1 AC 189 at 220. These factors obviously press down even more heavily on accused persons facing Crown appeals occasioned by erroneous sentencing."
Having taken these matters into account, the Court determined that it should intervene and resentence. The delay, nonetheless, remains relevant to the sentences to be imposed in substitution for those set aside.
The resentence of Mr Thompson.
It is recognised that, after a successful Crown appeal, there is an element of double jeopardy. The offender faces sentence for a second time on the same facts. The sentence which is substituted should therefore be towards the lower end of the range (Dinsdale v The Queen (2000) 202 CLR 321 at 341).
In the case of Mr Thompson, taking account of his role in the offence and his subjective case, his sentence should reflect three additional matters. First, it should take account of the significant progress which he has continued to make in his rehabilitation. He has remained employed at the poultry farm and has moderated his intake of alcohol. Secondly, the sentence should reflect the time spent by him attending for periodic detention. Thirdly, it should take account of the delay in respect of which Mr Thompson is blameless.
It should be understood that the sentence substituted is emphatically not the sentence which the Court believes was appropriate in the first place. It is a sentence moderated in accordance with the principles applicable after a successful Crown appeal.
In the case of Mr Thompson, the orders of the Court made on 27 August 2004 were as follows:
1.            Crown appeal allowed.
2.            Sentence imposed in the District Court quashed.
3.In lieu thereof the respondent sentenced to imprisonment for 3 years to date from 13 March 2004. The Court specified a non parole period of 9 months commencing on 13 March 2004 and expiring on 12 December 2004.
4.            The respondent to be released to parole on that date.
5.The Court noted that in setting the non parole period, it was conscious that during the span of time specified the respondent, Mr Thompson, has served some periods of periodic detention and has been at liberty during other periods.
6.The respondent, Mr Thompson, should surrender to custody forthwith.
The resentence of Mr Walter.
Mr Walter has made good use of his time in prison to address the problems which led to his offending behaviour. He has worked as a carpenter. He has earned a position of trust. He has incurred no internal charges. He is described by Prison Officers as "quiet, polite and compliant". He has attended drug and alcohol counselling. A report prepared by the Probation and Parole Service included the following comments:
"Mr Walter indicated that prior to his incarceration he consumed very large quantities of alcohol on weekends and to a somewhat less, but still significant degree, during the week. He indicated that although he did not consider this to be a problem at the time, he has now had time to take a step back and consider his past behaviour and its consequences. The inmate suggested that the impact of being incarcerated helped to stimulate his desire for self-analysis. The subsequent period of time which he has been able to benefit from, without the negative consequences of alcohol has contributed significantly to his ability to be able to clearly evaluate his prior lifestyle and choices."

The report continued:
"Enquiries with the AOD Worker confirmed that Mr Walter has sought individual counselling to address his alcohol problem. The Worker indicated that the inmate has progressed well and complied with the homework assignments as required. He further stated that Mr Walter appears (to) be very motivated to address his alcohol problem. However, his current placement makes it difficult to offer him any significant long-term intervention. The AOD Worker agreed to speak to the inmate with regards to post release management and offer referrals to community based treatment."
The Service in the same report (28 May 2004) commented upon Mr Walter's prospects of rehabilitation. It said this:
"Mr Walter appears to be regretful of the offence and indicated that the resulting incarceration has served as a 'wake up' call. He pointed to depression and alcohol as the two contributing factors and indicated that since entering custody, he has been attempting to understand his own behaviour. His ex partner confirmed that Mr Walter has had ongoing difficulty with managing his alcohol abuse and has never dealt satisfactorily with the events from his childhood."
The report continued:
"Although eager to be released, Mr Walter appears to have a rather positive attitude towards his incarceration. He considers this period of time as an opportunity to evaluate his past behaviour, develop, through rehabilitation, strategies that will allow for a behaviour change, and finally, the manner in which he will implement and ensure the behaviour change upon his release. It is encouraging that the inmate has largely focused on his rehabilitation and gaining insight into his own behaviour. He expressed commitment to continue rehabilitation and self-improvement following his release and he appears to be quite clear and realistic about the degree of effort necessary to successfully implement those behaviour changes."
Mr Walter's former wife, Ms Sally Bird, was willing to assist after his release.
In determining an appropriate sentence, the principles identified in the case of Mr Thompson apply to Mr Walter. There is a need to moderate the sentence, recognising double jeopardy and the significant delay in sentencing and in prosecuting this appeal.
The orders in respect of Mr Walter made by the Court on 27 August 2004 were as follows:
1.            Crown appeal allowed.
2.            Sentence imposed in the District Court quashed.
3.In lieu thereof the respondent sentenced to imprisonment for 4 years to commence on 4 March 2004. The Court specified a non parole period of 12 months commencing on 4 March 2004 and expiring on 3 March 2005.
4.            The first date of eligibility for parole was specified as 3 March 2005.

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LAST UPDATED: 03/09/2004