Regina v Ensby

[2004] NSWCCA 196

CITATION:	Regina v Ensby [2004] NSWCCA 196
HEARING DATE(S):	16/06/04
JUDGMENT DATE:	24 June 2004
JUDGMENT OF:	Bryson JA at 1; James J at 2; Kirby J at 3
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed.
CATCHWORDS:	Criminal Practice & Procedure - sentence - whether sentence for assault with offensive weapon excessive - health of offender - special circumstances.
LEGISLATION CITED:	Crimes Act 1900 Firearms Act 1996 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Smith (1987) 27 A Crim R 315 Phelan v The Queen (1993) 66 A Crim R 446 R v Fidow [2004] NSWCCA 172 R v Simpson (2001) 53 NSWLR 704
PARTIES :	Regina Raymond John Ensby
FILE NUMBER(S):	CCA 60073/04
COUNSEL:	D Frearson (Resp/Crown) Ms S Kluss (Appl)
SOLICITORS:	S Kavanagh (Resp/Crown) Ralph James (Appl)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/51/0184
LOWER COURT JUDICIAL OFFICER :	Ducker DCJ

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60073/04

BRYSON JA
JAMES J
KIRBY J

Thursday 24 June 2004

REGINA v Raymond John ENSBY

Judgment

1 BRYSON JA: I agree with Kirby J.

2 JAMES J: I agree with Kirby J.

3 KIRBY J: On 12 April 2002 Raymond John Ensby ("the applicant") was arrested at Casino. He was charged with having used an offensive weapon with intent to commit the indictable offence of assault (contrary to s33B(1)(a) Crimes Act 1900). The maximum penalty for that offence is 12 years imprisonment.

4 On 25 November 2002 the applicant was arraigned in the District Court. He pleaded guilty. On 12 June 2003 he was sentenced by Acting Judge Ducker. He asked that the sentencing Judge take account of a further offence on a Form 1, namely, possessing a shortened firearm (not being a pistol) without authority (contrary to the Firearms Act 1996). His Honour imposed a sentence of five years imprisonment, with a non parole period of three years and nine months. The sentence was backdated (to 2 March 2003) to take account of 102 days in custody before Mr Ensby was given bail.

5 The applicant asserts that the learned sentencing Judge was in error in three respects:

· First, the sentence was excessive.

· Secondly, the sentencing Judge failed to give appropriate weight to the applicant's subjective circumstances.

· Thirdly, the sentencing Judge should have found special circumstances.

6 Before considering each ground, I should briefly state the circumstances in which the offence was committed.

The offence.

7 The matter proceeded before his Honour upon the basis of an agreed statement of facts, and a number of documents from the Crown brief. The documents included statements from eye witnesses, and a transcript of an interview with Mr Ensby by the police. The statement of the victim, Ms Alison Battis, however, did not form part of the tender. Whilst acknowledging his guilt, Mr Ensby disputed Ms Battis' account of the circumstances giving rise to his offending behaviour. Mr Ensby did not give evidence on sentence.

8 Mr Ensby and Ms Battis lived together in Casino for approximately eighteen months. Ms Battis had a six year old son. At the end of 2001 the relationship soured. Ms Battis claimed that she had been assaulted by Mr Ensby on a number of occasions. She said that she lived in fear of him.

9 On 12 January 2002 Ms Battis attended the Casino Police Station. She described the assaults she said had been perpetrated against her, the last being in November 2001. She made it plain that she did not wish to prefer charges. Rather, she sought an Apprehended Violence Order against Mr Ensby.

10 The order was duly made and served. In March 2002 Ms Battis arranged for her son to be cared for by her estranged husband, Mr Leon Battis. She then left the Casino area.

11 On 10 April 2002, the day before her son's birthday, Ms Battis returned to Casino. She apparently had left a pair of leather boots at the home of Mr Ensby. Upon her return she spoke to him on the phone. According to Mr Luke Callaghan, who shared a house with the applicant, Mr Ensby thereafter made a number of telephone calls in which he appeared agitated and abusive.

12 Late on the evening of 12 April 2002, Ms Battis, incautiously, went to the premises in which Mr Ensby lived. She was accompanied by a young man, whom she knew from a childcare facility which her son attended. Her friend quickly excused himself and left once it became apparent that there may be unpleasantness.

13 Mr Ensby repeatedly asked Ms Battis to come to his bedroom. He said he wished to speak to her in private. Each time she refused. According to Luke Callaghan, Mr Ensby took hold of a baton with a piece of frayed nylon rope at the end, which had been hanging on the doorway. He lifted the baton over his head and threatened Ms Battis with it.

14 Mr Ensby asserted that, at some point, Ms Battis got hold of the baton and repeatedly struck him with it. He said he responded by producing a shortened .22 calibre rifle. The butt and the barrel of the rifle had been sawn off. A tennis ball had been taped to the shortened barrel to form a crude silencer. Ms Battis claimed that Mr Ensby waved the weapon around, pointing it at her. Mr Callaghan, however, did not see the firearm produced.

15 Ms Battis decided to leave the house. She worked her way towards the front door. Mr Ensby moved to block her path. She nonetheless managed to escape. She ran from the premises with Mr Ensby pursuing her.

16 Ms Battis was a woman aged 30 years. She was described as "slight". Mr Ensby, on the other hand, was described by the sentencing Judge in these terms:

"The defendant is a big powerful looking man albeit now in his late fifties."

17 Ms Battis ran along McDougal Street, Casino, towards the cemetery. She was carrying the wooden baton, which she said that she had picked up for her own protection. The applicant caught up with her. He pushed the firearm into her neck. Such was her fear that she began to urinate and dry retch. She was ordered to walk into the cemetery, which she refused. She was again prodded with the firearm and again urinated.

18 Ms Battis asserted that, whilst prodding her in this way, Mr Ensby threatened to kill her. As they walked towards a roundabout, she saw several men on the verandah of a nearby home. She called for help. As it happened, a police officer, Inspector Driver, was approaching the intersection in a marked police vehicle, coming from the south. He heard the screams of Ms Battis. He described what he saw in these words:

"I drove up to the intersection of Centre and Johnson Streets Casino and I made a U-turn at the roundabout. I then drove south along Centre Street and as I approached the couple I saw that the male had something in his right hand and was pointing it at the left side of the female's stomach. This object was about 30 cm long protruding from his right hand. I stopped the police car and as I did I saw the female drop to the ground cowering down on her knees. She lifted her arms up and covered her head with her arms, and her torso was bending over. The male had his left hand on the female's right shoulder I saw the male point what I considered may have been a firearm at the left side of her head, however it appeared too short for a rifle and too long for a pistol. The object was angled down to her temple. I was about to alight from the police vehicle and the male turned around. He still had this object pointed at the left side of the female's head and then he stepped to the left then to the right."

19 The victim believed that she was going to die. She closed her eyes. She again urinated in her pants.

20 Inspector Driver approached Mr Ensby, who endeavoured to escape. However, his path was blocked. Bravely, the Inspector took hold of the barrel of the firearm and removed it from his grasp. Mr Ensby was arrested. He told the officer that the weapon was not loaded, and indeed it was not. Mr Ensby was searched. He had two cartridges capable of being fired by the rifle in the pocket of his jeans.

21 Ms Battis, meanwhile, had rushed into a nearby house. She passed a couple on their front verandah, and closed the door to their home behind her. The occupant of the home went to investigate. He described what he saw in these terms:

"13. I got up and went inside to see how she was. She was just laying down in the hallway, curled up on her side. She was crying. When I opened the door she jumped like I was going to hurt her. I said, 'I'm not going to hurt you' and sat down and asked her if she was alright. I couldn't understand what she was saying, she was talking quick and changing subject halfway through or mumbling. Then she asked for a drink of water so I got her a drink of water. At that point she said quite clearly to me: 'He put a shotgun to my head.' I talked to her for a couple of minutes."

Ground 1: The sentence was excessive.

22 The sentence imposed was a term of imprisonment of five years. Since a discount of 20 percent was made for the plea of guilty, his Honour's starting point was a term of six years and three months. That, according to the applicant, was too high. Although the applicant acknowledged that the offence was serious, s33B(1) simply contemplated putting someone in fear. Ms Battis had suffered no physical harm. The section comprehended much worse conduct than that of the applicant, as his Honour recognised in the following remarks: (ROS 6)

"Assault per se carries a maximum penalty of two years imprisonment, whereas the present charge carries a maximum of twelve. Although the section also covers more serious indictable offences, in the present instance the use of the offensive weapon to instil terror in the victim is the most serious aspect of the offence. Although the physical hurt suffered by the victim was not great, the other aspects of the offence are very cruel. The offence, although perhaps unpremeditated must be treated as a serious one."

23 His Honour added that he would place the offence "below the middle of the range, at about point four on a scale of 10".

24 The applicant submitted, therefore, that taking account of the objective criminality, and the subjective circumstances of Mr Ensby (the subject of ground 2), the sentence was too severe. The sentencing discretion had miscarried.

25 The Crown, in its submissions, drew attention to a number of matters. First, his Honour described the terror felt by the victim in these words: (ROS 5/6)

"One can only imagine the terror that she felt when told, after being forced to her knees, that she was going to be killed. The conduct of the offender was both cowardly and reprehensible. He terrorised the victim and deprived her of every vestige of self respect. It seems likely that this episode will linger long in her memory."

26 Secondly, the offence was one in which deterrence, both general and personal, was important, as his Honour recognised. One year earlier, on 18 April 2001, the Local Court at Casino had sentenced Mr Ensby for stalking and intimidating a woman with intent to cause fear of physical and mental harm. That offence occurred on 15 February 2001. The victim was another woman with whom Mr Ensby had had a relationship. Her fear stemmed, in part, from Mr Ensby's access to firearms, which he kept concealed at his home. Mr Ensby was sentenced to nine months imprisonment, the sentence being suspended upon his entering into a bond (s12 Crimes (Sentencing Procedure) Act 1999). It was a term of the bond that he should not come within ten kilometres of Kyogle (where the woman lived), except to drive through without stopping. Mr Ensby was also obliged to submit to the supervision of the Probation and Parole Service, including counselling in respect of anger and violence.

27 Although the bond had expired by the time Mr Ensby was charged with the present offence, it had not long expired. It was plainly a relevant and disquieting feature of Mr Ensby's background. His Honour said this: (ROS 7)

"Offences of this nature require that general deterrence be given full weight. There is also reason for personal deterrence, bearing in mind that the offender did have two cartridges in his pocket, which were capable of being fired by the weapon he had, had Inspector Driver not come on the scene. Also the matters at the Lismore Local Court on 16 February 2001 (sic), of intimidation and stalking involved a threat to use a firearm."

28 Thirdly, his Honour was also obliged to take into account the possession of the shortened firearm, the subject of the offence included on the Form 1. The firearm was the same shortened rifle used by Mr Ensby when committing the assault in count 1.

29 I will shortly deal with the second ground of appeal, which concerns the subjective features of the applicant's case. Taking account of those features, I believe the objective gravity of Mr Ensby's conduct was such that the sentence could not be described as being outside the range of sound sentencing discretion.

30 I would dismiss the first ground.

Ground 2: The subjective case.

31 It was said on behalf of the applicant that his Honour did not make proper allowance for "the offender's health, antecedents and prospects of rehabilitation".

32 Dealing with his criminal record, his Honour remarked that it was "not of assistance to him". Mr Ensby had a number of convictions, in a number of states, mainly for offences of dishonesty, including larceny and housebreaking. He had, on many occasions, been sentenced to terms of imprisonment, each relatively short.

33 Two things can be said favourable to the applicant in respect of his record. First, there were significant gaps, which demonstrated that he was capable of law abiding behaviour. That, no doubt, was relevant to his prospects of rehabilitation. Secondly, the offences for which he had been convicted, at least before 2001, were not crimes of violence.

34 His Honour was conscious of both matters. In his remarks he referred to each (ROS 7, 8 and 9). They were matters to be weighed alongside the disturbing and recent behaviour of Mr Ensby, namely, the conviction in April 2001 and the offence which is the subject of this appeal.

35 His Honour was provided with reports from a psychologist. They revealed a history of significant alcohol abuse in earlier times and, more recently, drug abuse, including at the time of the offence. Mr Ensby disclosed to the psychologist that, for some time before the offence, he had been using amphetamines intravenously. He asserted however that, since going to prison, he had ceased taking drugs. The psychologist said he had no way of verifying that claim but, assuming it was right, it was a "positive prognostic sign", as were the gaps in Mr Ensby's criminal history. On the other hand there were the following negative features:

"The negative prognostic indicators are that his criminal history has spanned such a large time period, that even in his 50's he had a significant drug problem. Also his limited insight and tendency to minimise his own contribution to his circumstances is of concern."

36 I see no basis for the suggestion that his Honour undervalued Mr Ensby's prospects of rehabilitation or wrongly characterised his criminal history.

37 On 3 February 2003, whilst awaiting sentence, Mr Ensby was involved in a serious motor vehicle accident in which the other driver was killed. Mr Ensby was not at fault. He also suffered injuries and was admitted to hospital. His injuries were described by Dr Banks, his treating doctor, in these terms:

"... fracture of left 8th rib (and possible old multiple rib fractures), right shoulder soft tissue injury, fracture of right acetabulum (hip)."

38 Mr Ensby complained of right shoulder and neck pain. His Honour said this, referring to the report of the physiotherapist (Ex 3):

"It seems that he has been left (report of physiotherapist Mr Haywood, Exhibit 3) with limitation of movement of the cervical spine on rotation and extension and left lateral flexion. He also has reduced flexion and abduction of the internal rotation to the sacrum. The suggestion is that he will need further physiotherapy for some time. That is something that the Corrective Services should bear in mind."

39 The applicant complains that such remarks undervalued his disabilities and the difficulties they will create for him in gaol. The relevant principle was stated by King CJ in R v Smith (1987) 27 A Crim R 315 in these terms: (at 317)

"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."

40 Here, in relative terms, the disabilities were not substantial. It is not obvious that they would make imprisonment a greater burden to Mr Ensby. His Honour was plainly conscious of them. In my view no error is demonstrated in not having specifically characterised them as something calling for mitigation.

41 I would reject ground 2.

Ground 3: Special circumstances.

42 It was submitted on behalf of the applicant that there were two features in Mr Ensby's background that made it appropriate for his Honour to find special circumstances. The first was his history of drug taking and the second his inability to control his anger in the context of domestic relationships. Both, according to submissions made on behalf of the applicant, suggested that Mr Ensby would benefit from an extended period of conditional release on parole (Phelan v The Queen (1993) 66 A Crim R 446, per Hunt CJ at CL at 449-50).

43 The Crown in response drew attention to R v Fidow [2004] NSWCCA 172, where the Chief Justice emphasised the discretionary nature of a finding of special circumstances. He said this:

"18. In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the 'decision' to be that the statutory proportion of one-third be 'less'."

44 It is not enough that there is material before the Judge which was capable of justifying a finding of special circumstances. The applicant must demonstrate error in the exercise of the discretion not to vary the ratio. As to that issue, in R v Simpson (2001) 53 NSWLR 704 the Court made the following observation: (at 73)

"As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non parole period is found to be manifestly inadequate or manifestly excessive."

45 In R v Fidow (supra para 41) itself, the Court declined to intervene. Spigelman CJ, having referred to a recent paper "Sentencing Trends and Issues" (March 2004), said this:

"22. This research makes it necessary for this Court to state the obvious. Simply because there is present in a case a circumstance which is capable of constituting a 'special circumstance' does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation."

46 His Honour was, of course, an experienced Judge. He specifically addressed the issue of special circumstances in the course of argument (T6-7) and declined to vary the statutory proportion. Whilst he did not elaborate upon the view he formed, it was, I believe, a view open to him. No error has been demonstrated.

Order.

47 I would propose the following orders:

1. That leave to appeal be granted.

2. That the appeal be dismissed.

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Last Modified: 06/28/2004