Ross v Mothersole
[2010] ACTSC 125
•19 October 2010
EGAN DARIUS ROSS v DARREN STEPHEN MOTHERSOLE
[2010] ACTSC 125 (19 October 2010)
APPEAL AND NEW TRIAL – appeal from ACT Magistrates Court – domestic violence offences – serious assault.
SENTENCE – plea of guilty – need to disclose effect on sentence of guilty plea.
SENTENCE – effect of culpability on sentence – intention or recklessness – need for finding.
Crimes (Sentencing) Act 2005 (ACT), ss 7, 35(4), 37
Criminal Code 2002 (ACT)
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10
Veen v The Queen (No 2) (1988) 164 CLR 4645
R v Hamid (2006) 164 A Crim R 179
Sayin v The Queen [2008] NSWCCA 307
Saga v Reid & Anor [2010] ACTSC 59
R v Campbell [2010] ACTCA 20
Carpenter v Purcell [2008] ACTSC 34
Cotter v Corvisy (2008) 1 ACTLR 299
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Thomson (2000) 49 NSWLR 383
Harris v The Queen (2005) 158 A Crim R 454
Evans v The Queen (2007) 236 CLR 521
R v Boyce (ACTSC, Crispin J, SCC 233 of 2006, 20 November 2006, unreported)
R v Ward [2008] ACTCA 5
R v Gorman (ACTSC, Refshauge J, SCC 319 of 2008, 17 November 2008, unreported)
R v Roberts (ACTSC, Refshauge J, SCC 126 of 2009, 31 May 2010, unreported)
R v Riddle [2010] ACTCA 8
Siganto v The Queen (1998) 194 CLR 656
Cameron v The Queen (2002) 209 CLR 339
Markarian v The Queen (2005) 228 CLR 357
R v Cunningham [1957] 2 QB 396
Spooner v The Queen [2009] NSWCCA 247
R v Davies [2007] NSWCCA 178
JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
SCA 26 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 October 2010
IN THE SUPREME COURT OF THE )
) No. SCA 26 of 2010
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
EGAN DARIUS ROSS
V
DARREN STEPHEN MOTHERSOLE
ORDER
Judge: Refshauge J
Date: 19 October 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The sentence on the count of assault occasioning actual bodily harm be set aside.
In lieu, a sentence of 2 years’ imprisonment to date from 19 February 2010 be imposed.
The other sentences be confirmed, thus amounting to a total head sentence of 30 months.
A non-parole period of 10 months to date from 19 February 2010 be set.
Mr Egan Darius Ross appeals from sentences imposed by Magistrate Campbell for two serious assaults, one occasioning actual bodily harm, and two other offences committed in the City Watch House after he was arrested by police.
Mr Ross was sentenced on 24 March 2010 by the learned Sentencing Magistrate to a total of 36 months imprisonment with a non-parole period of 18 months.
He appeals against these sentences on the ground that they were manifestly excessive.
The Facts
It appears that Mr Ross and the victim of the two assaults were in a relationship. Indeed, Mr Ross described the victim to the author of the Pre-Sentence Report as “his soul mate” and stated his “intention to marry her in the future”. The author of the Pre-Sentence Report commented:
Whilst this relationship appears to be supportive and constructive when Mr Ross is sober it appears to become quite destructive once alcohol is introduced.
The first offence occurred when Mr Ross was drinking at a club in Belconnen. The victim arrived later to find Mr Ross very intoxicated. Nevertheless, Mr Ross bought himself a drink and one for the victim. She indicated that she did not need one and he became abusive. Ultimately, the victim poured the drink into an ashtray on her table and Mr Ross stood up, using quite foul language to her, raised his right hand that was holding a beer glass and hit the victim in the face with it. The glass smashed and cut the victim’s face. She experienced severe pain.
Sometime later, the victim was taken to Calvary Hospital and received five stitches to the left side of her face.
Mr Ross was arrested and taken to the ACT Watch House. Due to his level of intoxication and aggressive manner, he was not interviewed.
This incident constituted the charge of assault occasioning actual bodily harm to the victim.
At the Watch House, Mr Ross continued to be aggressive and argued with the Watch House Sergeant.
Although police attempted to calm him down, he persisted with his loud and aggressive behaviour and, ultimately, acting in an extremely aggressive manner, pointed at the police constable beside him and said “I will smash your face in”. He then adopted a fighting stance and clenched his right fist and cocked his elbow back. The police officer stepped back as he believed there was an imminent likelihood of violence towards him.
Mr Ross continued to make further threats against the police officer to the extent that the police officer had to leave the Watch House charge area as he feared that if he remained in sight of Mr Ross there would be further threats and possible actual violence against him.
Later, Mr Ross became more co-operative but when police went to search him he was asked to put his hands on the counter and spread his legs so that the search could continue. He questioned the request and then tensed up. He then struggled with police officers requiring the police to hold him against the charge counter to gain control and finish the search. His attitude was poor and unco-operative and he had to be forcibly held by the arms so that police were safe from assault and from his blood which was dripping out from an injury to his hand. Understandably, the police were wary of coming in contact with his blood.
He continued to resist.
These events constituted the charges of obstructing a public official and threatening to harm a public official.
The fourth charge, the charge of assault, occurred on 23 February 2010 when he and the victim were drinking at a pub in Civic. As they left the pub, they argued with each other, Mr Ross accusing the victim of taking money out of his wallet earlier in the evening.
The victim then turned into a laneway and Mr Ross followed her yelling “you’re not going anywhere!”. He then stood over her and said “I could kill you right now and no-one would ever know”. Understandably, the victim felt extremely fearful that, at the very least, Mr Ross would cause her serious harm. Unsurprisingly, she knocked the beer glass out of his hand fearing that he would use it as a weapon against her, as he had done before.
Mr Ross then said “I love you ... get up and let’s go home” but she rejected that because of his threat to kill.
Mr Ross then pulled her to her feet putting his arms around her and placing her in a headlock. A witness described him as using a great deal of force in the process. The victim screamed and she managed to struggle free and left the laneway. Mr Ross then head-butted her in the face making direct contact with her left eyebrow causing severe pain and blurring her vision. He then punched her in the face making contact with her right upper lip and nose again causing pain. This was a vicious, prolonged and unprovoked attack.
Personal Circumstances
Mr Ross, the first child of two to his parents, grew up in Canberra with a relatively unremarkable childhood.
His relationship with his father, however, has deteriorated and in December 2009, his father obtained a protection order against him after “becoming tired of seeing his years of alcohol abuse”.
Mr Ross had a long-term relationship lasting 13 years during which he fathered two children, now aged 13 and seven. The partnership dissolved due to his ongoing alcohol abuse.
He has had regular contact with his children until about December 2009 when his former partner also had a protection order issued against him because of his failure to address alcohol issues.
He has been in his present relationship with the victim for 18 months and he appears to value it highly, at least when he is sober. She appears to do so as well. He has shown sufficient insight to identify alcohol as the main contributing factor interfering with that relationship.
There are negative factors in the relationship but it is not necessary to address those here. He has expressed an intention to marry his partner.
Perhaps an unsettling feature is that he has been homeless for most of the year before he was sentenced, with he and his partner staying with friends for short periods of time and then moving on to other friends houses.
Mr Ross was schooled in Canberra which he enjoyed and, after leaving school, completed an apprenticeship in panel beating and spray painting.
Although being unemployed for about two years, he has been mostly employed since leaving school.
At about age 18, he started using illicit substances. He completed a six-month voluntary rehabilitation programme through Mancare in 2002 and has ceased using drugs since then.
He appears, however, to have replaced his drug use with alcohol and has struggled with alcohol consumption and abuse.
Although apparently not participating in any alcohol programmes since then, he has shown an interest in the First Steps Relapse Prevention Programme in the Alexander Maconochie Centre and had completed it since his incarceration and prior to sentencing.
Mr Ross shows sufficient insight to identify the problems he has had with his ex-partner, his father and the current abusive relationship with the victim, all being caused by his alcohol abuse but, until his arrest and incarceration, he seems to have taken no positive steps to address that problem.
Mr Ross has a criminal history dating back to 1993 including a number of relatively serious property and drug offences together with some drink-driving offences and assaults. His record deprives him of some leniency: Veen v The Queen (No 2) (1988) 164 CLR 465.
The Sentence
After his arrest for the first offence, Mr Ross appeared in court and was bailed for approximately one month. He breached his bail shortly after but no action was taken.
On 27 January 2010, he entered pleas of guilty to the three charges arising out of the January incident and on 10 February 2010 consented to jurisdiction of the Magistrates Court to sentence him. The matter was adjourned, no doubt in part to arrange for preparation of the Pre-Sentence Report, and he was sentenced on 24 March 2010.
In relation to the second assault charge, he was arrested on 24 February 2010 and bail was refused. He was later bailed by the Supreme Court, having spent 34 days in custody. He was sentenced for this offence also on 24 March 2010.
The submissions on behalf of Mr Ross were directed largely at the prospect of rehabilitation and his willingness to address his alcoholism. It was submitted that he was capable of rehabilitation. He was said to have some of the marks of stability, including a good work record; his employer described him to the author of the Pre-Sentence Report as “a good worker and ... talented” though he expressed some reservations about re-employing him.
He appears, when not affected by alcohol, to have been a good partner, the previous relationship having lasted for 13 years, and to be a good father whose children are currently missing him.
He had himself, as the Pre-Sentence Report stated, initiated contact with the staff of the Alexander Maconochie Centre to enter the First Steps Relapse Prevention Program in order to address his alcohol abuse issues while in custody. He had also made contact with the Prison Chaplain and was participating in regular Bible studies in prison. There was also evidence that he had been employed since his arrest and that his employer had encouraged him, apparently successfully, to avoid alcohol during the week.
It was recognised, nevertheless, that an immediate custodial penalty was inevitable.
He entered pleas of guilty and they were significant. They facilitated the course of justice, and showed, as the learned Sentencing Magistrate noted, “insight into his conduct” and avoided the need for the victim to give evidence.
The prosecution submitted that the plea of guilty did not require a significant discount given that there were independent witnesses and closed-circuit television (CCTV) for the first three offences and an independent witness for the assault, presenting, I assume it was intended to suggest, an overwhelming case.
The prosecution further noted that this was a family violence offence. Due to the relationship between the two and their commitment to each other, this renders the victim more vulnerable and entitled to particular protection by the law.
References were made to the well-known decision of the New South Wales (NSW) Court of Criminal Appeal in R v Hamid (2006) 164 A Crim R 179, where Johnson J (with whom Hunt AJA and Latham J agreed said (at 193)):
An adequate account of domestic violence should recognise that it typically involves the exercise of power and control over the victim, is commonly recurrent, may escalate over time, may affect a number of people beyond the primary target (including children, other family members and supporters of the victim) and that it contributes to the subordination of women; domestic violence typically involves the violation of trust by someone with whom the victim shares, or has shared, an intimate relationship; the offender may no longer need to resort to violence in order to instil fear and control ...
Later his Honour said (at 195-6):
In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.
Later still, his Honour commented (at 199):
It has been emphasised repeatedly by this Court that great significance should be given to general deterrence in sentencing domestic violence offenders.
The prosecutor submitted that the offence of assault occasioning actual bodily harm was what might be described as “glassing”, a particularly vicious form of offending.
Perhaps importantly for this appeal, the prosecutor handed up a copy of a decision of the NSW Court of Criminal Appeal in Sayin v The Queen [2008] NSWCCA 307 where Grove J (with whom McClellan CJ at CL and Howie J agreed) cited (at [8]) what the District Court Judge had said in sentencing, with apparent approval, namely:
In my view it would be difficult, albeit not impossible, to inflict more damage to the face of another person by the use of a glass in this way than the offender did in this instance. To ram a glass into the face of another is calculated to inflict serious damage to that part of each of us is most conscious of in terms of the way other people perceive us, that is to say the face.
I do note that the District Court Judge went on, in the passage cited, to say:
I have no doubt whatever that this is what the offender intended. This was the essence of the malice in what he did to Mr O’Grady and to which he has pleaded guilty. An intention to disfigure Mr O’Grady’s face - an intent to seriously disfigure it. The offender accepts that what by his plea that what he did caused Mr O’Grady grievous bodily harm. In plain English, really serious bodily harm.
In her sentencing remarks, the learned Sentencing Magistrate noted that Mr Ross was now 34 years old and so youth was not a significant factor. She noted his history and the objective seriousness of the offences which required nothing other than an immediate custodial penalty.
Her Honour described his conduct, with respect, quite accurately, as “appalling”.
Her Honour accepted the prosecutor’s submission and endorsed the comments cited “about the use of a glass when people are drunk”. Her Honour decided that “it seems clear that I do have to impose a penalty that sends a very clear example or message that courts just will not tolerate this sort of conduct”.
Her Honour accepted that his criminal record deprived Mr Ross of some leniency and that her Honour had “to fashion a penalty that will make it clear on the record that [his] conduct is condemned”.
Her Honour then imposed the following sentences:
On the assault occasioning actual body harm, you are convicted and sentenced to 30 months’ imprisonment which is back dated to 19 February this year and I’ve imposed an 18 month non-parole period ... which starts therefore on 19 February and ends on 18 August next year. In relation to the assault, I cannot make that penalty entirely concurrent with that one or there would be no punishment for it.
And there are aggravating features, so what I have done is sentenced you to 12 months’ imprisonment, but I have made only six months of it consecutive upon the other, which makes it a total of 36 months in prison. But I have left the non-parole period as that shorter non-parole period of 18 months.
...
In relation to the two other matters, you are convicted on each sentence to 1 month imprisonment, but they are concurrent with the penalty already imposed on [the assault occasioning actual bodily harm charge] which I suspect means that the time has already been served.
The Appeal
Although the transcript shows that Mr Ross fully accepted that a term of full-time imprisonment was inevitable, he filed a Notice of Appeal on 16 April 2010. The sole ground of the appeal was that the sentence was manifestly excessive.
Mr J Sabharwal, who appeared for Mr Ross, identified in his written submissions and orally that the real issues were:
(a) no real discount had been given for the plea of guilty;
(b) the characterisation of the more serious offence did not take all the facts into account.
He did not really challenge the sentence for the assault charge and not the two shorter sentences.
Mr D Sahu Khan, who appeared for the respondent, submitted that:
(a) her Honour had taken the plea of guilty into account; and
(b) the sentences were within range.
Jurisdiction
The appeal is brought under Pt 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) which provides for appeals from sentences of imprisonment to this Court from the Magistrates Court.
In Saga v Reid & Anor [2010] ACTSC 59, I set out the principles upon which such appeals are to be conducted, when I wrote (at [44]):
The principles on which such appeals are to be conducted seem, on the basis of the authorities, to be as follows:
1.The Court should only exercise its powers to intervene where, having regard to all the evidence before it, including any further evidence admitted on the appeal, the order appealed from is demonstrated to result from some legal, factual or discretionary error.
2.In finding the facts, the appellate court is in as good a position as the lower court, to decide the proper inferences to be drawn from the undisputed facts where no oral evidence is given in the court below, or the Trial Judge’s findings based on oral evidence are not challenged. The appellate court must, however, give respect and weight to the conclusion of the Magistrate, although, once having reached its own conclusion, must give effect to it.
3.The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance but error must be found in the decision of the lower court.
4.A legal, factual or discretionary error may be found where the Lower Court, inter alia, has taken into account irrelevant considerations or failed to take account of relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts.
5.The error may not be a specific error that can be identified but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error may be inferred, given that the sentence is excessive, unreasonable, inadequate, unjust or wrong. From that inference, of course, there must be able to be drawn the conclusion that a different sentence is appropriate.
6.Despite the finding of error, it is still necessary to show that the sentence is manifestly excessive, unreasonable or manifestly inadequate and, in the event that this is not shown, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence.
It has been suggested that item six does not, in fact, represent the law. It has been suggested that once an error is shown, the sentence below must be set aside and the sentencing discretion of the appeal court is enlivened unconstrained by the sentence of the lower court. That may well be so. I have not heard full argument on the issue or had the opportunity fully to consider the point and, as this principle (if such it be) does not affect the outcome of this appeal, I shall reserve my position on it.
Under s 216 of the Magistrates Court Act, the lodging of the Notice of Appeal stays “the enforcement or execution of the ... sentence or penalty appealed from”. Mr Ross was, however, not granted bail and has remained in custody. Thus, on the appeal, consideration needs to be given to the period of custody between the date of filing the Notice of Appeal and the date on which the appeal is determined which, at present, is not a period of custody during which he is serving the sentence imposed.
Principles
In R v Campbell [2010] ACTCA 20, the Court of Appeal addressed the issue of manifest excess and inadequacy of sentence when the Court said (at [32]-[34]):
32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):
46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion.
See also R v Thorn [2010] ACTCA 10 (at [33]).
33.As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
Consideration
(a) A Plea of Guilty
The first issue is the plea of guilty. Mr Sabharwal submitted that all references to the plea were made only in argument, well before judgment, and the reasons for sentence gave no indication of what effect the plea had made to the sentence.
Mr Sahu Khan submitted that the references were sufficient to show that the learned Sentencing Magistrate had taken the plea into account and appropriately. He relied on what Penfold J said in Carpenter v Purcell [2008] ACTSC 34 where (at [17] - [19]) her Honour said:
17.The appellant entered her plea of guilty 5 weeks after she was arrested and only 2 weeks after first dealing with her own legal representatives (she had previously dealt with a duty lawyer in the Magistrates Court). Her pleas were specifically drawn to the learned Magistrate’s attention by her solicitor in his submissions, but were not mentioned at all by her Honour in the prepared sentencing remarks she handed down a week later.
18.Section 35 of the Crimes (Sentencing) Act 2005 (ACT) gives a sentencing court a power, rather than a duty, to reduce a sentence of imprisonment having regard to an offender’s plea of guilty. There is no obligation to reduce a sentence because of a guilty plea, but I consider that the section does require a court to advert to the issue where it is considering imposing a sentence of imprisonment on a person who has pleaded guilty.
19.The learned Magistrate appears, therefore, to have fallen into error in not specifying her conclusions about the significance of the appellant’s guilty plea.
Her Honour, however, went on to hold that this did not entitle the appellant to succeed in the appeal as (at [24]) “the sentences actually imposed appear to be appropriate and ... the imposition of a different sentence is not warranted”.
He also referred to what I said in Cotter v Corvisy (2008) 1 ACTLR 299 (at [54]), namely:
54.It is true that the learned Magistrate did not make one reference to the appellant’s plea of guilty. Given the constraints on a Magistrate, (see Lumby v Cooper [2008] ACTSC 53 at [119]), not much may be required to discharge the obligation under s 35(2)(a) of the Crimes (Sentencing) Act to do so. An express reference is usually sufficient: Moutrage v Haines [2008] ACTSC 36 at [25]. Acknowledgement by the sentencer of the submission by the prosecution that the plea will be taken into account may also be sufficient and this would be a helpful way in which the prosecution could assist a sentencer to avoid appellable error. Certainly there is high authority to the effect that a failure to refer to a plea of guilty should ordinarily be taken that the sentencer did not give it weight. Spigelman CJ said in R v Thomson (2000) 49 NSWLR 383 at 395:
As part of the duty of sentencing judges to give reasons for their decisions, express reference to the fact that consideration has been given to [a plea of guilty] ought to be included in reasons on sentence.
...
The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations.
It is, however, worth noting what I also said (at [55]-[57]) as follows:
55.As I have noted above, the Territory, like NSW, has a statutory obligation to take into account a plea of guilty (and the time it is made or intimated). I do not consider there is a real difference between taking the plea into account (the statutory obligation) and giving it weight (per Spigelman CJ).
56.The learned Magistrate, therefore, was under a statutory obligation to take into account the plea of guilty. This is not a duty to give a discount: Carpenter v Purcell [2008] ACTSC 34 at [18] (Carpenter). The actual effect on the sentence may be minimal; indeed, in this case, the prosecution evidence in support of the charge was overwhelming and s 35(4) of the Crimes (Sentencing) Act would entitle the learned Magistrate to give very little if any discount for the plea. Nevertheless, her Honour was obliged to take it into account and this at least required an express reference to it.
57.If, of course, her Honour did impose a lesser sentence, she was required by s 37 to state the undiscounted penalty that otherwise would have been imposed. It is not easy to determine whether a failure to do so is an error that vitiates a sentence. Elsewhere in the Act, there are obligations to give reasons and these are accompanied by provisions that expressly state that the failure to do so does not invalidate the order made (see, eg ss 78, 82, 89 and 117). These have been discussed in Wilson v Queen [2007] ACTCA 25; they are, however, different, in that they require reasons which s 37 does not in terms require. Applying the canon of statutory construction “expressio unius exclusi alterius est” would suggest, however, that the failure would invalidate the sentence. On the other hand, the maxim has to be applied with care and is not of universal application (Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94) and may not apply when dealing with different requirements, as here: R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 50. My impression is that failure to comply with s 37 would not invalidate a sentence, but I do not need to decide this.
In this case, the learned Sentencing Magistrate did make express reference during sentencing submissions. Thus, her Honour made a couple of references early in the hearing:
HER HONOUR: Those were quite early pleas of guilty by the looks of things, which will need to be taken into account ... So, in a nutshell, he is a violent, aggressive, very antisocial human being, but when sober or calm, has at least insight into his conduct enough to enter pleas of guilty rather than deny the bleeding obvious, perhaps Mr Jones.
There were other references. Mr A Jones, who appeared for Mr Ross before her Honour, specifically referred to the plea of guilty in his submissions and the prosecutor also made reference, submitting that s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) applied, because of the independent witnesses and, in the case of the January incidents, CCTV which captured the assault.
In her Honour’s sentencing remarks, however, there was no reference to that plea of guilty. Relying on what I said in Cotter v Corvisy, however, I would not find that her Honour did not take it into account as she was required to do. It is clearly desirable, indeed very desirable that a sentencer makes express reference in the remarks on sentence to the issue of the plea of guilty, to show that it has been, as statutorily required, taken into account.
A particular problem that is otherwise caused, is that without a conclusion expressed by the sentencer about the significance of the plea and the amount of discount, if any, given for it, as required by s 37 of the Sentencing Act, it is difficult, if not impossible, for an accused person to know the basis of the sentence, and then, if necessary, for the appeal court to assess whether error has been shown in the sentence.
Again, I have not come to a final view about whether the failure to state the undiscounted penalty invalidates the sentence. It is, however, a statutory mandate with which sentencers are expected to comply. It may be that the failure to specify the penalties as required by s 37 of the Sentencing Act is similar to a failure to give reasons for decision, which invalidates a judgment: Pettitt v Dunkley [1971] 1 NSWLR 376. These principles appear to apply to sentencing: R v Thomson (2000) 49 NSWLR 383 (at 394 [42]). They apply more widely in criminal cases, too. See Harris v The Queen (2005) 158 A Crim R 454 (at 459 [22]); Evans v The Queen (2007) 235 CLR 521 (at 595-6 [246]).
The measure of whether the plea has in fact been taken into account, then, can only be answered by considering the sentence itself where no discount is specified by the sentencer.
Doing the best I can, it seems to me that the sentence is certainly at the upper range of sentences imposed or considered by this Court for such offences over the last five years. For example, in that period, the more serious sentences include:
(1)R v Boyce (ACTSC, Crispin J, SCC 233 of 2006, 20 November 2006, unreported): 2 years imprisonment: convicted at trial, some prior criminal record, assault of taxi driver, by putting rope around his neck and hitting him with an object, victim lost consciousness.
(2)R v Ward [2008] ACTCA 5: 2 years imprisonment: plea of guilty, not long criminal history but previous offence for assault, alcohol a problem, high risk of reoffending, serious domestic violence over a period of time with multiple assaults including bruising, scratches, lump on head and laceration to upper arm and nose, causing hysteria in victim, limited remorse.
(3)R v Gorman (ACTSC, Refshauge J, SCC 319 of 2008, 17 November 2008, unreported): 2 years imprisonment: plea of guilty, bashed victim causing fractures to the skull and blood clot necessitating emergency surgery, long serious criminal history including previous violence offences, significant change in attitude, turning his life around, drug addict but rehabilitated.
(4)R v Roberts (ACTSC, Refshauge J, SCC 126 of 2009, 31 May 2010, unreported): 2 years imprisonment: plea of guilty, alcohol induced attack, kicking of the victim resulting in fracture to her ulna, further assaults, convictions for drink-driving, offender has completed courses while on bail and sought professional assistance, moderate discount for late plea.
I have also had regard to other recent decisions of this Court including R v Riddle [2010] ACTCA 8 and a number where lower sentences were imposed. It is true that there are some earlier decisions I found where longer sentences were imposed, but not in the last ten years.
Doing the best I can, it seems that, having regard to “the collective wisdom of other sentencing judges”, it is difficult to see a discount of any significance for the plea of guilty manifest in the sentence imposed in this case.
A plea of guilty has, of course, a number of aspects: it may indicate acceptance of responsibility, it is usually evidence of remorse, and it facilitates the course of justice saving the community the costs of a trial: Siganto v The Queen (1998) 194 CLR 656 (at 663-4 [22]); Cameron v The Queen (2002) 209 CLR 339 (at 343 [11]-[12]).
Clearly s 35(4) of the Sentencing Act limits the discount that can be given for evidence of remorse and, perhaps, acceptance of responsibility. That a case against an accused is overwhelming justifies that limit, for the accused is then just bowing to the inevitable. There are good policy grounds for that.
Insofar, however, as the plea facilitates the course of justice, it will achieve this no matter how overwhelming the case is against the accused. There is no policy reason to justify the removal of the common law discount on this basis. See the carefully reasoned and logically compelling account of Spigelman CJ in R v Thomson (at 411- 3). Of course, the later the plea is entered the less its value and, if entered at trial, may have no value: R v Riddle (at [28]).
Of course, remorse may be proved in other ways, such as by an apology to a victim, actual steps taken for rehabilitation and so on and this is part of the evidence that goes to make up the ultimate sentence, although not always able to be mathematically calculated: Markarian v The Queen (2005) 228 CLR 357 (at 375 [39]).
Mr Ross indicated an intention to plead guilty to the most serious charge on 6 January 2010, a month after his arrest, a period that included the Christmas shutdown. It was an early plea. It saved the administration of justice a lot: the preparation of a brief, a committal hearing and a trial. Even in the light of s 35(4) of the Sentencing Act, these circumstances entitled recognition in the sentence.
In my view, the sentence imposed does not show that proper account was taken of the effects of the plea of guilty in the sentence, though it must be a moderated discount because of s 35(4).
References to nature of the offence(b)
The offence of assault occasioning actual bodily harm can be committed with one of two mental states (or, in terms of the Criminal Code 2002 (ACT), fault elements): intention or recklessness.
The Statement of Facts was neutral as to this aspect. It merely recounted
The defendant [Mr Ross] then raised his right hand that was holding a beer glass and hit the victim in the face with it.
There is at least some ambiguity as to whether “it” refers to hand or glass.
For the Pre-Sentence Report, Mr Ross was asked about the attack. The Report records:
Mr Ross did not offer any reason for his attack on his partner but stated “I probably didn’t even know I had a glass in my hand.”
Regrettably, neither counsel addressed any submissions to the learned Sentencing Magistrate about the relevant mental state which, of course, is a very relevant factor in determining the culpability of the offence and the offender for it, although the prosecutor did submit that it was “at the upper end ... with respect to...those offences”.
It may have been open to her Honour to have found that Mr Ross intended to use the glass as a weapon but she made no such finding. Accordingly, I have no basis for understanding why the remarks in the Pre-Sentence Report should be rejected.
The prosecutor also relied on a decision of the New South Wales Court of Criminal Appeal, Sayin v The Queen, as noted above (at 45]). That case, however, was concerned with an offence of maliciously inflicting grievous bodily harm, a more serious offence than that which Mr Ross was facing, although, of course, “maliciously” refers to both intention and recklessness: R v Cunningham [1957] 2 QB 396 (at 399-400).
In Sayin v The Queen, it was clear that the glass was there intentionally used as a weapon. This is very relevant on sentence as was noted in Spooner v The Queen [2009] NSWCCA 247, where the court identified the relevant distinctions to be made in sentencing depending upon whether the use of the glass as a weapon was intended or not and whether the injuries resulted from recklessness.
In cases where the use of the glass was, in effect, a reflex response and not intentional, the sentences imposed have been significantly less severe. See, for example, R v Davies [2007] NSWCCA 178.
There is no doubt that “glassing” is a serious offence, whether intentionally (significantly more serious) or recklessly. It is a cruel and vicious offence, especially where the damage done is to the victim’s face, the scars from which will be long obvious and distressingly disfiguring. It is a serious offence which ordinarily will need to be visited by a sentence of imprisonment, mostly served by full-time custody.
Nevertheless, such a general statement does not, of course, relieve the sentencer from constructing a sentence that balances all the necessary purposes of sentencing (s 7 of the Sentencing Act) but is appropriate to the precise circumstances of the offence.
I am satisfied that it is more likely than not that Mr Ross did not intend to use the glass as a weapon. There is nothing in the reasons of the learned Sentencing Magistrate which I can find that explains why, on the material before her, that is not the appropriate conclusion that should be drawn.
In the light of that finding, it seems to me that the sentence is manifestly excessive and should be set aside and a lesser sentence imposed.
Orders
In the event that I decided that the appeal should be upheld, a letter from the victim was tendered. I now admit it into evidence. It shows that she is still devoted to Mr Ross and seeks to maintain their relationship.
Perhaps most significantly, she reports:
... I know he is truly sorry for hurting me and the time he has spent in jail he has not wasted one day doing everything possible to completely turn his life around, every course available in the prison Egan has not only completed but done so with proud achievement...
That shows that the insight and rehabilitative opportunities that were fairly nascent at sentencing have proved to be fulfilled and that he has addressed his offending behaviour.
Taking all the circumstances into account, I am of the clear view that the sentence for the assault occasioning actual bodily harm offence should be reduced to 2 years’ imprisonment. Had he not pleaded guilty, I would have considered that a sentence of 2 years and 3 months would have been appropriate, having regard to the other factors.
Given the good response of Mr Ross to rehabilitation, I also consider that a shorter than usual non-parole period is appropriate. Of course, I anticipate that the Sentence Administration Board will require his use of alcohol to be monitored if he is granted parole and if the rehabilitation is only “skin deep”, he may well have to serve more of the sentence.
I will make orders accordingly.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 19 October 2010
Counsel for the appellant: Mr J Sabharwal
Solicitor for the appellant: A P Jones & Company
Counsel for the respondent: Mr D Sahu Khan
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 28 September 2010
Date of judgment: 19 October 2010
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