Rushby v The Queen
[2006] NSWCCA 25
•28 February 2006
CITATION: Rushby v R [2006] NSWCCA 25 HEARING DATE(S): 6 February 2006
JUDGMENT DATE:
28 February 2006JUDGMENT OF: Beazley JA at 1; Simpson J at 2; Rothman J at 38 DECISION: (i) application for leave to appeal granted; (ii) appeal in respect of the sentence imposed on the offence of malicious wounding allowed to the extent that the sentence is specified to commence on 17 April 2004. The non-parole period would expire on 16 April 2007 and the balance of term on 16 April 2009. CATCHWORDS: application for leave to appeal against severity of sentence - malicious wounding - assault occasioning actual bodily harm - pleas of guilty - whether sentences in total are manifestly excessive - whether offence justified a sentence near the statutory maximum - mental and emotional disorder and the sentencing process - sentencing disparities - concurrence of sentences - accumulation of sentences - aggregate of sentences manifestly excessive LEGISLATION CITED: Crimes Act 1900, s35(1), s59(1)
Crimes (Sentencing Procedure) Act 1999, s44(2)CASES CITED: Johnson v The Queen [2004] HCA 15; 78 ALRJ 616
Pearce v The Queen [1988] HCA 57; 194 CLR 610
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Thomson; R v Houlton [2000] NSWCCA 309;49 NSWLR 383PARTIES: Bradley Rushby - Applicant
Crown - RespondentFILE NUMBER(S): CCA 2005/1643 COUNSEL: R Burgess - Applicant
G Rowling - RespondentSOLICITORS: S O'Connor - Applicant
S Kavanagh - RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0113 LOWER COURT JUDICIAL OFFICER: Latham DCJ
2005/1643
Tuesay 28 February 2006BEAZLEY JA
SIMPSON J
ROTHMAN J
1 BEAZLEY JA: I agree with Simpson J.
2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court following his pleas of guilty to two counts, one of malicious wounding, and one of assault occasioning actual bodily harm. Pursuant to s35(1) of the Crimes Act 1900, the first charge carries a maximum penalty of imprisonment for seven years; the second, brought under s59(1) of the Crimes Act, carries a maximum penalty of imprisonment for five years.
3 On the assault charge the applicant was sentenced to imprisonment for three years with a non-parole period of one year, commencing on 17 April 2004; on the malicious wounding charge he was sentenced to imprisonment for five years with a non-parole period of three years. This sentence was wholly accumulated upon the one-year non-parole period applicable to the sentence on the assault charge, thus commencing on 17 April 2005. The total effective sentence was therefore of imprisonment for six years with a non-parole period of four years. In structuring the sentences as she did, her Honour found that special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) existed, justifying departure from the ratio which would otherwise have been applicable. The applicant contends that the total of the sentences is manifestly excessive.
facts
4 Both offences were committed in the evening of 26 December 2003 at a private residence in Singleton, NSW.
5 The applicant believed that a man named Wayne Tallar had assaulted his (the applicant’s) son, Jason, a week earlier. He went to an address in Singleton which he believed to be occupied by Wayne Tallar. He rang the doorbell and the door was opened by a male person whom the applicant assumed to be Wayne Tallar. It was not. It was the complainant, Cecil Kennedy, whose sister Rebecca was the girlfriend of Wayne Tallar’s brother Justin. The house where the offences took place was occupied by Rebecca Kennedy but, at the time the applicant visited, Cecil Kennedy was “house sitting” for his sister.
6 The applicant accused Mr Kennedy of having assaulted his son Jason. Mr Kennedy denied any knowledge of the assault. The applicant then punched Mr Kennedy in the face with a closed fist. He produced a knife with a 20 cm blade. Mr Kennedy attempted to close the door but the applicant prevented him from doing so. He told Mr Kennedy to open the door, threatening to stab him. The knife cut Mr Kennedy in the top right side of his head. Mr Kennedy was bleeding and immediately felt pain. The applicant forced his way into the house, again threatening Mr Kennedy. The two began to wrestle. Mr Kennedy grabbed the applicant’s right hand, in which he held the knife and manoeuvred the applicant towards the door. Mr Kennedy ran out onto the veranda, but slipped and fell. As he rose, the applicant took hold of him and punched him and kneed him in the back. Mr Kennedy ran down the driveway. The applicant left the premises in the motor vehicle in which he had arrived.
7 The attack with the knife constituted the first offence, of malicious wounding. The punching and kneeing constituted the second, of assault occasioning actual bodily harm.
8 Mr Kennedy suffered pain in the face, head and back. Photographs show cuts and lacerations to his face and what appears to be a significant wound around the right eye and at the top of the forehead. This was said to be 10 cm in length and required 11 stitches. Mr Kennedy also suffered abrasions, bleeding, bruising and swelling to his right eye, bleeding, abrasion and swelling to his lips, bruising to his back and abrasions on his feet and knees.
9 A factual issue arose for determination by the sentencing judge. The applicant denied having had possession of a knife or of any weapon. Both he and Mr Kennedy gave evidence on this issue. The sentencing judge was satisfied beyond reasonable doubt that he had had, and had used, the knife as described by Mr Kennedy. There is no challenge to that finding of fact, which was clearly open on the evidence.
subjective circumstances
10 The applicant gave evidence in the sentencing proceedings. Also in evidence was a psychiatric report prepared by Dr Samuels. These disclosed the following.
11 The applicant was born on 11 November 1967. He was 36 years of age at the time of the offences. He has a criminal history that began in 1981, when he was 13 years of age. The record contains a large number of offences, for the majority of which the applicant was dealt with in the Local Court. It includes a number of offences of assault, as well as offences of dishonesty. He has served a number of terms of imprisonment, both in NSW and Queensland, and has, on two occasions, served out terms as a result of the revocation of parole orders. He was on parole at the time of the commission of these offences.
12 Dr Samuels had access to Corrections Health notes. He was able to say that the applicant had suffered depression for at least five years, and had a history of panic attacks. As long ago as 1987 he slashed his wrists, contemplated suicide in 2001, and overdosed on Valium in 2002.
13 In 1992 he suffered a back injury and electrocution. At the age of 19 (in about 1986) he suffered a head injury when bashed and spent some time in intensive care.
14 He had a dysfunctional adolescence with delayed milestones. He spent some time in institutional care. He had consumed various drugs, both legal and illegal. The legal drugs included those prescribed for chronic depression; the illegal drugs included cannabis (at least four days per week), “stimulants” (three days per week) and opiates (daily). He began using amphetamines and heroin at the age of 14 or 15. Dr Samuels thought he suffered from a personality disorder with mood symptoms and significant substance abuse problems.
15 The applicant was married in about 1986 and has six children from that marriage. He has been separated from his wife since about 2002 and was not, at the time of sentencing, in any other relationship. He had been living in motels financed by his employer.
the remarks on sentence
16 The sentencing judge dealt conventionally with the objective circumstances of the offences, and with the applicant’s subjective circumstances. She found that his prospects of rehabilitation are sound if he addresses his substance abuse issues and underlying depression. She did this while recognising that Dr Samuels had expressed some doubts about this. She considered that there were indications that his present circumstances may provide the impetus for real change, even given the applicant’s failure in the past to take advantage of counselling and rehabilitation services made available to him.
17 She adverted to information she had been given that the applicant had been on strict protection because of assaults upon him by other inmates who perceived him as vulnerable, but considered that his status after sentence was “sufficiently indeterminate to preclude further consideration.” She did take into account that he had been in strict protection since 17 April 2004.
18 She noted a concession made on behalf of the Crown that the pleas were entered at the first available opportunity, and specified, pursuant to the decision of this Court in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, a discount of 15%.
19 She thus proceeded to impose the sentences I have already mentioned.
the application for leave to appeal
20 The only ground for the application for leave to appeal was that the sentences (in total) are manifestly excessive. They were said to be so in the light of:
- “(a) the objective seriousness of the offences,
(b) the applicant’s plea of guilty at the earliest opportunity,
(c) the fact that he had served 8 months of his sentence in strict protection
(d) his subjective case, in particular his chronic depression,
(e) his prospects of rehabilitation.”
21 Reliance was placed upon the circumstance that the two offences arose from essentially the same incident, the assault occurring immediately before and after the wounding and not resulting in any substantial injury. Therefore, it was argued, it was inappropriate to accumulate the two sentences. Alternatively, if the sentences were to be wholly or partially accumulated, it was argued, then an adjustment should have been made to the length of each sentence to take into account totality. Reference was made to Pearce v The Queen [1988] HCA 57; 194 CLR 610; Johnson v The Queen [2004] HCA 15; 78 ALJR 616.
22 Counsel pointed out that, when the 15% discount for the utilitarian value of the plea of guilty at the earliest opportunity is factored in, the starting point of the effective total sentence is very close to the maximum penalty of seven years provided for the offence of malicious wounding. In fact, when 15% is factored in, the starting point for the total sentence is a little more than seven and a half years – in excess of that statutory maximum. However, that is not the correct approach. It is not correct to set the total of the sentences imposed in respect of the offence against the statutory maximum sentence prescribed in respect of one only of those offences. The head sentence imposed in respect of the offence of malicious wounding, after the 15% discount, was five years; that means that the starting point was about five years and nine and a half months.
23 In the context of this submission (as it was put), counsel also argued that the malicious wounding was not in the worst category of cases of its kind and did not call for a penalty so close to the maximum available. That submission loses some, but not all, of its force when the correct approach, as I have identified it above, is taken.
24 Counsel then argued that insufficient attention was paid to the part played by the applicant’s depressive condition, complicated by his substance abuse, upon the assessment of the applicant’s culpability.
25 This, if so, is hardly surprising; the applicant’s case was not put to her Honour on that basis.
26 The circumstances, and the manner, in which mental or emotional disorder may affect the sentencing process has been the subject of a number of decisions of this Court: I referred to them in R v Fahda [1999] NSWCCA 267, unreported, 31 August 1999. In R v Engert (1995) 84 A Crim R 67, Gleeson CJ pointed out that relevant sentencing considerations such as mental illness might permit a lesser emphasis on one sentencing objective (for example, general deterrence), but dictate a greater emphasis in respect of another sentencing objective (for example, the protection of the public).
27 In my opinion the applicant’s mental condition was not such that it should have had a significant bearing on the sentencing decision. Obviously, this was a case in which general deterrence was important, and its importance was not reduced by the applicant’s mental condition. Nor did it, in my opinion, significantly reduce the applicant’s culpability for the offences.
28 Finally, reference was made to statistics provided by the Judicial Commission. These have to be treated with the usual caution, but also with the additional caution that the applicant was being sentenced for two offences committed in conjunction with one another. The statistics quoted are statistics relevant to offences of malicious wounding, and offences of assault occasioning actual bodily harm, but not of the two dealt with in conjunction.
29 Even with that in mind, the statistics are persuasive that these sentences – or the aggregate sentence – were very high for offences of the character here in question.
30 Let it be recognised that the applicant had a lengthy criminal history; as her Honour noted, while there were a number of offences of assault, there was nothing more serious than common assault. That is not to underplay the seriousness of the record. The seriousness of the malicious wounding must also be examined. It is true that this Court is familiar with instances of wounding which are more serious than the wound occasioned to Mr Kennedy. (As to this, there was no medical evidence tendered.) But it is to be remembered that an offence resulting in a more serious wounding than that suffered by Mr Kennedy may also have resulted in a charge more serious than one brought under s35(1)(a).
31 Even having all of that in mind, I have been persuaded that the total sentence was above the top of the available range.
32 While questions of concurrence or accumulation are peculiarly a discretionary matter for the sentencing judge, it is common, where two offences are committed as part of the same incident, for concurrent sentences to be imposed: see R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66. I do not find that her Honour erred in accumulating the sentences; but I am of the view that the effect of the accumulation was to produce a total sentence that was manifestly excessive in the circumstances, and exceeded that which properly represented the totality of the applicant’s criminality. If, as she was fully entitled to do, her Honour thought that the offence called for or warranted some or total accumulation, then that, in turn, called for some adjustment of the sentences imposed in respect of the individual offences.
33 I have come to the view that the total accumulation of the sentences resulted in a disproportionate aggregate sentence. The simplest course to achieve the correct result is to adjust the commencement date of the second sentence, and make the two sentences concurrent. I would therefore re-sentence, but only by adjusting the commencement date of the sentence imposed in relation to the malicious wounding charge, so as to make both sentences concurrent, commencing on 17 April 2004.
34 Against the possibility that the Court might re-sentence the applicant, evidence was received in the form of affidavits affirmed by the applicant’s solicitor, and sworn by himself.
35 These show that the applicant has been segregated for his own protection since his incarceration. He has been receiving some psychiatric treatment, including medication, and two consultations with a psychiatrist. His protective custody status limits his access to courses or programmes otherwise available to him. He has employment in the prison in which he is presently held. He has had no infringements of prison rules since sentencing.
36 This information generally confirms what was before the sentencing judge, but does not make any dramatic or relevant alteration in the relevant considerations. I adhere to the orders I earlier proposed.
37 The orders I propose are:
(ii) appeal in respect of the sentence imposed on the offence of malicious wounding allowed to the extent that the sentence is specified to commence on 17 April 2004. The non-parole period would expire on 16 April 2007 and the balance of term on 16 April 2009.
(i) application for leave to appeal granted;
38 ROTHMAN J: I agree with Simpson J.
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