Ryan John Mackenzie v The Queen

[2011] NSWCCA 21

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ryan John Mackenzie v R [2011] NSWCCA 21

Hearing dates:

8 February 2011

Decision date:

25 February 2011

Before:

Giles JA, R S Hulme J, Adams J

Decision:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Quash the sentences imposed on CANs 1 and 3.

(4) Sentence the appellant on CANs 1 and 3 and vary the sentence on CANs 2 and 4 as follows -

CAN 1: imprisonment for a fixed term of 1 years and 8 months commencing on 28 February 2009 and expiring on 27 October 2010.

CAN 2: imprisonment for a fixed term of 1 year commencing on 28 February 2010 and to expire on 27 February 2011.

CAN 3: imprisonment for a fixed term of 1 year commencing on 28 August 2010 and to expire on 27 August 2011.

CAN 4: imprisonment for a non-parole period of 8 months to commence on 28 June 2011 and to expire on 28 February 2012 and a balance of term of 1 year and 4 months to expire on 27 June 2013.

Catchwords:

SENTENCE - appeal - manifestly excessive - one sentence beyond range for offence of its seriousness - other beyond range available for middle to low range objective seriousness - need to sentence for each offence before questions of concurrency and accumulation - re-sentencing - these and other sentences should be serially accumulated - same effective result.

Cases Cited:

Black v R [2010] NSWCCA 321;
Georgeopoulos v R [2010] NSWCCA 246;
Giles v Director of Public Prosecutions [2009] NSWCCA 308; (2009) 198 A Crim R 395;
Pearce v The Queen (1998) 194 CLR 610;
R v Hunter [2010] NSWCCA 330;
R v McEvoy [2010] NSWCCA 110;
Sivell v R [2009] NSWCCA 286;
Veen v The Queen (No 2) (1998) 164 CLR 465;

Category:

Principal judgment

Parties:

Ryan John Mackenzie - Appellant
The Crown - Respondent

Representation:

Counsel:
W Hunt - Applicant
J Dwyer - Crown
Solicitors:
S O'Connor - Applicant
S Kavanagh - Solicitor for Public Prosecutions

File Number(s):

CCA 2009/134710

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2010-02-10 00:00:00

Before:

Johnstone DCJ

File Number(s):

2009/134710

Judgment

1. GILES JA: The applicant was charged with four offences arising from the one course of conduct -

CAN 1: Assault occasioning bodily harm ( Crimes Act 1900, s 59(1));

CAN 2: Intimidation with intent to cause to cause fear of physical or mental harm ( Crimes (Domestic and Personal Violence) Act 2007, s 13(1));

CAN 3: Reckless wounding ( Crimes Act , s 35(4)); and

CAN 4: Intimidation with intent to cause fear of physical or mental harm (ibid).

1. On 19 February 2001 the applicant was sentenced on pleas of guilty -

CAN 1: Imprisonment for 2 years and 6 months commencing on 28 February 2009;

CAN 2: Imprisonment for 1 year commencing on 28 February 2009;

CAN 4: Imprisonment for 1 year commencing on 28 August 2009; and

CAN 3: Imprisonment for a non-parole period of 2 years commencing on 28 February 2010 with an additional term of 1 year and 4 months.

1. The effective sentence was imprisonment for a non-parole period of 3 years from February 2009 expiring on 27 February 2012 and a total term of 4 years and 4 months expiring on 27 June 2013. The sentences imposed on CANs 2 and 4 were subsumed within the sentence imposed on CAN 1, and the sentence imposed on CAN 3 was accumulated on that sentence by 1 year.

1. The applicant applies for leave to appeal against the sentences imposed on CANs 1 and 3, on the grounds -

"CAN 1: The sentencing judge erred in respect of the sentence imposed for Count 1 in that:

(a) His Honour erred in finding the facts which constituted count 1; and

(b) the sentence was manifestly excessive.

CAN 3: The sentencing judge erred in respect of the sentence imposed for Count 3 in that it was manifestly excessive."

Facts

1. The applicant had been in a domestic relationship with Ms Jade Butterworth since August 2008. He was living with his mother, Ms Ann Mackenzie.

1. Ms Butterworth had fallen pregnant to the applicant in September 2008, but had had the pregnancy terminated without reference to him. He did not take the news of the termination well.

1. On 20 November 2008 the applicant and Ms Butterworth returned to his mother's home from an outing. A conversation between them on the verandah of the home turned into an argument. The sentencing judge did not explain further, but the applicant told a reporting psychologist that the argument was in relation to the termination.

1. The applicant suddenly struck Ms Butterworth with a closed fist to the right side of her face, and kicked her lower back causing her to fall over. She got back up on her feet whereupon [the applicant] punched her again to the right side of the face. He then struck her with a closed fist to the lips. She responded by punching him on the face, and he again struck her with a closed fist on the lower nose and lip. She suffered immediate pain and bruising, swelling and cuts to her inner lips. This gave rise to CAN 1.

1. The italicised sentences in the preceding paragraph are as stated by the sentencing judge. The statement commencing "whereupon" is the error in finding the facts on which the applicant relied.

1. The applicant then grabbed Ms Butterworth by the hair and dragged her into the living room, where he pushed her onto a lounge on her back. He retrieved a bed sheet, which he spread out on the floor, some adhesive tape and a knife. The knife was about 30 cms long with a sharp blade and a handle in the shape of a gun. The applicant wrapped adhesive tape around Ms Butterworth's head and body. It covered her face, including her nose and mouth, causing breathing difficulties.

1. Ms Mackenzie came into the room. She screamed, "What the hell are you doing?" The applicant said, "The drink's been spiked at the pub". Ms Butterworth began to struggle with the adhesive tape and the applicant used the knife to cut it.

1. Ms Butterworth and Ms Mackenzie tried to calm the applicant down, but he grabbed Ms Butterworth by the neck and placed the tip of the knife next to her left eyeball between eye and nose. He held the knife there for some time and said, "Don't think I won't cut your fucking eye out and slice up your face." His mother attempted to talk some sense into him, but he responded by saying, "Don't think I wouldn't kill the both of you".

1. Ms Mackenzie went into her bedroom, retrieved some personal items and walked out the back door towards her vehicle, intending to leave. The applicant followed her and grabbed one of her arms from behind. She screamed. He covered her mouth and said, "I am sorry, I'm sorry. Come back inside and we'll talk about it. Come back inside."

1. Ms Mackenzie returned to the living room, where she and Ms Butterworth again tried to calm the applicant down. The applicant ignored their requests. He ordered them both to sit on the bed sheet he had earlier spread out on the floor. He said, "I can get friends who will be here in no time with guns and shoot all of you. I'll kill your mother and father too."

1. The applicant went into the kitchen and obtained a roll of plastic that he commenced to unroll onto the top of the sheet on the floor. Ms Mackenzie refused his orders to sit on the plastic, and then to sit on a chair, and ran outside. He followed her and caught her on the lawn. She started to scream. He responded by yelling, "Shut the fuck up", and forcibly attempting to cover her mouth with his hand. Ms Butterworth attempted to assist Ms Mackenzie by jumping on the applicant's back. This enabled Ms Mackenzie to run away.

1. These events gave rise to CAN 2 (Ms Butterworth) and CAN 4 (Ms Mackenzie.)

1. Ms Butterworth then let the applicant go and attempted to get away from him. He turned and stabbed her in the groin area. This gave rise to CAN 3. He chased after his mother but could not find her. He left the scene.

1. Ms Butterworth was taken to hospital, and was found to have a puncture type wound about 1 cm in length described as "superficial to the left upper thigh".

Ground 1(a)

1. The sentencing judge's findings were generally in accordance with a statement of agreed facts. However, the italicised statement that the applicant punched Ms Butterworth a second time to the right side of the face was incorrect. According to the statement of agreed facts, Ms Butterworth got back on her feet and punched the applicant to the right side of the face.

1. The applicant submitted that the error significantly overstated the objective criminality of his acts in relation to the offence the subject of CAN 1. The Crown submitted that the error was of little or no consequence, when the assault upon Ms Butterworth was extensive and on any view involved more than one punch, and did not materially affect the sentencing.

1. The sentencing judge described the offences globally as "objectively serious". Specifically as to CAN 1, he said that the assault was "a prolonged attack and I am satisfied that the offence fell within the middle range of objective seriousness".

1. This expression of seriousness has been said to be inappropriate for an offence which did not attract a standard non-parole period, see for example Sivell v R [2009] NSWCCA 286 at [2]-[5] per McLellan CJ at CL; Georgeopoulos v R [2010] NSWCCA 246 at [30]-[33] per Howie J; R v Hunter [2010] NSWCCA 330 at [34]-[35] per Adams J; Black v R [2010] NSWCCA 321. The assault was serious and involved significant criminality, although worse assaults come before the courts.

1. In my opinion, no lesser assessment was open on the basis that the punch attributed to the applicant was a punch by Ms Butterworth, nor would the seriousness of the applicant's conduct within the range be materially altered by that correction to the facts found. The applicant first struck and kicked Ms Butterworth, and following the punch which should have been attributed to Ms Butterworth punched her again, and then again in response to another punch from Ms Butterworth. The bodily harm occasioned to Ms Butterworth would not be materially lessened by excluding the one punch, nor would the criminality of the applicant's conduct in the physical violence directed to the person with whom he was in a relationship.

Ground 1(b)

1. The maximum sentence for the assault offence is imprisonment for 5 years. There is no standard non-parole period.

1. Shortly before the offence the applicant had been placed on a three year bond for possession of a prohibited weapon (described by the sentencing judge as a prohibited firearm, but it seems a capsicum spray). The sentencing judge took into account that the applicant was on conditional liberty at the time, as an aggravating factor "of some significance", and also that the offences occurred at Ms Mackenzie's home, as a factor to which he had "some regard". He referred to the need for powerful denunciation of domestic violence. He noted that the applicant "has a serious criminal record such as to demonstrate that these offences were not an uncharacteristic aberration and that they manifest a continuing attitude of disobedience to the law", giving weight to retribution, deterrence and the protection of society ( Veen v The Queen (No 2) (1998) 164 CLR 465). His Honour did not elaborate, but the record included firearms offences and offences of assault occasioning actual bodily harm and malicious infliction of grievous bodily harm.

1. His Honour regarded the plea of guilty as a mitigating feature, and said that he gave "the usual utilitarian discount". The discount was not quantified, but it was common ground that it was 25 per cent. He felt unable to conclude that the applicant was unlikely to re-offend, and said there was "some positive material, but it still remains more of a hope than an aspiration".

1. The applicant was aged 28. His childhood had been in a dysfunctional family, and he had had sporadic employment as a young adult. According to the psychologist's report, he had a significant level of residual anger that became physical in form at times of particular stress or when affected by substances, and demonstrated excessive emotional and behavioural fluctuations and an unstable pattern of relationships. He had a history of substance abuse, but since his arrest in February 2009 had been clean. The psychologist found a mixed disorder of mood and anxiety.

1. The applicant's sister was prepared to take him into her care after he left gaol, and for that reason, in association with the psychologist's recommendation of involvement in treatment programmes and release under intensive supervision with treatment and assistance in return to the workforce, the judge found special circumstances.

1. The applicant submitted that, grossing up the sentence of imprisonment for 2 years and 6 months on the basis that it equated with a non-parole period ( Giles v Director of Public Prosecutions [2009] NSWCCA 308; (2009) 198 A Crim R 395 at [28]), the notional total term was 3 years and 4 months after the discount of 25 per cent, and the notional total term prior to the discount was 4 years and 5.3 months. He submitted that this was manifestly excessive for conduct found to fall within the mid range of objective seriousness when the maximum sentence for the offence was imprisonment for 5 years.

1. The Crown accepted that the sentence "may appear stern, when viewed against the maximum sentence and the discount for the plea", but submitted that it was not outside a proper range considering the seriousness and prolonged nature of the assault. It was submitted also that the sentence should not be considered in isolation, that the offence of assault occasioning actual bodily harm was part of an entire incident representing serious criminal behaviour, and that the effective sentence on CAN 1 was only 12 months by reason of the sentence on CAN 3 and was itself concurrent with the sentences on CANs 2 and 4.

1. The last-mentioned submission was contrary to the principle in Pearce v The Queen (1998) 194 CLR 610 at 624 per McHugh, Hayne and Callinan JJ, that "[a] judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality". The sentencing judge did not reduce any of the individual sentences on a totality basis. The sentence on CAN 1 must be considered in isolation; concurrency and accumulation are a different matter.

1. The applicant's submissions continued the sentencing judge's manner of expression of the seriousness of the assault. The Crown did not contest either the assessment of objective seriousness or its expression. The maximum sentence is not the basis for a straight line measure of a sentence according to criminality, although it is an important yardstick together with other relevant factors. The criminality was serious and there were aggravating factors and particularly the need for denunciation and deterrence, but in my opinion a sentence reflecting an undiscounted sentence not far short of the maximum sentence was beyond the range properly available to the sentencing judge.

Ground 2

1. The maximum penalty for the reckless wounding offence is 7 years imprisonment. There is a standard non-parole period of 3 years.

1. The sentencing judge described the reckless wounding as "a single attack involving a small superficial wound", and said that it fell in the middle to low range of objective seriousness. He regarded it as aggravated by use of the knife. I have referred to other considerations to which his Honour had regard in connection with ground 1(b).

1. The applicant submitted that adding back the 25 per cent discount brought a notional non-parole period of 2 years and 8 months, and that the same exercise brought a notional total term of 4 years and 3.3 months; further, that but for the finding of special circumstances the notional non-parole period would have been 3 years and 4 months. He submitted that regard to both the maximum penalty and the guidepost standard non-parole period demonstrated that the sentence was manifestly excessive for conduct assessed as in the middle to low range of objective seriousness.

1. The Crown submitted that the effective non-parole period for all four offences was three years, equal to the standard non-parole period, and that a shorter non-parole period for the combined offences would have been manifestly inadequate. Again, this was contrary to the need to fix an appropriate sentence for the offence the subject of CAN 3.

1. It was submitted that the mathematical approach propounded by the applicant was inappropriate, and that what was required was that the sentencing judge take all relevant considerations into account, which had been done. It is correct that sentencing is not a mathematical exercise, but the mathematics illuminated the severity of the sentencing as related to the two parameters. The Crown's submission left it open that, all relevant considerations having been taken into account, the sentence was nonetheless not within the range properly available to the sentencing judge.

1. The assessment of the middle to low range of objective seriousness was not particularly specific, see R v McEvoy [2010] NSWCCA 110 at [75]-[88]; I take the sentencing judge to have meant more than slightly below the mid-range. The Crown did not dispute the assessment. Again, in my opinion, even having regard to the aggravating factors and the need for denunciation and deterrence, the sentence at which his Honour arrived was not within the range properly available to him for conduct significantly below the notional mid-range offence and where the maximum sentence was 7 years imprisonment.

Re-sentencing

1. It is necessary to re-sentence the applicant, including readdressing concurrency and accumulation. It was accepted that the Court could vary the sentencing on CANs 2 and 4 in that respect, see Criminal Appeal Act 1912, s 7(1A) if not apart from that provision. I have had regard to the applicant's affidavit, which adds aspiration to perhaps increased hope for a positive future.

1. The Crown submitted, referring to s 6(3) of the Criminal Appeal Act , that if leave was granted the appeal should be dismissed because some other sentence was not warranted in law. Other sentences on CANs 1 and 3 are warranted in law, and s 6(3) does not apply to the effective sentence resulting from concurrency and accumulation. It may nonetheless be that, on resentencing including readdressing concurrency and accumulation, the Court considers that no lesser effective sentence is warranted. In my opinion, even with regard to the applicant's affidavit that is so in the present case.

1. The sentencing judge appeared to accept the submission that accumulation should be limited because the events had occurred at one place within a limited time span, but considered that there should be partial accumulation to reflect that there were two victims and the "distinct additional criminality" in the reckless wounding as an offence additional to and separate from the earlier assault.

1. However, the sentencing then scarcely recognised the two victims, and did not recognize the significant separate criminality in the intimidation offences over the assault offence, when the sentences on both CAN 2 and CAN 4 were subsumed within the sentence on CAN 1. The sentences for the intimidation offences, for which the maximum penalty is 5 years imprisonment with no standard non-parole period, could be seen as lenient in themselves, but they are not open to be varied and that must be put aside. The intimidation offences were found by the sentencing judge to "[fall] within the middle range of objective seriousness" (again an expression of their seriousness upon which I have commented), and must have been terrifying to Ms Butterworth and Ms Mackenzie; they carried their own criminality additional to the assault offence and the reckless wounding offence which should have been recognised by partial accumulation with the other sentences. There should be sequential partial accumulation of all sentences.

1. Maintaining a finding of special circumstances, to give effect to it the non-parole period for the sentence on CAN 3 should be reduced from the period which would otherwise have been appropriate.

1. I propose the orders -

(1)   Grant leave to appeal.

(2)   Appeal allowed.

(3)   Quash the sentences imposed on CANs 1 and 3.

(4)   Sentence the appellant on CANs 1 and 3 and vary the sentence on CANs 2 and 4 as follows -

CAN 1: imprisonment for a fixed term of 1 years and 8 months commencing on 28 February 2009 and expiring on 27 October 2010.

CAN 2: imprisonment for a fixed term of 1 year commencing on 28 February 2010 and to expire on 27 February 2011.

CAN 3: imprisonment for a fixed term of 1 year commencing on 28 August 2010 and to expire on 27 August 2011.

CAN 4: imprisonment for a non-parole period of 8 months to commence on 28 June 2011 and to expire on 28 February 2012 and a balance of term of 1 year and 4 months to expire on 27 June 2013.

The appellant will be eligible for release on parole on 27 February 2012. It will be seen that this is the same effective sentence as before.

1. RS HULME J: I agree with Giles JA.

1. ADAMS J: I agree with Giles JA.

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