Udovcic v The Queen

[2019] NSWCCA 196

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Udovcic v R [2019] NSWCCA 196
Hearing dates:	15 July 2019
Date of orders:	21 August 2019
Decision date:	21 August 2019
Before:	Payne JA at [1] Davies J at [2] Hidden AJ at [3]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – assault occasioning actual bodily harm in company – wounding with intent to cause grievous bodily harm – aggregate sentence - whether applicant’s representation in the District Court was incompetent – whether discount for late pleas of guilty inadequate - whether sentence excessive
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	De Wet v R [2015] NSWCCA 23 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Porter v R [2015] NSWCCA 59 R v AB [2011] NSWCCA 229 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Hookey [2018] NSWCCA 147 R v Nicholson [2010] NSWCCA 80 R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Birks (1990) 19 NSWLR 677 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Tsiakas v R [2015] NSWCCA 187
Category:	Principal judgment
Parties:	Luke Udovcic (Applicant) Regina (Crown)
Representation:	Counsel: S Stanton (Applicant) A McGrath (Crown)   Solicitors: T Carter (Applicant) Solicitor for Public Prosecutions
File Number(s):	2016/195878
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: N/A Date of Decision: 5 June 2018 Before: Syme DCJ File Number(s): 2016/195878

Judgment

1. PAYNE JA: I agree with Hidden AJ.

2. DAVIES J: I agree with Hidden AJ.

3. HIDDEN AJ: The applicant, Luke Udovcic, pleaded guilty in the District Court to an indictment containing the following two counts:

1. assault occasioning actual bodily harm in company, an offence under s 59(2) of the Crimes Act 1900 (NSW), carrying a maximum sentence of imprisonment for 7 years;

2. wounding with intent to cause grievous bodily harm, an offence under s 33(1)(a) of the Crimes Act, carrying a maximum sentence of imprisonment for 25 years and a standard non-parole period of 7 years.

4. For the two counts, he was sentenced to an aggregate term of imprisonment for 10 years with a non-parole period of 7 years and 6 months. The indicative sentences were:

1. on the first count, 3 years and 1 month with a non-parole period of 2 years and 3 months;

2. on the second count, 9 years with a non-parole period of 6 years and 9 months.

5. He seeks leave to appeal against the sentence.

Facts

6. The offences were committed in the course of a home invasion perpetrated by the applicant, along with one Anthony Toutounji and a third man who remains unidentified, at the residence of the victim in the first count, Adam Banham, in Burwood. At the time, Mr Matthew Jenkinson and another man, Shane Colligan, were staying with Mr Banham as house guests. Mr Banham was known to the applicant and Mr Toutounji, and apparently the applicant was known to Mr Jenkinson.

7. The home invasion occurred at about 11pm on 31 August 2015. The applicant was armed with a baseball bat, Mr Toutounji had knuckle dusters, and the third man later produced a knife. The applicant was wearing a balaclava but the other two men’s faces were not covered. They approached the house and knocked on the front door. Mr Banham unlatched the door, it was forced open and the three offenders entered the house.

8. The three of them confronted Mr Banham. Mr Toutounji hit him twice in the face and temple with the knuckle dusters. Mr Banham said, “What the hell are you doing?”, to which Mr Toutounji responded, “Just shut the fuck up”. When Mr Banham grabbed Mr Toutounji’s jacket, the third man held a knife to his face and said, “Let go of him”. Mr Toutounji hit Mr Banham again to the temple and dragged him towards the lounge room.

9. Mr Toutounji gave directions to check the bedrooms, and a search was made for some items. When they were not found, the applicant approached Mr Jenkinson and hit him a number of times with the baseball bat. Mr Jenkinson tried unsuccessfully to block the blows. He fell to the ground and the applicant continued to hit him with the bat. In all, he struck Mr Jenkinson some 21 times.

10. The applicant then put his arms in the air and said, “No more, no more. I’m not doing this anymore”. Mr Jenkinson told him to “fuck off”, and he walked away. Mr Jenkinson recognised the applicant’s eyes and his voice.

11. The unknown man held Mr Banham in a head lock while Mr Toutounji punched him in the stomach, yelling at him. Mr Jenkinson went to Mr Banham’s aid. Mr Toutounji reached into the sink and took out a carving knife. He also held a second knife. He swung the knives at Mr Jenkinson, who fell over. He swung his arms and legs to try and protect himself, and the knives struck him in his arms and feet. Mr Toutounji stabbed him several times, including to the lower left buttocks area, and he started to lose blood.

12. While Mr Toutounji was swinging the knives at Mr Jenkinson, the applicant joined them and started hitting him with the baseball bat.

13. Mr Banham felt a hit to his head. He engaged in a struggle with the applicant. They fell to the floor and he head butted the applicant. The applicant removed the balaclava, and Mr Banham could see his face. The applicant said, “Alright, alright, alright. You let go and I will let go”. Mr Toutounji said, “Let’s get out of here”, and the three offenders left.

14. As I have said, Mr Banham was the victim of the assault occasioning actual bodily harm in company (count 1). Mr Jenkinson was the victim of the wounding with intent to cause grievous bodily harm (count 2). Both of them were treated at Royal Price Alfred Hospital. Mr Banham suffered a laceration to his right upper arm, breaching the dermis and epidermis, and tenderness to the right shoulder and upper middle back. He was discharged from the hospital the following day after declining further treatment.

15. Mr Jenkinson’s injuries were more serious. There were a number of incisions in his left upper chest and left buttock. There were lacerations to various parts of his body: the left buttock area, the right elbow, the lower abdominal area, the pelvic area and the right chin. There was a comminuted fracture of a finger on his left hand. He had a lump on his right temple, and there was tenderness, bruising and pain to his abdomen, right arm and both inner thighs.

16. On admission to hospital, Mr Jenkinson was bleeding profusely and was hypotensive. He had an accelerated heart rate. Bleeding was detected in his iliac arteries and there was blood between the sacrum and the rectum. Rectal bleeding was stabilised by a transfusion. A portion of his colon and rectum was collapsed in keeping with “shock bowel”. He underwent surgery on 1 September 2015, a skin graft was performed on his right leg, and he was discharged from hospital seven days later.

17. The applicant was arrested on 28 June 2016. In an electronically recorded interview with police he denied the offences. He said that he had not been to the Burwood address, and he claimed that he did not know who lived there and did not know Mr Banham.

18. The motive for the offences does not emerge from the statement of facts, a matter which the sentencing judge raised in the course of submissions. Counsel for the applicant (who did not appear in this Court) said no more than that, on her instructions, there was an expectation that methylamphetamine (ice) would be found at the premises. In her reasons for sentence, her Honour noted that this was not conceded by Mr Toutounji and was not known by the Crown.

19. Her Honour described the agreed facts as “very serious and alarming”. She saw Mr Toutounji as “more in charge” than the other two offenders, but described the involvement of all three as “on a par with each other”. She noted that all three used weapons, and that the offences occurred in the home of Mr Banham “and the place where his two house guests should otherwise have expected to be safe”. She found the home invasion to have been planned. Her Honour assessed the offence of assault occasioning actual bodily harm in company to be approximately at the mid-range of objective gravity, and the offence of wounding with intent to cause grievous bodily harm as slightly above that mid-range.

Subjective case

20. The applicant was 28 years old at the time of the offences, and is now 32. He has a minor criminal history, comprising mainly driving offences. Upon his arrest for the present offences, he was in custody for one day prior to being released on bail. The present sentence, then, is his first experience of imprisonment. There was a conviction subsequent to the present offences for a driving matter, for which he was fined. The sentencing judge said that she would take that into account when considering his prospects of rehabilitation.

21. Otherwise, there was limited information before the sentencing judge about his subjective circumstances. No evidence, oral or documentary, was led. This approach will be examined when dealing with one of the grounds of the application.

22. Her Honour was informed from the bar table, and accepted, that the applicant was in a relationship and he and his partner had a one year old child. His partner also believed that she may be pregnant. Her Honour described that information as “concerning”, but noted that it was not presented to suggest that there would be any form of hardship suffered by the family by the applicant’s “inevitable incarceration”. Her Honour was also told that the applicant had had a drug problem which had ceased when he formed his relationship, but observed that there was no evidence to support this.

Procedural history

23. Before turning to the grounds of the application, it is necessary to sketch the procedural history of the matter.

24. From the day of the applicant’s arrest, 28 June 2016, until 13 March 2018, the applicant was represented by Mr Michael Siderowitz, solicitor. Mr Bruce Snelling of counsel was briefed in the matter. The applicant was committed for trial on both charges on 9 November 2016. His trial was listed to commence on 14 August 2017. However, on 16 August, he pleaded guilty to both charges. (While it is not entirely clear, I take it that the trial had not commenced at that stage.) Mr Toutounji had pleaded guilty in the Local Court.

25. The statement of facts before her Honour had been prepared by the Crown at that time, but they were disputed by the applicant and Mr Toutounji. The matter was adjourned for a disputed facts hearing on 22 March 2018. At that time Mr Siderowitz was no longer acting for the applicant, and he was unrepresented. The matter was adjourned to 27 March, by which time the applicant had approached Ms Alana Doyle, solicitor, who had submitted an application for legal aid on his behalf. There was a further adjournment for mention on 15 May 2018, and by then there had been a grant of legal aid and Ms Doyle had been assigned to represent the applicant. The disputed facts hearing was fixed for 5 June 2018.

26. On that day the applicant was represented by Ms Sarah Carr of counsel, instructed by Ms Doyle. That morning, the applicant gave instructions to accept the statement of facts proposed by the Crown. Mr Toutounji gave similar instructions to his solicitor, so that the disputed facts hearing did not proceed. The two complainants and a witness (presumably Mr Colligan, the other house guest) attended the court for the purpose of that hearing. Of the three of them, two had come from Queensland.

27. It was against this background that her Honour allowed a discount of “less than 5 per cent” only for the applicant’s pleas of guilty. That discount was to be reflected in the indicative sentences, rounded down favourably to the applicant. While her Honour did not specify her calculations, it would seem that the indicative sentence of 3 years and 1 month for the assault occasioning actual bodily harm was from a starting point of 3 years and 3 months, and the indicative sentence of 9 years for the wounding with intent was from a starting point of 9 years and 6 months.

The application

28. The application was brought on five grounds. At the hearing, however, two grounds were not pressed: ground 1, that the indicative sentence for the assault occasioning actual bodily harm is manifestly excessive; and ground 4, complaining of a denial of procedural fairness by her Honour in relation to her declining to find special circumstances. The second ground was that the indicative sentence in respect of the wounding with intent is manifestly excessive. The third ground asserts that the discount of “less than 5 per cent” for the pleas of guilty was inadequate. The fifth ground complains of what is said to be the incompetence of counsel and the solicitor who conducted the matter.

29. It is convenient to deal with that fifth ground at the outset. It is in the following terms:

1. A miscarriage of justice occurs (sic) as a result of the incompetence of counsel and the solicitor instructed to appear for the Applicant in that they either singularly or collectively failed:

(a)   to put before the Court a letter of contrition and remorse prepared by the Applicant and given to his solicitors;

(b)   failed to acknowledge and/or utilise, or if not, give reasons for the supply of materials by way of comparative sentences and statistics as to sentencing in like offences which were supplied by the Applicant and his wife in numerous emails;

(c)   failed to enquire of the Applicant whether he wanted and/or gave him the option of having a pre-sentence report from Community Corrections and/or failed to obtain from him circumstances concerning hardship to his family and other subjective matters including character referees;

(d)   put nothing by way of written submissions or for that matter anything by way of oral submissions as to sentencing comparatives or matters of substance of and concerning the Applicant both subjectively and objectively.

30. For the purpose of this ground, counsel for the applicant, Mr Stanton, read affidavits of the applicant and of his partner, Ms Talia Brown-Newland. Both of them were cross-examined briefly by the Crown prosecutor. The Crown read affidavits of the applicant’s earlier legal representatives, Mr Siderowitz and Mr Snelling, and his representatives in the sentence proceedings, Ms Doyle and Ms Carr. Mr Stanton did not require any of those deponents to be present for cross-examination. It is convenient to deal with the evidence by reference to the four matters complained of under this ground.

(a) The letter of remorse

31. Annexure “B” to the affidavit of Ms Brown-Newland is a copy of a handwritten document, dated 8 January 2017, which amounts to a form of apology by the applicant to the complainants and Mr Colligan for his actions on the night in question. It asserts that there is “no excuse for the role” which he played that night and that there is nothing he could now “say or do to take back the pain inflicted”. It asserts that since the night in question he has been ashamed of his actions and has tried to be “an example for society instead of continuing down the path I was heading”. It discloses that he is to be “a first time dad”. It acknowledges that he had “no right to cause harm to any of you gentlemen”. It adds that he cannot “say enough how sorry” he is to them all, that there is no excuse for his actions, that he must accept the consequences, and “prove to everyone that it is not who I am or who I want to be”.

32. It emerged in oral evidence that Ms Brown-Newland had written the document and, while the applicant’s name appears at the end of it, it does not bear his signature. Ms Brown-Newland said, however, that he had dictated it.

33. In his affidavit the applicant deposed that the letter was “an indication from myself that I was not challenging the matter other than certain facts and circumstances which I wanted to dispute”. He also deposed that he had given the letter to his “lawyers” on or about January 2017, and understood that it would be “put before the court”. Ms Brown-Newland also deposed that the letter had been given to “both solicitors”. She and the applicant complained that it had not in fact been presented at the sentence proceedings.

34. By January 2017, when the letter is said to have been written, the applicant had been committed for trial and his pleas of guilty were not entered until some 7 months later. In his affidavit, Mr Siderowitz categorically denied ever having received such a letter. He added that, had he done so, he would have advised the applicant to retract his pleas of not guilty immediately. Mr Snelling deposed that the document, and the sentiments expressed in it, did not form any part of his instructions leading up to the trial date. Indeed, annexure “A” to his affidavit is a copy of an email to Mr Siderowitz from Ms Brown-Newland, dated 18 July 2017, setting out the applicant’s account of his activities on the day of the offences. It amounts to a denial of any involvement in them. Also contained in the email was a critical examination of the statements of the complainants and Mr Colligan.

35. Both Ms Doyle and Ms Carr deposed that they had no recollection of seeing the letter. Both noted that it purported to be dated in January 2017, well before they came into the matter, and that it was inconsistent with instructions which the applicant had provided to them. Ms Carr deposed that, in her dealings with the applicant, he was “not contrite or remorseful”.

36. In oral evidence the applicant said that he was mistaken when he deposed that the letter had been given to Mr Siderowitz. He said that he handed it to Ms Doyle when he instructed her in the matter, although in cross-examination he added that he could not recall exactly when he gave it to her. He also acknowledged in cross-examination that he had maintained his plea of not guilty up until the time of his trial, even though Mr Siderowitz and Mr Snelling had explained to him his entitlement to a discounted sentence if he pleaded guilty. The process of conveying that advice is set out in Mr Snelling’s affidavit.

37. In oral evidence Ms Brown-Newland also acknowledged that the letter had not been given to Mr Siderowitz or Mr Snelling, but said that it was provided to Ms Doyle. In cross-examination she said that she assumed that it was in “the bundle of documents” which the applicant had given to Ms Doyle. She had not gone through that bundle but that is where the letter had been when she last saw it.

38. Plainly enough, if the letter were written in January 2017, it is inconsistent with the stance he adopted in relation to the charges in instructions to his previous legal representatives and to the solicitor and counsel who represented him in the sentence proceedings. One might question whether the letter was written when it is claimed to have been, but that question was not pursued. It is sufficient to say that I am satisfied that it was not provided to any of his legal representatives.

(b) The sentencing and statistical material

39. Annexure “A” to Ms Brown-Newland’s affidavit is a volume of material she obtained from the internet relating to sentencing for serious assault. It comprises the following:

1. an article published in 1990 by the NSW Bureau of Crime Statistics and Research relating to sentencing assault offenders in the higher courts in New South Wales, and containing analysis of sentencing statistics for assault offences, including offences at the highest level of gravity;

2. a further analysis of sentencing statistics for offences of that kind in an article by the Bureau entitled “Sentencing snapshot for assault”, published in 2011;

1. an extract from the Sentencing Bench Book relating to sentencing principles for the offence under s 33 of the Crimes Act;

2. a 2014 table summarising decisions of the Western Australian Court of Appeal relating to sentencing for the offence of inflicting grievous bodily harm with intent under the Criminal Code of that State;

3. an article by Streetons Lawyers of 2016 examining cases where a s 10 bond was granted for offences of assault occasioning actual bodily harm.

40. In her affidavit Ms Brown-Newland deposed that she had sent this material to Mr Siderowitz. In his affidavit he firmly denied this. However, the material was received by Ms Doyle. She deposed that she did not consider it relevant for reasons which she explained in a letter to the applicant of 28 May 2018, annexure “E” to her affidavit (in response to an email from Ms Brown-Newland, annexure “D”).

41. The matters raised by Ms Doyle were plainly correct. With all due deference to Ms Brown-Newland’s research, her Honour would not have been assisted by statistical analyses of sentencing patterns for serious assault in 1990 or 2011, nor by sentencing cases for offences of that kind in Western Australia. Cases where s 10 bonds had been awarded for offences of assault occasioning actual bodily harm were clearly irrelevant, as the circumstances of the offence of assault occasioning actual bodily harm in company here plainly called for a full time custodial sentence. Of course, the material in the Sentencing Bench Book would have been well known to a sentencing judge as experienced as her Honour, as it would to criminal practitioners such as Ms Doyle and Ms Carr.

(c) Pre-sentence report and other subjective material

42. In his affidavit, the applicant complained that he was not advised that a pre-sentence report from Community Corrections might be obtained, and that he was sentenced without the benefit of one. Ms Doyle deposed in her affidavit that she preferred to obtain a private psychological report because “the defence can control the evidence that is presented to the Court”. A report from a psychologist, Mr Raymond Hudd, was sought and was received on the morning of the hearing date, 5 June 2018. It is annexure “G” to her affidavit. Ms Carr, in her affidavit, deposed that, in any event, it was not appropriate to seek a pre-sentence report prior to the hearing date because until that morning the applicant was still disputing aspects of his alleged involvement in the offending, limiting the strength and utility of such a report.

43. Both Ms Doyle and Ms Carr were troubled by aspects of Mr Hudd’s report and arrived at the conclusion that it should not be used. It was helpful to the extent that Mr Hudd saw the applicant as suffering symptoms consistent with Persistent Depressive Disorder with mixed features, and considered it unlikely that he would receive the treatment he requires while incarcerated. However, as disclosed in the affidavit of Ms Carr, there were other aspects of the report unfavourable to him. Mr Hudd noted that the applicant had been “unwilling to discuss his family situation at length” with him, or to discuss “details of the matter before the court….”

44. By way of psychometric testing, Mr Hudd administered the Trauma Symptom Inventory, a measure of the psychological impact of various forms of trauma and other anxiety related disorders. As to this testing, he observed:

“13.   The test also has three validity scales: Response Level (RL), Atypical Response (ATR) and Inconsistent Response (INC). These scales measure the individual’s tendency to deny symptoms that other people commonly endorse, over endorse unusual symptom that others rarely endorse to a significant extent and to respond to symptoms in an inconsistent or random manner. Mr Udovcic’s score was within acceptable limits on only one of these scales being RL (t41). The other two scales ATR (t86) and INC (t80) was (sic) significantly elevated indicate (sic) that his responses were atypical and inconsistent and could not be relied upon and thus were not valid rendering the test invalid.”

45. Ms Carr deposed that she and Ms Doyle decided that any benefit to the applicant from providing the report to the court “would be dramatically outweighed by the detriment of the failure to engage with the writer and the atypical test results”. Ms Doyle deposed that this was explained to the applicant in conference that morning. This provides further support for the decision not to seek a pre-sentence report, which would have been before the court whether it was favourable to the applicant or not.

46. The applicant’s infant son had been diagnosed with severe microcephaly, a condition which the applicant himself had had. Ms Brown-Newland deposed that on 24 April 2018, a few weeks before the grant of legal aid to Ms Doyle she had obtained from the Ingleburn Community Paediatric Clinic a report about this condition. That report is annexure “D” to her affidavit. In summary, the report notes the boy’s condition and the fact that the applicant himself had also had it. However, consistently with the rest of the report, the authors described the child’s development as “on track”. It notes that the condition can be associated with seizures and cerebral palsy, and advises that his development “should continue to be monitored by child and family nursing”. In oral evidence the applicant agreed that the condition had had no adverse impact on his own life.

47. Ms Doyle deposed that she and Ms Carr had a conference with the applicant on 23 May 2018, during part of which Ms Brown-Newland was present. At that conference the issue of the child’s health was raised and Ms Brown-Newland produced the medical report. Ms Carr noted that the effect of the report was that the child was not currently suffering any symptoms associated with the condition. She discussed the principles relating to the bearing upon sentence of hardship to third parties by an offender’s incarceration: R v Edwards (1996) 90 A Crim R 510. Both she and Ms Doyle were of the opinion that the condition of the child, as matters stood, would not invoke the application of those principles. Ms Carr advised, and Ms Doyle agreed, that if the matter were to be pursued it would be necessary to obtain a specialist report dealing with issues such as prognosis and care. It was left to the applicant and Ms Brown-Newland to discuss with their primary care provider who might be an appropriate specialist. It appears that at the time of the hearing this matter had not advanced.

48. Ms Doyle deposed that at the conference on 23 May 2018 the applicant was “very much opposed” to giving evidence in the sentence proceedings. He said that he did not want to go into gaol as a “dog”, adding that he was “not giving a statement”. The applicant had deposed in his affidavit that the option of giving evidence had not been explained to him and he had given no instructions that he was not prepared to do so. However, in oral evidence he agreed that at that conference he had made it “very clear” to his lawyers that he did not want to give evidence because he might appear to be a dog, and that he maintained that stance on the day of the hearing.

49. In the event, on the day of hearing the applicant’s legal representatives had a psychological report which, on balance, they believed would not assist him. The applicant himself was unwilling to give evidence. Ms Doyle deposed that Ms Brown-Newland was willing to give short evidence of being pregnant, but both Ms Doyle and Ms Carr were concerned about her demeanour that day and previous comments she had made inconsistent with their instructions at that stage. They feared that she may be cross-examined on aspects of the case other than her pregnancy and that this could be dangerous to the defence case.

50. In her affidavit, Ms Carr acknowledged that there was “little subjective material before the court”. She deposed that it would have been preferable for evidence to be presented about the applicant’s subjective circumstances, and that it was often her practice to call the offender, or a partner or family member, for that purpose. In the present case, it was her “forensic judgement” that there was no available material which would assist the applicant. She acknowledged an oversight in not having mentioned the medical condition of their child in submissions to her Honour, even without any further evidence about that matter, but maintained the view that it would have had “little effect on her Honour’s decision on sentence”.

51. The transcript of the sentence proceedings records that Ms Carr sought an adjournment to the following day because of “some subjective material that needs to be confirmed….” That application was refused. It appears that the adjournment was sought to seek confirmation that Ms Brown-Newland was pregnant, a matter which Ms Brown-Newland raised for the first time that morning. In the event, her Honour accepted Ms Carr’s statement from the bar table that Ms Brown-Newland was in the very early stage of pregnancy, even though there was no current medical confirmation of it. Ms Carr did not submit that the pregnancy constituted hardship within the Edwards line of authority but, in effect, argued that the additional parental responsibility might further the applicant’s prospects of rehabilitation.

52. What emerges from this is that Ms Doyle and Ms Carr made tactical decisions about evidentiary matters within the scope of, and consistent with, the proper discharge of their professional duty to their client. Further, their view that the child’s medical condition and Ms Brown-Newland’s pregnancy did not amount to hardship to third parties which might be relevant to sentence accorded with authority on that issue.

(d) Written submissions/sentencing comparators/other matters

53. Mr Stanton complained that her Honour was not provided with written submissions on sentence. Nor was she referred to any comparable cases, particularly relating to the offence of wounding with intent. Her Honour noted that neither the Crown prosecutor nor Ms Carr (nor the solicitor appearing for Mr Toutounji) referred to any available statistics. She had examined statistics herself, disclosing sentences ranging between 18 months and 18 years with a wide variety of non-parole periods. It appears that she also looked at some cases, although she did not name them in her reasons. She noted (as one might expect) that the higher sentences were imposed where the offence was planned and more than one person was involved in its commission. She observed that, while there was “a vast array of facts involved”, the statistics were of little use in the sentencing process. She also could not find any cases in which “the factual matrix” was similar to the facts before her.

54. Of course, a court is always assisted by written submissions. However, as far as I am aware, sentence proceedings in the District Court frequently proceed with oral submissions only. In the present case Ms Carr made oral submissions which dealt appropriately with the issues raised in the proceedings.

55. Equally, sentencing courts are frequently assisted by reference to statistics and comparable cases, particularly in matters as serious as the present. That responsibility, of course, rests upon the Crown as much as it does upon the legal representatives of offenders. It is perhaps regrettable that her Honour was left to conduct that research herself. However, here also, I do not understand the provision of material of that kind to be the invariable practice in District Court sentence matters. Moreover, as Ms Doyle deposed, on the day of hearing it was anticipated that a factual dispute was to be pursued and the psychological report was not received until that morning, so that written submissions could not have been prepared before that day. In the event, written submissions might have been able to be prepared if her Honour had granted the adjournment to the following day which was sought. In the circumstances, it cannot be said that the failure of the applicant’s legal representatives to provide written submissions demonstrates a lack of competence.

56. Finally, Mr Stanton complained of the sparsity of the subjective material presented to the court, a matter upon which her Honour commented in her reasons. When turning to the applicant’s subjective circumstances, she noted that she had “little information” about him, an observation which she repeated when dealing with his prospects of rehabilitation. However, as I have set out above, salient features of the applicant’s subjective circumstances were raised by Ms Carr in oral submissions and, for the most part, accepted by her Honour. A fuller picture of his background and current circumstances was not able to be presented for the reasons set out in the unchallenged evidence of Ms Doyle and Ms Carr.

57. As to this ground generally, the question is whether the conduct of the proceedings by the applicant’s legal representatives led to a miscarriage of justice. The principles are well established. In R v Birks (1990) 19 NSWLR 677, relating to the conduct of counsel in the course of a trial, Gleeson CJ said (at 685 D-F):

“The relevant principles may be summarised as follows:

1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.

2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.

3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.”

58. Those principles were applied, again in a case involving the conduct of counsel at a trial, in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46. The same approach applies when complaint is made about the conduct of sentence proceedings. In Tsiakas v R [2015] NSWCCA 187, Beech-Jones J summarised the position at [44]:

“With both appeals against conviction and sentences, it is not sufficient to warrant intervention to simply point to some failing, even a gross failing, of the legal representative who appeared during the sentence proceedings. In conviction appeals, where incompetence to the relevant standard is demonstrated, the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial (Nudd at [24]). In sentence appeals an analogous principle applies. Thus this Court has considered whether “compelling material was available but not tendered, or its significance not appreciated” (Pym v R [2014] NSWCCA 182 at [75] per Fullerton J, with Hoeben CJ at CL and Price J agreeing; “Pym”), whether material of “significance” was not presented (R v Abbott (1985) 17 A Crim R 355, 356 per Street CJ) or whether the sentencing court was deprived of a consideration of an offender’s circumstances (Munro at [25] per Beazley JA). However, it has also been said that “it will be a very rare case” that a miscarriage of justice will have occurred “simply because of a defect in submissions made to a sentencing judge by defence counsel” (Puan at [55] per Howie J). Again these observations reflect the approach adopted with complaints of a denial of procedural fairness namely that “[f]airness is not an abstract concept. [it] is essentially practical” and that “the concern of the law is to avoid practical injustice” (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] per Gleeson CJ).”

59. In the present case the evidence does not demonstrate incompetence on the part of Ms Carr or Ms Doyle (nor, I should add, on the part of the previous legal representatives). Certainly, the material presented in the proceedings was restricted, for the reasons set out above, but it cannot be said that the manner in which the matter was conducted gave rise to a miscarriage of justice.

60. This ground is not made out.

61. It is convenient at this point to deal with Ground 3 which is in the following terms:

1. Her Honour erred by discounting the sentence in relation to both offences concerning assault occasioning actual bodily harm in company to Adam Banham and wound with intent to cause grievous bodily harm to Matthew Jenkinson by less than 5 per cent for the utilitarian value of the guilty plea.

   62. As noted above, in the light of the history of the proceedings, particularly the late decision not to contest the facts for the purpose of sentence, her Honour determined that the utilitarian value of the pleas of guilty should be reflected by a discount of “less than 5 per cent”. It appears that the rounded down indicative sentences at which she arrived reflect a 5 per cent discount: see [27] above.

   63. The new regime of discounts for the utilitarian value of pleas of guilty in Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to this matter. The position is governed by the common law, developed in decisions of this Court since R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309. The development of the approach to this issue reflected in the authorities was summarised by Howie J (with whom McClellan CJ at CL and Simpson J agreed) in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1. His Honour did so by a series of propositions in [32], which included the following:

   “1.   The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116].

   …

   9.   The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2009] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448.”

   64. R v AB [2011] NSWCCA 229 was a Crown appeal in which the respondent had pleaded guilty to certain charges in the Local Court but in which there was a factual dispute which had to be resolved by a hearing in the District Court. Johnson J (with whom Bathurst CJ and Hoeben CJ at CL agreed) observed at [32] that “a person who pleads guilty but puts the Crown to proof on certain factual issues and who loses that dispute, is not entitled to the same discount for a plea of guilty, on utilitarian grounds, as a person who does not require such a contested hearing”. His Honour added at [33]:

   “… as a matter of general principle, this Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. This involves no more than an acknowledgment of the fact that what may be gained in utilitarian terms as a result of the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender.”

   65. In the same case Bathurst CJ observed at [2]-[3]:

   “2   In par [33] of his judgment, Johnson J emphasises that, as a matter of general principle, the Court should state that the utilitarian value flowing from a plea of guilty is not a fixed element and is capable of erosion as a result of the manner in which the sentencing hearing is conducted. I agree. Whilst, as Spigelman CJ pointed out in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [152], the primary consideration for the extent of a utilitarian discount was the timing of the plea this should not obscure the fact that there may be circumstances as Johnson J has pointed out where the utilitarian value may be eroded. Equally, there may be some exceptional circumstances in which it is appropriate to give a full utilitarian discount for a plea, notwithstanding the fact that it has not been entered at the earliest opportunity.

   3   That is not to say that sentencing courts should not generally continue to follow the approach in R v Borkowski [2009] NSWCCA 102; (2009) A Crim R 1, but merely that the principles have to be applied by reference to the particular circumstances in any case.”

   66. Often enough, at common law, a plea of guilty entered on the day of trial would lead to a discount of the order of 10 per cent. True it is that in the present case the applicant pleaded guilty very shortly after the day fixed for trial (and, apparently, before the trial had commenced), and on the day of the sentence proceedings finally commenced abandoned the dispute as to the facts. Nevertheless, the applicant adopted that stance some 10 months after the matter had been listed for trial and after several adjournments, and in circumstances where witnesses had attended the court to give evidence about the disputed issues. The utilitarian value of the pleas was significantly eroded by this course of events. The discount which her Honour allowed was within the legitimate bounds of her discretion.

   67. This ground is not made out.

Ground 2 - the sentence in relation to the offence of wound with intent to cause grievous bodily harm upon Matthew Jenkinson is manifestly excessive

68. As the Crown prosecutor in this Court pointed out, this ground is misconceived because, although indicative sentences may be a guide as to whether error is established in relation to an aggregate sentence, an indicative sentence itself cannot be the subject of appeal. He referred to JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528, in which RA Hulme J (with the agreement of Hoeben CJ at CL and Adamson J) said at [40] (11-13):

“11. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55].

12. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R at [44],[82]; BJS v R [2013] NSWCCA 123 at [252]-[254].

13. A principle (sic) focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41].”

69. The Crown prosecutor was content, as was the Court, to treat this ground as asserting that the aggregate sentence is manifestly excessive because of error in the formulation of the indicative sentence for the wound with intent charge.

70. The principles governing the determination of a ground that a sentence is manifestly excessive are well established, and were summarised by RA Hulme J (with whom the other members of a five judge bench agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443] (241-2):

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

It is not to the point that this Court might have exercised the sentencing discretion differently.

There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

71. Both Mr Stanton and the Crown prosecutor referred to decisions of this Court dealing with sentences for the offence of wounding with intent. Mr Stanton referred to R v Nicholson [2010] NSWCCA 80 and R v Hookey [2018] NSWCCA 147.

72. Nicholson was a Crown appeal against a sentence (in round figures) of 5 years and 11 months, comprising a non-parole period of 4 years and 5 months and a balance of term of 1 year and 6 months. The sentence had been arrived at after a discount of 15 per cent for the respondent’s plea of guilty. It arose from a spontaneous stabbing by the respondent of his partner in the course of a heated exchange in a public place. She suffered three stab wounds, one serious enough to require surgery. The respondent had a long criminal history and was on conditional liberty at the time, but otherwise made out a sympathetic subjective case. He suffered from a mental condition which reduced his culpability, and the court accepted the finding that the objective gravity of the offence was significantly below the mid-range. The sentence was found not to be manifestly inadequate.

73. Hookey was also a Crown appeal against a sentence of 3 years and 8 months with a non-parole period of 2 years and 2 months. This also was a spontaneous offence in a public place: a road rage incident in which the respondent stabbed the victim three times, causing serious injury. He was Aboriginal from a deprived background, who made out a strong subjective case. The court found that the sentence was manifestly inadequate but, in the light of the subjective case, dismissed the appeal in the exercise of its residual discretion.

74. The Crown prosecutor referred to Porter v R [2015] NSWCCA 59 and De Wet v R [2015] NSWCCA 23.

75. In Porter the applicant had been sentenced to 5 years with a non-parole period of 3 years. This is after a 25 per cent discount for his plea of guilty, the starting point being 6 years and 8 months. The applicant struck the victim’s arm with a machete. The offence was committed at the victim’s home. The applicant had gone there armed with a machete, but the sentencing judge accepted that he had taken the weapon to protect himself. The event occurred in the context of an ongoing dispute and the wounding was spontaneous. This applicant was Aboriginal. He had had a disadvantaged childhood, had mental health issues, and generally made out a sympathetic subjective case. Nevertheless, the sentence was not found to be manifestly excessive.

76. In De Wet the applicant had been sentenced for specially aggravated detaining for advantage and inflicting grievous bodily harm with intent. Partly cumulative sentences were imposed, leading to an overall sentence of 10 years with a non-parole period of 7 years. The sentence for inflicting grievous bodily harm with intent was 9 years with a non-parole period of 6 years, after a discount of 10 per cent for his plea of guilty. The offence involved a serious and sustained physical attack upon the victim, causing significant injuries, although without the use of a weapon. The offence was planned, and committed in company at the victim’s home. The applicant’s subjective case was not favourable. The Crown prosecutor in this Court acknowledged that the sentence was heavy, but the Court did not find it to be manifestly excessive.

77. Mr Stanton also referred to some sentencing decisions of District Court judges which were not the subject of appeal. While the experience of judges of that court, whose daily task it is to sentence for a wide variety of offences, commands respect, I accept the Crown prosecutor’s submission that consistency in sentencing is to be achieved primarily by reference to decisions of this Court.

78. The cases referred to here involve disparate facts and subjective considerations. For the purpose of examining the sentence in the present case, they fall short of the “yardstick” to which Simpson J (as she then was) referred in Director of Public Prosecutions (Cth) v De La Rosa (2010) 78 NSWLR 1; [2010] NSWCCA 194 at [304], an approach endorsed by the High Court in Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]. Certainly, in combination with the statistics summarised by the sentencing judge in her reasons, they do not demonstrate error in the aggregate sentence arising from the indicative term for the wounding with intent count.

79. Her Honour’s finding that the objective gravity of the offence was slightly above the mid-range was clearly open. It appears that, fortunately, Mr Jenkinson has not suffered permanent injury but the injuries inflicted were, in their totality, serious. As her Honour noted, the offence was aggravated by having been planned, committed in company and perpetrated at the home of Mr Banham, where Mr Jenkinson was a house guest. Generally, her Honour took into account such favourable subjective material as was before her, including the fact that the applicant had a relatively minor criminal history with no entries for offences of violence and was facing his first prison term. She also noted that he had been on bail for 2 years without committing any further offences.

80. On the other hand, her Honour found that the applicant had not shown any remorse, considering his late plea of guilty and his “final capitulation in respect of the facts to be no more than an acceptance of the inevitable”. That finding was open to her. In arriving at the aggregate sentence, her Honour did not find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period, saying that the period of parole eligibility would allow for significant time for supervision upon the applicant’s release. The parole period is 2 years and 6 months, and this conclusion also was open to her Honour.

81. Finally, the aggregate sentence imports a large degree of concurrency between the indicative sentences, reflecting an appropriate application of the principle of totality. The indicative sentence for the wound with intent count, though severe, does not demonstrate error, and the aggregate sentence cannot be said to be unreasonable or plainly unjust.

82. This ground (as notionally recast) is not made out.

Orders

83. I would grant leave to appeal but dismiss the appeal.

**********

Decision last updated: 21 August 2019