Vincent v The Queen

[2020] NSWCCA 271

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Vincent v R [2020] NSWCCA 271

Hearing dates:

19 August 2020

Decision date:

21 October 2020

Before:

Gleeson JA at [1];
Rothman J at [2];
Price J at [92]

Decision:

(1)   Leave to appeal granted;

(2)   The sentence imposed on the applicant by the District Court at Campbelltown on 6 May 2019, for the offences of wound with intent to cause grievous bodily harm and specially aggravated detain for advantage, each committed on 22 June 2016, is quashed;

(3)   In lieu of the aforesaid sentence, the applicant is sentenced to an aggregate sentence for the offences of wound with intent to cause grievous bodily harm and specially aggravated detain for advantage, each committed on 22 June 2016, of 10 years’ imprisonment, commencing 30 May 2017 and concluding 29 May 2027, with a non-parole period of 6 years and 8 months, concluding 29 January 2024. The applicant is first eligible for release on parole on 29 January 2024.

Catchwords:

CRIME – Sentence Appeal – manifest excess and failure to give effect to special circumstances – no manifest excess, by majority, minority did not need to consider – effect of accumulation on previously imposed sentences – assumed oversight – re-sentenced.

Legislation Cited:

Crimes Act 1900 (NSW), ss 33(1)(a), 86(3)

Cases Cited:

CM v R [2013] NSWCCA 341

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

GP v R [2017] NSWCCA 200

Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Maglis v R [2010] NSWCCA 247

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25

Category:

Principal judgment

Parties:

Anthony Thomas Vincent (Applicant)
Crown (Respondent)

Representation:

Counsel:
R Rodger (Applicant)
B Baker (Respondent)

Solicitors:
Ryan & Payten (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2016/199510

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

6 May 2019

Before:

Noman SC DCJ

File Number(s):

2016/199510

Judgment

1. GLEESON JA: I agree with the orders proposed by Rothman J on the basis that the appeal should be allowed on ground 2 for the reasons given by his Honour and that it is necessary to re-sentence the applicant. In the circumstances, it is not necessary to decide ground 1 which asserts manifest excess.

2. ROTHMAN J: The applicant seeks leave to appeal against the sentence imposed upon him by her Honour Judge Noman SC on 6 May 2019 in the District Court at Campbelltown. Her Honour imposed an aggregate sentence of 10 years’ imprisonment, with a non-parole period of 7 years’ imprisonment.

3. The applicant pleaded guilty to two offences to which the impugned sentence relates. Those offences are:

Count 1: Wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), for which there is a maximum penalty of 25 years’ imprisonment and a 7-year standard non-parole period;

Count 2: Specially aggravated detain for advantage, contrary to s 86(3) of the Crimes Act, for which there is prescribed a maximum penalty of 25 years’ imprisonment and there is no standard non-parole period.

4. The indicative sentence for the wound with intent offence (Count 1) was 9 years’ imprisonment with a non-parole period of 6 years and the indicative sentence for Count 2, the specially aggravated detain offence, was imprisonment for 5 years and 2 months.

5. The aggregate sentence was backdated so that it was partly concurrent with custodial sentences that the applicant had recently served for unrelated offending. That unrelated offending was an offence of armed with intent to commit an indictable offence and assault occasioning actual bodily harm.

6. A non-parole period for those previous offences expired on 29 September 2017 and the head sentence for those offences expired on 29 July 2018. The sentencing judge ordered that the sentence for the present offences commence on 30 May 2017, as a consequence of which the applicant’s non-parole period will expire on 29 May 2024. The head sentence will expire on 29 May 2027.

7. As already noted, the applicant entered a plea of guilty to the charges on the indictment. This plea of guilty was entered on the day after the trial was listed to commence. The sentencing judge allowed a 10% discount for the applicant’s late plea of guilty. Her Honour found special circumstances on the basis of the applicant’s need for an extended period of supervision, the possible risk of institutionalisation and on account of accumulation. The ratio of the non-parole period to the head sentence is, as is arithmetically obvious, 70%.

Grounds of Appeal

8. The application for leave to appeal has been filed within the time allowed, following a number of extensions. The applicant seeks leave to appeal, and if leave be granted, seeks to base the appeal on the following two grounds:

1. Ground 1: The total aggregate sentence and the non-parole period imposed were manifestly excessive; and

2. Ground 2: The sentencing judge erred in failing to give effect to the finding of special circumstances.

Facts

9. At the sentence proceedings, the applicant and the Crown agreed upon relevant facts and recorded the agreement in a document under the title “Agreed Facts”, which was included in Exhibit A on Sentence. [1] The applicant was sentenced at the same time as his co-offenders, Asha Baverstock and Laura Brennan.

   1. Remarks on Sentence, at p 2.5.

10. Following a dispute about money, the victim sent text messages to the applicant’s friends and father to the effect that the applicant was not repaying the money that the victim said that he owed. In those text messages, the victim said that the applicant had “done a dog act”. [2]

    2. Agreed Facts, at [6].

11. The applicant took “excessive umbrage at this” [3] comment and, about a week before the offence, the applicant telephoned the victim and told him that he was “hunting for him” [4] . The co-offender, Baverstock, exchanged text messages with the victim between 9 and 22 June 2016.

    3. Remarks on Sentence, at p.2.9.

    4. Agreed Facts, at [1]-[8].

12. On 21 June 2016, the day before the offence, Baverstock sent a text message to the victim arranging to meet the victim at her father’s house the following day. The victim arrived at Baverstock’s father’s house by taxi at 12:53 PM. Baverstock and the victim entered the house; sat on the lounge; smoked cigarettes; and talked. [5]

    5. Agreed Facts, at [10]-[15].

13. Whilst they were talking, the victim heard footsteps and suddenly the applicant hit the victim in the head with the back of an axe. The applicant swung the axe and hit the victim’s arm, cutting it open. He then lunged at the victim with a knife. The victim raised his hand and the knife cut through his hand. The applicant swung the axe and hit the victim’s leg, cutting it open. While he was attacking the victim, the applicant called him a traitor and asked why he had turned on him. [6] The applicant’s conduct in attacking the victim with an axe and cutting open the victim’s leg and arm is Count 1, wound with intent to cause grievous bodily harm.

    6. Agreed Facts, at [16]-[17].

14. The applicant told Baverstock to tie up the victim. Baverstock retrieved some Band-Aids, a bucket and some towels. The applicant told the victim to lie down and put his hands behind his back. Baverstock put sanitary pads on the victim’s arm and the applicant cut up a bedsheet and tied it around the victim’s finger and leg. The two co-offenders put Band-Aids on his face and leg. The applicant tied the victim’s hands in front of him. [7]

    7. Agreed Facts, at [18].

15. The applicant wanted the victim to speak to his father and withdraw his comments. The applicant told the victim that he would not be hurt anymore. The applicant called another co-offender, Ms Brennan, and told her that he, the applicant, had the victim. The applicant then called a male, who told the applicant to bring the victim to him. The victim was covered in a dressing gown and escorted to the boot of a car. Ms Baverstock drove the vehicle. She left at approximately 1:45 PM. From the boot of the vehicle, the victim sent a text message to the applicant’s father seeking assistance. [8]

    8. Agreed Facts, at [23], [27]-[30].

16. At 2:26 PM, the car entered a service station and the applicant and Ms Baverstock left the vehicle. At 2:29 PM, the victim escaped from the boot with his hands still tied. The victim ran down the street and was assisted by a passer-by who called police and an ambulance. [9]

    9. Agreed Facts, at [32], [33], [35]-[38], [40].

17. The period of detention of the victim was about 1 ½ hours and came to an end only when the victim escaped. [10] The victim arrived at the hospital at 3:30 PM and was examined by doctors. The victim required surgery. The victim’s injuries were: a 15 cm right posterior arm laceration, full-thickness extending into and splitting triceps muscle, radial nerve repaired; jagged laceration base of right finger, flexor digitorum superficialis and profundis and ulnar neurovascular bundle were divided; 3 cm laceration over right zyogomatic region, extending to muscle; and 60% laceration of tibialis anterior tendon to the left leg, and 6 cm laceration extending to the ankle joint. [11]

    10. Remarks on Sentence, at p.4.

    11. Agreed Facts, at [46].

18. The victim’s injuries to the cheekbone and arm were caused by the axe. The injuries to the finger and leg were caused by the knife. The victim required a second surgery. Following discharge on 24 June 2016, it was believed that the victim would require ongoing physiotherapy and splinting for his right hand for several weeks to months and that his left ankle would need to be immobilised for six weeks. This prognosis was not updated by the time the sentence was imposed. [12]

    12. Agreed Facts, at [51]-[53].

Subjective Factors

19. The applicant was 52 years old at the time of sentencing. He had a criminal history commencing in 1985 that included dishonesty, firearm and drug offences. His first offence of violence was in 2000. The applicant’s criminal record disentitled him to leniency, according to the sentencing judge. [13]

    13. Remarks on Sentence, at p. 7.

20. A Psychological Report prepared by Ms Gumbert-Jourjon, which was tendered and included within Exhibit 1 in the sentence proceedings, detailed the applicant’s personal background and his substance abuse issues. The applicant had started smoking cannabis when he was 17 years of age. [14] Soon afterwards, the applicant started smoking cannabis topped with heroin. In 2008, he began using ice. From at least 2013, he regularly used ice and heroin. [15]

    14. Gumbert-Jourjon Report, at section 2.5.

    15. Gumbert-Jourjon Report, at section 2.5.

21. The Psychological Report indicated that the applicant was exposed to domestic violence as a child. The domestic violence emanated from his father and was inflicted on the applicant and the applicant’s mother. [16] His father was involved in organised crime. [17]

    16. Gumbert-Jourjon Report, at section 2.3.

    17. Gumbert-Jourjon Report, at section 2.3.

22. The psychologist expressed the opinion that the applicant’s background evidenced significant criminogenic risk factors mainly through normalising antisocial attitudes. [18] The psychologist opined that the applicant may lack insight into his risk factors given his ill-formed view that he is generally non-violent, but also stated that the applicant does appear to reject attitudes that would clearly support or condone the use of serious violence. [19] The psychologist considered that, given the long-standing nature of his addictions, the applicant would be at risk of relapse, if he were to remain untreated, but also noted that the applicant appears genuinely motivated to abstain from drug use. [20]

    18. Gumbert-Jourjon Report, at section 4.1.

    19. Gumbert-Jourjon Report, at section 4.1.

    20. Gumbert-Jourjon Report, at section 4.1.

23. As previously mentioned, at the time of sentence, the applicant had been serving sentences for offences of assault occasioning actual bodily harm in company and being armed with intent to commit a serious indictable offence. These offences related to an assault on a 59-year-old woman, whilst the applicant was armed with a knife. These offences were committed a month prior to the subject offences.

Sentence Proceedings

24. The applicant gave evidence during the course of the sentence proceedings and was cross-examined. The applicant stated that he was involved in the sending of the texts from Ms Baverstock to the victim and arranging for the victim to meet Ms Baverstock. He sent the first few texts from Ms Baverstock’s telephone and told her what to say in the later texts. [21]

    21. Tcpt, p 24 l 5-25; Tcpt, p 46.

25. The applicant maintained that he did not intend to use the axe or the knife. Rather, he had intended only to scare the victim. At some stage, the applicant said he decided to hit the victim, although he disagreed that he had intended to punish the victim. [22]

    22. Tcpt, p 23 l 12-33; Tcpt p 55 l 46-50.

26. The applicant said in evidence that when he had tied up the victim and put him in the boot of the car, the applicant had intended to take the victim to hospital. [23]

    23. Tcpt, p 24 l 26-34.

27. After the victim had escaped, the applicant consumed more drugs and tried to “blank out” what he had done, according to his testimony. He also sent a friend to St Vincent’s Hospital to see if the victim was still there. [24]

    24. Tcpt, p 25.

28. The applicant said that his life had been spent on drugs, or trying to get off them, which comment was repeated by her Honour. [25] The applicant said that he was sorry and ashamed for what he had done. [26]

    25. Remarks on Sentence, at p.8-9.

    26. Tcpt, p 27 l 1-24.

Remarks on Sentence

29. Her Honour applied a discount of 10% for the late plea of guilty, in accordance with the guideline judgment. [27] Her Honour noted that the victim had undergone two surgeries to address injuries to tendons, nerves and muscles inflicted by the axe (being the injuries to the cheekbone and the arm) and a knife (being the injuries to the finger and leg), which had the effect of a degree of immobilisation and required physiotherapy and splinting for a number of months. Her Honour noted that there was no evidence of longer term or permanent injury. [28]

    27. Remarks on Sentence, at p.2; R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.

    28. Remarks on Sentence, at p.4.

30. The detention inflicted by the applicant was for approximately 1 ½ hours and only ceased when the victim made good his escape. [29]

    29. Remarks on Sentence, at p.4.

31. The sentencing judge did not accept the applicant’s evidence that he only intended to scare the victim. Her Honour found that the evidence supported the infliction of some “unspecified” retaliation, which, as a consequence, was planned. [30] Nor did the sentencing judge accept the applicant’s evidence that the victim was being driven to the hospital.

    30. Remarks on Sentence, at p.5.

32. The judge determined that the victim was being driven to a location, unknown to police, following a conversation about taking him to an unknown male’s place. Her Honour found the victim was being detained to exact punishment for that which the applicant perceived as a wrong to him. [31]

    31. Remarks on Sentence, at p.5-6.

33. The fact that there were two weapons was taken into account by her Honour, who also had regard to the nature of the weapons and that they were used four times. Her Honour found that the applicant determined to use the weapons not long before they were, in fact, used. [32] Her Honour was unable to find, to the requisite standard, that the weapons were taken to the location by the applicant. [33]

    32. Remarks on Sentence, at p.5.

    33. Remarks on Sentence, at p.4-5.

34. An element of the offence was that the conduct occurred in company and her Honour was satisfied of that but only to the bare minimum. [34] Her Honour determined that the objective seriousness of each of the offences fell “at about the mid-range”. [35]

    34. Remarks on Sentence, at p.5.

    35. Remarks on Sentence, at p.7.

35. The sentencing judge’s remarks referred to the applicant’s criminal record and the circumstance that there were a number of entries, in various States, dating back to 1985. That record, according to her Honour, was such as to disentitle him to the leniency that might otherwise be afforded to him. [36]

    36. Remarks on Sentence, at p.7.

36. Her Honour accepted that aspects of the applicant’s childhood amounted to “the type of social disadvantage supporting a mitigating of sentence to a moderate degree”. [37] Her Honour also noted that, although the applicant sought to minimise some of his involvement in the offending, he had accepted responsibility and had indicated some remorse. [38]

    37. Remarks on Sentence, at p.8.

    38. Remarks on Sentence, at p.10.

37. The sentencing judge considered that the applicant’s prospects of rehabilitation were “difficult to gauge” and “were likely poor” and, in so doing, considered his risk of reoffending in a similar vein. [39] Personal deterrence, in the view of her Honour, was important and had a continuing role to play. Nevertheless, general deterrence was, in her Honour’s view, of considerable significance. [40]

    39. Remarks on Sentence, at p.12.

    40. Remarks on Sentence, at p.12.

38. The sentencing judge found special circumstances based on the “obvious need for extended supervision upon parole, the possible risk of institutionalisation and accumulation”. [41] Her Honour varied the standard ratio to 70% (from the prescribed 75%). [42]

    41. Remarks on Sentence, at p.14.

    42. Remarks on Sentence, at p.16.

39. Most relevantly, her Honour noted that the sentences that the applicant was already serving would be taken into account when considering totality. [43] Her Honour noted [44] that:

“Albeit factually connected, the imposition of an entirely concurrent term would produce an outcome which is unjust and inappropriate as it would fail to recognise or to reflect that the circumstances in [each] offence were different from the other… The offender Vincent has been in custody since 30 June 2016. During this period he was in custody serving sentences from 30 June 2016 for three months for goods in custody, then from 30 July 2016 a non-parole period of 14 months to 29 September 2017, for an assault occasioning actual bodily harm and a robbery with a term that expired on 29 September 2018.”

43. Remarks on Sentence, at p.7.

44. Remarks on Sentence, at p.13-14.

40. Her Honour then proposed that the sentence commence on 30 May 2017.

41. The effect of the sentence imposed by her Honour and its accumulation with the sentences already being served by the applicant was that her Honour sentenced the applicant to a total effective sentence of 10 years and 11 months, with a non-parole period of 7 years and 11 months, which amounts to 72.5% of the head sentence. This issue forms the basis for the applicant’s second ground of appeal.

Ground 1: manifest excess

Submissions

42. Without disputing the conclusions of her Honour, the applicant submits that, on the basis of those conclusions, the sentences imposed were and are manifestly excessive. In this regard, the applicant stresses that the offences were in the mid-range; the applicant’s moral culpability was “moderately” reduced due to social disadvantage; the sentence was discounted by 10% for the plea of guilty; and special circumstances were established, based on the need for supervision, the risk of institutionalisation and on account of accumulation.

42. The applicant refers to a number of judgments, one of the primary ones being R v Baquayee, [45] to submit that the sentences imposed by her Honour were outside the pattern of sentences imposed for similar conduct. [46] In the same vein, the applicant refers to the sentencing statistics published by the Judicial Commission of New South Wales. [47] The applicant submits that less than 5% of offenders received a lengthier aggregate sentence and non-parole period than the applicant, in circumstances where, as stated, the sentencing judge had determined that the offending in question was in the mid-range or “at about the midrange”.

    45. Regina v Baquayee [2003] NSWCCA 401.

    46. Series of cases at applicant’s Written Submissions at [13]-[14].

    47. Applicant’s Written Submissions at [12].

43. In that submission, the applicant points to the fact that most offenders who received similar sentences to that imposed upon the applicant were guilty of multiple counts attracting standard non-parole periods; permanently injured the victim; committed the offences in company where all of the offenders were armed; and the offences were found to be above the mid-range of objective seriousness.

44. Thus, the applicant submits that the sentence does not reflect the conclusion that the sentencing judge reached as to the objective seriousness of the offences. The applicant also submits that there is a lack of clarity in her Honour’s findings in relation to accumulation and the finding of “special circumstances”. The applicant submits that it is unclear from her Honour’s comments whether her Honour is referring to the two offences for which her Honour was sentencing the applicant or those for which the applicant was already serving sentences, or both.

45. The sentences that were being served were, obviously, taken into account in relation to totality. Her Honour made express reference to the need so to do and to the manner in which those sentences affected the sentencing discretion which her Honour was exercising.

46. Nevertheless, as the applicant submits, the previously imposed sentences were in fact partially accumulated and this resulted in a non-parole period of 15 months, with a total term of 2 years and 1 month dating from 30 July 2016. Even with the partial accumulation, the ratio imposed for the pre-existing sentences had been 60%, indicating a finding of special circumstances. Her Honour made a finding that a 70% ratio was appropriate in the circumstances of and for the current offences.

47. Notwithstanding those respective findings, the sentence imposed by her Honour resulted in the non-parole period having a total effective ratio of 72.5% of the head sentence, which, in the submission of the applicant, is indicative of manifest excess.

48. It is difficult to deal with the foregoing submissions in full, without also dealing with Ground 2 of the appeal, which deals with the ratio and the submission that the finding of special circumstances was not given full effect.

49. In relation to Ground 1, the Crown submits that the sentences imposed were not manifestly, or otherwise, excessive. The Crown points to the comments of her Honour as to the detention of the victim, in particular, whilst injured in the car boot and the reference by her Honour to such an experience being “an exquisitely terrifying experience”. [48]

    48. Remarks on Sentence, at 6.

50. The Crown also submits that the Court should assess the sentence imposed against the maximum penalty available, which is 25 years’ imprisonment for each offence, and the 7-year standard non-parole period for the offence of wound with intent. In those circumstances, the Crown submits the aggregate sentence of 10 years’ imprisonment with a non-parole period of 7 years is not manifestly excessive.

51. As has been noted on many occasions by this Court and as is stressed by the Crown in its submissions, that sentencing statistics are, or may be, of limited value. If applied strictly, the past pattern of sentencing evidenced by statistics will form a self-fulfilling limit on the sentences to be imposed. The pattern of past sentencing is not equivalent to the range of sentences that are available for a particular case.

Ground 2: special circumstances not reflected in non-parole period

Submissions

53. As indicated, impliedly, by the submissions already recited relating to Ground 1 of the appeal, the applicant submits that the finding of special circumstances was not, in practical terms, given effect. Her Honour found special circumstances and determined that the non-parole period should be 70% of the head sentence.

54. Nevertheless, as a consequence of the accumulation with the sentences already served, which had a 60% ratio, the non-parole period was, in effect, 72.5% of the head sentence, in circumstances where the statutory ratio is for not less than 75%. Further, the effect of the accumulation was to affect the special circumstances found and imposed in relation to the sentences already being served, such that the 60% ratio of non-parole period to head sentence, in those earlier sentences, was effectively rendered nugatory.

55. Moreover, the applicant points out that the sentencing judge made no express comment about the alterations to the ratio affected by the manner in which these sentences were accumulated. In those circumstances, the applicant submits it is either difficult or impossible to determine whether the result was intentional or should be taken as an unintended consequence of the structure adopted by her Honour, the latter being the applicant’s primary submission on this issue.

56. The applicant acknowledges that special circumstances are a matter of judicial discretion, but refers to those judgments of this Court which have held that, where accumulation affects the ratio determined by a sentencing judge and there is no express reference to that aspect, the Court should assume that the effect of the accumulation on the finding of special circumstances has been overlooked. In relation to the consequences of success on this particular ground of appeal, the applicant calculates that, were a 70% ratio to be given effect, the non-parole period would have been 6 years and 9 months, dating from 30 May 2017 and expiring on 29 February 2024.

57. The Crown submits, in relation to this ground, that the 3-year period during which the applicant is eligible for parole is a sufficient period of time for the applicant to address the rehabilitation issues to which the sentencing judge referred.

58. The Crown refers to her Honour’s comments which specify the precise period during which the applicant will be eligible for parole and refers to the minimum period as one that is necessary in order to ensure that the non-parole period would address the seriousness of the offending. [49]

    49. Remarks on Sentence, at p.16.

59. The Crown submits that her Honour’s express statement that “no lesser non-parole period” would address the seriousness of the offence is sufficient to overcome any inference that the fixing of the precise ratio was an oversight caused by accumulation.

60. In other words, the Crown submits that her Honour’s express conclusion that no lesser period than that which was imposed as the non-parole period would be sufficient to address the seriousness of the offending, necessitates the view that her Honour considered that no further reduction of the non-parole period was appropriate in order to maintain a 70% ratio that her Honour otherwise determined.

Consideration

61. The applicant’s second ground of appeal relates to the failure of the sentencing judge to give effect to the finding of special circumstances and the ratio fixed by the sentencing judge, as an appropriate ratio for the offences for which the applicant was sentenced. There are two offences, as indicated earlier, one being wound with intent to cause grievous bodily harm (“the wounding offence”) for which the maximum penalty is 25 years’ imprisonment and for which there is prescribed a 7-year standard non-parole period. The second offence is specially aggravated detain for advantage (“the kidnapping offence”), for which the maximum penalty of 25 years’ imprisonment has been set and for which there is no prescribed standard non-parole period.

62. The aggregate sentence imposed by her Honour was a 10-year head sentence with a non-parole period of 7 years. Her Honour, in fixing that sentence, had discounted the starting point by 10% to take account of the utilitarian value of a late plea of guilty. Nevertheless, her Honour fixed the non-parole period on the basis of having indicated that there were special circumstances and expressing a non-parole period by reference to it being 70% of the head sentence. The effect of the sentence imposed, as a result of the accumulation, does not give effect to that determination.

63. While her Honour comments that no lesser period is appropriate for the non-parole period, that comment is equally applicable to the sentence that was to be imposed, whether or not it was to be served partly concurrently with a current term of imprisonment. In other words, the comments of her Honour do not adequately explain why there has been a departure from the express determination of special circumstances and the fixing of a non-parole period that was 70% of the head sentence.

64. The Court is entitled, in those circumstances, to assume that the reduction in the potential effect of the non-parole period was a miscalculation or an unintended consequence of the effect of accumulation and concurrency. As a consequence, while technical, error has been disclosed, the difference between a ratio of 70% and a ratio of 72.5% is an additional 3 months in the non-parole period.

65. In Sabongi v R [50] , Hamill J said:

    50. Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25 at [88]-[89].

“[88]    Whilst it is clear that the learned sentencing Judge was aware of the total effective non-parole period and total effective overall sentence, nowhere in the Judgement on sentence, the transcript of the submissions or the explanation to the applicant of the impact of the sentence after sentence was imposed did his Honour make plain that he fully intended and was aware that the adjustment to the non-parole period on count 7 would achieve no more than resulting in the applicant spending 75% of the total sentence in custody.

1. In coming to a final conclusion, it is significant that the finding of special circumstances was not based solely upon the accumulation. His Honour referred to the ‘need for extended rehabilitation’, the fact that it was the offender’s first time in custody and his ‘relatively young age’. It was after referring to those matters that his Honour said that ‘accumulation of sentences may also be regarded as a special circumstance.’”

   66. This follows authority over many years that, in the absence of an explanation as to why the determined level of non-parole period should be altered, or an express statement to the effect that the sentencing judge understands the alteration and intends it, an alteration in the effective ratio between non-parole period and head sentence caused by accumulation with other sentences will be seen as an unintended consequence of the sentence imposed by the sentencing judge and will be corrected on appeal. [51]

       51. CM v R [2013] NSWCCA 341 at [40]; Maglis v R [2010] NSWCCA 247 at [24]; GP v R [2017] NSWCCA 200 at [22]; and Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282 at [35]-[36] and [18]-[19].

   67. For the foregoing reason, in my view, error has been disclosed in the sentence that has been imposed. The error relates to the apparent failure to take account of the effect of accumulation with existing sentences on the ratio of the non-parole period to the head sentence, otherwise determined.

   68. I turn then to the ground of appeal that argues that the sentence is also manifestly excessive. In order for a sentence to be manifestly excessive, which is specie of manifest error, the sentence imposed must be plainly unfair or unjust. [52] Manifest error occurs when the outcome of the exercise of the sentencing discretion evidences a failure to apply appropriately the principles of sentencing or otherwise to err in a manner that is unable to be identified. [53]

       52. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; House v The King (1936) 55 CLR 499; [1936] HCA 40.

       53. House v The King, supra.

   69. The applicant submits, as earlier stated, that the sentence imposed is beyond that appropriate for what was determined by the sentencing judge as mid-range offences. It is the aggregate sentence that is the subject of appeal. The indicative sentences are examined for the purpose of determining whether any error in such an indicative sentence informs the determination of whether error has occurred in the imposition of the aggregate sentence.

   70. The applicant has supplied statistics available from the Judicial Commission of New South Wales and has referred the Court to a series of other judgments. Consistency in sentencing is an important criterion which reflects the norm of equal justice. [54] It is fundamental to the exercise of judicial power in a democracy.

       54. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45.

   71. Consistency in sentencing is not the same as numerical equivalence. Consistency in sentencing is achieved by the consistent application of sentencing principles. [55] Further, and more relevantly in the current circumstance, the range of sentences that are available to a sentencing judge is not equivalent to the pattern of past sentencing.

       55. Hili; Jones, supra.

   72. Nevertheless, as the accumulated wisdom of sentencing judges and appellate courts over a period, the pattern of past sentencing may be of considerable significance as a guide to be used and as a “yardstick” against which one may examine any proposed sentence. [56]

       56. Hili; Jones, supra at [49], [54]-[55]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305], per Simpson J (as her Honour then was); Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [95].

   73. As earlier stated, the sentencing judge had determined that the objective seriousness of each of the offences fell “at or about the mid-range”. [57] As already stated, the maximum sentence for each offence is 25 years’ imprisonment and the wounding offence has a prescribed standard non-parole period of 7 years’ imprisonment. Clearly, on the facts agreed between the parties, the two offences were part of the one course of conduct.

       57. Remarks on Sentence, at p.7.

   74. No party seeks to impugn the categorisation by the sentencing judge of objective seriousness. The indicative sentences were 9 years for the wounding offence, with a non-parole period of 6 years, and 5 years and 2 months for the kidnapping offence. As already explained, those indicative sentences were the result of applying a 10% discount for the applicant’s late guilty pleas.

   75. As a consequence the starting point, a reference to the term before the application of the reduction for the plea of guilty, for the kidnapping offence must have been 5 years and 9 months (approximately) and the starting point for the head sentence for the wounding offence would have been 10 years, with a starting point for the non-parole period of 6 years and 8 months.

   76. The sentencing judge’s determination of the aggregate sentence evidences significant concurrency and reflects the view, expressed above, that the criminal offending was one course of conduct. Examining the indicative sentences, bearing in mind that the appeal is not from the indicative sentences, it does not seem, on its face, that a starting point of 5 years and 9 months for the kidnapping offence was manifestly excessive. However, a starting point of 10 years’ imprisonment as the head sentence for the wounding offence does seem stern.

   77. The Judicial Commission statistics, published as the Judicial Information Research System (JIRS), disclose that for the wounding offence a 10-year head sentence or greater was imposed upon only 6% of offenders, in a category that includes 273 such offenders. The mean sentence imposed is 5 years’ imprisonment. The foregoing does not include that small number of offenders that did not receive a full-time custodial sentence.

   78. In relation to the kidnapping offence, 90% of offenders, amongst a class of 154, had a prison sentence imposed upon them of which a 5-year sentence was the mean and 50% of the offenders were sentenced to a full-time prison sentence lower than the indicative sentence determined by the sentencing judge for the applicant.

   79. In terms of sentences imposed in other proceedings, and appeals therefrom, it seems that all or most sentences, in which imprisonment for 10 years or more has been imposed for a wounding offence of this kind, involved an offence that was significantly more serious in terms of the objective seriousness of the offence in question. All such offenders had one of the following criteria and in some cases more than one: multiple offences attracting the standard non-parole period of 7 years; permanent injury to the victim; committed in company where all offenders were armed; and were found to be above the mid-range of objective seriousness.

   80. The difficulty with comparing indicative sentences as a means of determining whether the aggregate sentence imposed was manifestly excessive is that the degree to which the sentencing judge aggregated the offences tends, in this case, to ameliorate the severity that might otherwise be found in the indicative sentence in the wounding.

   81. Nevertheless, each of the offences was determined, by the sentencing judge, to be in the mid-range of offending. Further, the sentencing judge determined that the applicant’s moral culpability was moderately reduced on account of social disadvantage. The wounding offence was very serious.

   82. Over and above the foregoing, there is the 10% discount for the plea of guilty and the special circumstances that were determined by her Honour. I am of the view that the sentence imposed is stern and not within the pattern of past sentences, but that is not the test. The pattern of past sentences, as stated, is a yardstick or check, but does not determine the “range” available. The fact, if it were the fact, that I would not impose a sentence of such severity is not sufficient to establish manifest excess or to permit intervention on appeal.

   83. Further, the level of severity in the wounding offence is ameliorated significantly by the level of notional concurrency reflected in the aggregate sentence imposed to account for both offences. I would not intervene on the basis of manifest excess.

   84. The issue of the non-parole period ratio is a different matter. It is necessary to re-sentence because of that error.

   85. The Affidavits of the applicant and the applicant’s solicitor, Gabrielle Agius, both dated 17 August 2020, were read “on the usual basis” and I have taken them into account in re-sentencing the applicant. The Affidavits disclose that during his time in custody, the applicant has obtained employment and engaged with the PIP injection program in relation to his use of prohibited drugs. They also disclose that the applicant suffers from chronic asthma and increased restrictions during the pandemic have limited his contact with his son, who has recently been diagnosed with autism spectrum disorder and developmental delay.

   86. I would accept and adopt the findings of the sentencing judge. I accept the finding of special circumstances and the need for an extended period of supervision. I also would apply a 10% discount for the utilitarian value of the applicant’s late plea of guilty.

   87. I would set the following indicative sentences:

Count 1: wound with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act1900, a starting point for the indicative head sentence of 8 years and 6 months’ imprisonment. The indicative non-parole period would be 6 years. After the reduction for the utilitarian value of the late plea of guilty, the indicative sentence would be a head sentence of 7 years and 8 months, with an indicative non-parole period of 5 years and 4 months.

Count 2: specially aggravated detain for advantage, contrary to s 86(3) of the Crimes Act 1900, a starting point for the indicative head sentence of 5 years and 6 months’ imprisonment, which, after reduction for the late plea of guilty, would be an indicative head sentence of 5 years.

88. I would impose an aggregate sentence, taking account of the 10% reduction for the late plea of guilty, of 10 years’ imprisonment, with a non-parole period of 7 years imprisonment. I take account of the accumulation that is necessary to effect the totality principle with the two previous sentences that have been imposed and which, at the time that the sentences under appeal were imposed, were being served by the applicant.

89. Those earlier sentences commenced on 30 June 2016. The non-parole period was due to expire on 29 September 2017 and the sentences were due to conclude on 29 July 2018.

90. The offences that are the subject of this appeal occurred on 22 June 2016. No party has suggested that the level of accumulation or concurrency with the pre-existing sentences was in any way inappropriate, but imposing the sentence already indicated, in the same manner as the sentencing judge, will distort the extended period of parole for which the applicant is otherwise eligible. As a consequence, I would vary the non-parole period so as to give effect to an overall ratio between the non-parole period and the head sentence of 70%.

91. In those circumstances I would propose the following orders issue:

1. Leave to appeal granted;

2. The sentence imposed on the applicant by the District Court at Campbelltown on 6 May 2019, for the offences of wound with intent to cause grievous bodily harm and specially aggravated detain for advantage, each committed on 22 June 2016, be quashed;

3. In lieu of the aforesaid sentence, the applicant be sentenced to an aggregate sentence for the offences of wound with intent to cause grievous bodily harm and specially aggravated detain for advantage, each committed on 22 June 2016, of 10 years’ imprisonment, commencing 30 May 2017 and concluding 29 May 2027, with a non-parole period of 6 years and 8 months, concluding 29 January 2024. The applicant is first eligible for release on parole on 29 January 2024.

92. PRICE J: It is evident from the judge’s sentencing remarks that her Honour comprehensively considered the objective seriousness of the applicant’s offending, his subjective case and the arguments of the parties. As to Ground 1 of the appeal, I am not persuaded that the aggregate sentence was above the range of sentences which could be justly imposed for the offences. I agree with Rothman J that Ground 1 of the appeal be dismissed.

93. As to Ground 2 of the appeal, the judge earnestly reflected on the length of the non-parole period when she stated “[n]o lesser non-parole period would address the seriousness of the offending”. However, I am persuaded that her Honour inadvertently failed to give full effect to her finding that the variation of the statutory ratio was to be 70%. I agree with Rothman J that Ground 2 has been established.

94. Taking into account the additional material admitted on re-sentence, I agree with the orders that Rothman J proposes.

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Endnotes

Decision last updated: 21 October 2020