Walker v The Queen

[2016] NSWCCA 213

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Walker v R [2016] NSWCCA 213
Hearing dates:	26 September 2016
Decision date:	05 October 2016
Before:	Gleeson JA at [1]; Harrison J at [67]; Campbell J at [68]
Decision:	1   Grant leave to appeal against sentence. 2   Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – Crimes (Sentencing Procedure) Act 1999 (NSW) s 5 – whether imprisonment only appropriate penalty – where applicant entered guilty plea in 2004 to charge of maliciously inflicting grievous bodily harm – s 35(b) Crimes Act 1900 – maximum penalty 7 years imprisonment – unprovoked punch to victim requiring jaw reconstruction – where applicant failed to appear on sentence and warrant issued – where applicant apprehended by chance in 2015 and sentenced to 2 years imprisonment with 12 month non-parole period – whether primary judge considered alternatives to full-time custodial sentence – where finding by primary judge that full-time custodial sentence only appropriate option – whether primary judge considered applicant’s rehabilitation during delay in sentencing – distinction between delay arising from circumstances outside offender’s control and delay caused by offender – whether full-time custodial sentence manifestly excessive or unjust – objective seriousness of offence
Legislation Cited:	Crimes Act 1900 (NSW) s 35 Crimes (Sentencing Procedure) Act 1999 (NSW) s 5
Cases Cited:	Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Douar v R [2005] NSWCCA 455 Fedele v R [2015] NSWCCA 286 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King [1936] HCA 40; 55 CLR 499 Lambert v R [2015] NSWCCA 22 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Papworth v R [2011] NSWCCA 253 R v Foster (2001) 33 MVR 565; [2001] NSWCCA 215 R v JCE (2000)] 120 A Crim R 18; NSWCCA 498 R v Morgan (1993) 70 A Crim R 368 R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 R v Reeves [2002] NSWCCA 33 R v Shore (1992) 66 A Crim R 37 R v Todd (1982) 2 NSWLR 517 R v Wegener [1999] NSWCCA 405 R v Zamagias [2002] NSWCCA 17 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Gary Todd Walker (Applicant) Regina (Respondent)
Representation:	Counsel: G Wendler (Applicant) N Williams (Respondent)   Solicitors: John D Weller & Associates (Applicant) Solicitor for the Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2003/7453
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 11 March 2016 Before: Wells DCJ File Number(s): 2003/7453

Judgment

1. GLEESON JA: The applicant, Gary Todd Walker, pleaded guilty in the District Court at Lismore on 10 May 2004 to the offence of maliciously inflicting grievous bodily harm contrary to s 35(b) of the Crimes Act 1900 (NSW). That offence, which has now been repealed, carried a maximum penalty of 7 years imprisonment. The applicant failed to appear for sentence on 30 June 2004. A bench warrant was issued. Somewhat fortuitously, the applicant was apprehended and arrested over 11 years later in Victoria on 28 October 2015 when required to produce his drivers’ licence at a police road block. The road block was unconnected with the applicant.

2. The applicant maintained his plea of guilty when sentenced in the District Court (Wells SC DCJ) on 11 March 2016. The sentence imposed by her Honour was a non-parole period of 12 months to commence on 11 March 2016 and to expire on 10 March 2017, and a total term of 2 years to expire on 10 March 2018. The applicant seeks leave to appeal against sentence.

Facts of the offence

3. The facts of the offence are conveniently summarised in the Crown submissions. After midnight on 21 June 2003, Mr Neil Goss, the victim of the applicant’s offending, left the Australian Hotel in Ballina. He was walking with two friends. The applicant walked passed them and raised his voice. The victim turned around to see if the applicant was talking to him as he suffered from a slight hearing problem. The applicant said “do you want a shot at the title?” and punched the victim to the left side of the face. The victim was knocked off his feet so hard that he landed heavily on the footpath and struck his head. He was unconscious for between 2 and 5 minutes. He had blood coming from his mouth. The applicant walked away. The victim suffered a fractured jaw in three places which required surgical repair. Three permanent plates were inserted into the victim’s jaw.

4. When police arrived at the scene the applicant gave a false name. The applicant’s identity was later confirmed after he was conveyed to Ballina Police Station and police located his wallet. The applicant could not be interviewed because of his violent behaviour whilst in custody. While in the dock he said: “did you see me standing over him and sink the slipper? No. I just tapped him”, and then punched his fist into his palm. When informed of the victim’s condition, the applicant replied “why would I give a fuck?”

Subjective case

5. The applicant was aged 38 at the time of the offending. He is now 50. His criminal history comprised convictions for malicious injury (1987), failing to appear, stealing, assault and carrying an offensive weapon (1989), assault (1993), common assault (2002) and common assault and assault occasioning actual bodily harm (2003).

6. The applicant had a good family relationship with his parents and two sisters. He also had one half-brother and four half-sisters. His mother died in 2002. He spent most of his life in the Shoalhaven area of New South Wales. He was educated to year 7 at Nowra High School. He had a varied and constant work history including working as a ceramic tiler, water proofer, motor mechanic and as a shearer. At the time of sentence he was working as a truck driver for a local transport company in Victoria. He relied upon 15 character references to the effect that he was a decent, hard-working family man, including from the Principal of Porepunkah Primary School in Victoria, stating that he was a valued member of the school and wider community groups.

7. The applicant commenced a relationship with his current partner in 2004. They have two children aged 10 and 9 years. His daughter has a medical condition, neurofibromatosis, a genetic disorder affecting the skin, eyes and nerves, and required medical care. The applicant moved with his family, together with his father to Eurobin, a small town in North-east Victoria in 2010. The applicant married his partner in December 2015.

8. In his report dated 30 November 2015, Mr Byles of Wangaratta Community Correctional Services, recorded the applicant’s account that at the time of the offence he was drinking heavily and he had very little recollection of the offence. He had never met the victim before and was unable to offer an explanation for the assault. The applicant reported that he had never used illicit drugs but that, after his mother’s death in 2002, he began using a combination of antidepressants and alcohol to cope with her loss. At the time of his offending he was binge-drinking regularly.

9. The applicant also reported that he gave up alcohol and had not drunk since the subject offence in 2003. Other than charges for two offences in Queensland in 2008, referred to below, the evidence did not disclose any other offences committed since the subject offence in 2003.

Proceedings on sentence

10. The proceedings on sentence commenced on 2 March 2016, continued briefly on 4 March 2016, and concluded on 11 March 2016. The Crown tendered records from Queensland to indicate that a “William Walker” was facing a warrant for offences of assault occasioning actual bodily harm and drunk or disorderly conduct; those offences were alleged to have been committed on 24 April 2008. The person known as “William Walker” had absconded on 2 May 2008 and a warrant for his arrest was issued by the Magistrates Court at Southport in Queensland.

11. The applicant gave evidence and was cross-examined on 2 March 2016. He said that he did not recall any part of the incident on 21 June 2003; he had not had a drink since that day; he had no specific recollection of his earlier criminal history involving matters of assault; and he had not committed any other criminal offence in Australia since the incident in Ballina in June 2003. He agreed in cross-examination that he knew before the sentence hearing on 30 June 2004 that there was a very good chance that he would be given a gaol sentence; he said that he had failed to appear on sentence because of a mix-up of the dates, and that when he attended court the day after, he panicked and then went to Queensland. Later, the applicant lived in Western Australia, Tasmania, and the Northern Territory, before moving to a small country town in Victoria in 2010 with his partner, their two children, and the applicant’s father.

12. The applicant’s counsel accepted in argument that, in normal circumstances, the sentencing judge would consider a full-time custodial sentence, but submitted that the judge should consider, as an alternative to a full-time custodial sentence, either a suspended sentence or a community service order of an appropriate length. As to the latter course, no submission was made by the applicant’s counsel that the court should refer the applicant for assessment as to his suitability for community service work: s 88 Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act).

13. On the second day of the hearing, 4 March 2016, the Crown tendered a warrant document in respect of a “William Walker” whose birth date was stated as 8 November 1964. (The applicant’s date of birth is 8 November 1965). The applicant’s counsel informed the judge that his instructions were that “we know nothing about it”. The judge stated that she had carefully looked at the material and was in a position to deliver sentence, but was concerned to clarify the position in relation to the Queensland charges which were outstanding. The judge indicated her view as to the appropriate sentence, taking into account the applicant’s family circumstances. This was that the only appropriate sentence was one of full-time custody. The proceedings were adjourned and the applicant was remanded in custody while further enquiries were made in relation to the Queensland offences.

14. On 11 March 2016, the applicant gave evidence and was cross-examined in relation to the Queensland offences. The applicant said that on 24 April 2008 he was working at Southport in Queensland, that he had got into some trouble and had been thrown through a shopfront window and ended up in the watch house. He said that he had failed to previously mention the Queensland offences because he had “totally blocked that out of his mind”. In cross-examination, the applicant admitted that he had given instructions to his counsel on the previous occasion that the photograph of “William Walker” in the Crown tender bundle was not of him. He said that, after discussing the matter with his wife, she had reminded him of what he had previously told her had happened on Anzac Day in 2008. He claimed not to know that he was given bail the following day, asserting that he was concussed.

15. In answer to her Honour’s questions, the applicant admitted having three beers at dinner on the night of Anzac Day 2008. He conceded that his earlier evidence that he had never drunk alcohol since the 2003 offence was incorrect. He claimed that he did not know that he was required to attend court in relation to the Queensland offences because he did not believe that anything had happened except that he had been thrown through a window.

16. The applicant’s solicitor made a submission on 11 March 2016 that the applicant had made a “fairly amateur effort” to conceal his real identity when charged with the Queensland offences by giving a different birth date and Christian name. No further submissions were made on behalf of the applicant concerning any alternative to a full-time custodial sentence.

The judge’s reasons

17. After referring to the maximum penalty of 7 years imprisonment, the sentencing judge found that the facts disclosed an objectively serious offence (ROS 1.2). Her Honour found that the attack was unprovoked. Further, apart from striking the victim, the applicant’s behaviour upon his arrest was one of continued aggression and violence (ROS 4.4).

18. The judge referred to the references that attested to the applicant’s good character and the voluntary work that he has done around the community in Victoria where he now lives. Those references spoke very highly of the applicant and her Honour observed that it did not seem to reflect the unlawful conduct that the applicant had engaged in over the years (ROS 3.6). This was a reference to the applicant’s prior convictions (ROS 3.8). Her Honour determined that no weight could be given to the applicant’s honesty or reliability in regard to those prior offences and the matter in Queensland, nor the reason for his failure to appear for those offences (ROS 4.3).

19. The judge considered that the applicant’s conduct in Queensland in 2008 demonstrated a failure by him to own up to his responsibilities and also “slightly undermines the efforts he has made to rehabilitate himself since the commission of this offence or his failure to appear in 2004” (ROS 4.4).

20. Nonetheless, her Honour took account of the fact that the applicant had taken extensive steps in the right direction to rehabilitate himself, stating that the applicant “has behaved himself for the greater part of his mature years” (ROS 4.3). Her Honour found that the applicant was unlikely to reoffend (ROS 5.5).

21. The judge found that it would not be appropriate to make any finding of leniency because of delay in the sentencing process. Her Honour said:

It would not be appropriate to make a finding of any leniency because of the delay. The delay has been entirely brought about by his failure to appear, though it has afforded him the opportunity to rehabilitate himself and demonstrate that perhaps at this stage of his life he is unlikely to reoffend. (ROS 5.7)

22. The judge expressed her conclusion on sentence as follows:

In considering the appropriate penalty, bearing in mind the maximum sentence and the principles that the court must give weight to, the only appropriate sentence is one of full time custody. (ROS 5.6)

23. The judge allowed a 25% discount for the utilitarian value of the plea of guilty although the plea could not, in the circumstances, be seen as a demonstration of remorse.

24. After finding special circumstances on the grounds of the applicant’s family responsibilities and that it would be his first time in custody (ROS 5.9 - 6.1), her Honour imposed the sentence indicated.

Proposed grounds of appeal

25. The applicant raised three grounds which are closely connected and relate to the availability of alternatives to a term of imprisonment to be served full-time. Ground 1 asserts that her Honour failed to apply the mandate in s 5 of the Sentencing Act. Ground 2 asserts that her Honour erred by not affording the applicant some modest leniency because of delay in sentencing. Ground 3 asserts that the sentence is manifestly excessive.

Ground 1 – s 5 of the Sentencing Act

26. Section 5 of the Sentencing Act provides:

5 Penalties of imprisonment

(1)   A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

(2)   A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including:

(a)   its reasons for deciding that no penalty other than imprisonment is appropriate, and

(b)   its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).

(3)   Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4)   A sentence of imprisonment is not invalidated by a failure to comply with this section.

(5)   Subject to sections 12 and 99, Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order or home detention order.

27. This provision required the sentencing judge to determine whether no penalty other than imprisonment was appropriate. The term “imprisonment” includes a suspended sentence under s 12 of the Sentencing Act: R v JCE (2000) 120 A Crim R 18; NSWCCA 498 at [15]; R v Zamagias [2002] NSWCCA 17 (Zamagias) at [25]. An intensive correction order is also a means of serving a sentence of imprisonment: s 7 of the Sentencing Act, as is home detention: s 6. Those provisions are found in Div 2 of Pt 2 of the Sentencing Act dealing with “Custodial Sentences”. That is also apparent from s 5(5) of the Sentencing Act.

28. The power to suspend a sentence is confined to sentences of 2 years or less: s 12(1) of the Sentencing Act, as is the power to make a sentence the subject of an intensive correction order: s 7(1). With respect to home detention, the power is confined to sentences of imprisonment of 18 months or less.

29. The power to impose a community service order is found in Div 3, Pt 2 of the Sentencing Act dealing with “Non-Custodial Alternatives”. A community service order is not a sentence of imprisonment. So much is apparent from its inclusion in Div 3, Pt 2 of the Sentencing Act and terms of s 8(1) of the Sentencing Act, which provides:

Instead of imposing a sentence of imprisonment on an offender, a court may make a community service order directing the offender to perform community service work for a specified number of hours.

30. A community service order cannot be made unless the offender is found suitable after assessment by a probation and parole officer: s 86(4) Sentencing Act.

31. The applicant submitted that the sentencing judge erred by not following the two-step process identified in Douar v R [2005] NSWCCA 455 (Douar v R) of first, determining that imprisonment should be imposed and what the term of the imprisonment should be, and secondly, determining whether any alternative to full-time custody should be utilised. It was submitted that her Honour followed a one-step process by concluding immediately that full-time custody was the only appropriate remedy. It was argued that her Honour failed to consider how the imprisonment should be served i.e. on a full-time basis or by some alternative means, given the length and structure of the sentence. It was submitted in this Court that the relevant alternatives were either a suspended sentence or an intensive correction order. No submission was made in this Court that the sentencing judge failed to consider whether a community service order was an appropriate alternative to a sentence of imprisonment.

32. The Crown submitted that her Honour’s remarks, including her finding that the only appropriate sentence is one of full-time custody, should be seen in the context of the judge having considered the various options available, and also being mindful of the need for the sentence to reflect the objective criminality of the offending behaviour and general deterrence.

33. The Crown emphasised that, on 4 March 2016, the judge had indicated her preliminary view that the only appropriate sentence was one of full-time custody (this being in response to the applicant’s submissions on 2 March 2016 that an alternative to full-time custody would be appropriate), and that no further submission had been advanced on behalf of the applicant on 11 March 2016 regarding the sentence that should be imposed.

Decision

34. The proper approach to determining a sentence comprising a period of full-time imprisonment is well-established. In Douar v R, concerning periodic detention, Johnson J (McClellan CJ at CL and Adams J agreeing) referred to earlier decisions in R v Wegener [1999] NSWCCA 405, a case concerning periodic detention, and R v Foster (2001) 33 MVR 565; [2001] NSWCCA 215 (Foster) and Zamagias, which were concerned with suspended sentences.

35. Johnson J noted that while the authorities speak of a two-stage process it was preferable to identify a three-stage process in passing a sentence of imprisonment to be served, in that case, by way of periodic detention. His Honour observed that each step required the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but that it is the first of those considerations that will principally determine which of the available sentencing alternatives the Court should adopt.

36. His Honour summarised the position (at [70] – [72]) as follows:

[70] The first question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 prohibits a Court from imposing a sentence of imprisonment unless the Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. At this stage in the process, the only consideration is whether a sentence of imprisonment should be imposed, and not the manner in which that sentence of imprisonment is to be served: Zamagias at paragraph 25.

[71]   The second step is reached where the Court has determined that no penalty is appropriate other than a sentence of imprisonment. The Court is next to determine what the term of that sentence should be. This has been regarded as the first step of a two-step approach: Foster at paragraph 30; Zamagias at paragraph 26. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention: Wegener at paragraph 22; Zamagias at paragraph 26.

[72]   The third stage is reached once the length of the sentence of imprisonment has been determined. The Court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined, subject to the restrictions or preconditions imposed by the legislature on a particular sentencing alternative. The appropriateness of an alternative to full-time custody will depend upon a number of factors; one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment. The Court in choosing an alternative to full-time custody cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment: Zamagias at paragraph 28.

37. The applicant’s complaint is directed to the second and third steps. Importantly, Johnson J observed (at [74]) that it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed. That was acknowledged in Foster at [33] and Zamagias at [30]. See also Fedele v R [2015] NSWCCA 286 at [44]. However, the earlier observation by Johnson J in Douar v R (at [63]) is to be kept in mind:

However, the nature of the sentence imposed, and the failure to record that a two-stage approach has been taken, may lead the Court to examine carefully the findings made by the sentencing Judge to determine whether the sentence is erroneous: Foster at [35]; Zamagias at [30].

38. In the present case, the sentencing judge’s remarks were brief, having been delivered ex tempore. Nevertheless, on a fair reading of those remarks it should be accepted that her Honour undertook the proper two-stage (or, more accurately, three-stage) approach to sentencing. Consistent with the preliminary indication given on 4 March 2016, her Honour ruled out any other possibility to full-time imprisonment by determining that the only appropriate sentence was one of full-time custody. Her Honour is to be taken as having rejected the applicant’s submissions that either a suspended sentence or a non-custodial sentence involving a community service order was appropriate.

39. The basis on which the judge was not satisfied that any penalty other than a full-time custodial sentence was appropriate, is clear from her Honour’s findings and earlier remarks. The offence was objectively serious: the offender punched the victim with considerable force, the victim offered no resistance and had no opportunity to defend himself, the victim suffered a serious jaw injury which could have been far more damaging, the incident was entirely unprovoked and was consistent with the significant difficulty the applicant had at that time in controlling his aggression and anger.

40. The findings of the judge amply support the conclusion the only appropriate sentence was one of full-time custody. The failure of the judge to record that a two-stage process had been undertaken (1) in determining the term of imprisonment and whether any alternative to full-time imprisonment was available in respect of that term; and (2) whether any available alternative should be utilised, does not demonstrate a failure to carry out the sentencing exercise in the manner required by s 5 of the Sentencing Act: Douar v R at [74].

41. Of the two alternatives to full-time imprisonment referred to by the applicant in this Court, only one – a suspended sentence – had been advanced before her Honour. That her Honour did not consider it appropriate to utilise a suspended sentence is clear from her earlier remarks concerning the seriousness of the offence. As to the other, an intensive correction order, the applicant’s criticism of the sentencing judge for not expressly referring to consider it as an alternative to full-time imprisonment is unfair: no such submission was advanced before the judge.

42. It is not surprising that the applicant made no such submission before the sentencing judge. The applicant’s case was that he had taken extensive steps towards rehabilitation between June 2004 and March 2016. Although the availability of an intensive correction order is not limited to offenders shown to be in need of intensive rehabilitation, as Simpson J explained in Lambert v R [2015] NSWCCA 22 at [42] (Ward JA and Davies J agreeing):

Analysis of the incidents and requirements of intensive correction orders demonstrates that the intention of the legislature was to provide a more intense regime of supervision to offenders deemed suitable than is ordinarily the case where the offender is subject to the supervision of the Probation and Parole Service. Although (as I must) I loyally accept that the availability of intensive correction orders is not limited, as I had previously held (see R v Boughen; R v Cameron [2012] NSWCCA 17; 215 A Crim R 476; R v Zerafa [2012] NSWSC 978) to offenders shown to be in need of intensive rehabilitation (see Pogson, Lapham and Martin) it is nevertheless clear that enhanced rehabilitation is one consequence of such orders.

43. In R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225, McClellan CJ and Johnson J (Price, RA Hulme and Button JJ agreeing) observed (at [68]) “[i]t is apparent that the legislative scheme for ICOs emphasises the availability of this option to assist in the rehabilitation of an offender.” It was not the applicant’s case before her Honour that enhanced rehabilitation was either necessary or appropriate. Her Honour should be taken to have proceeded on the basis, consistently with the absence of any submission by the applicant, that an intensive correction order was not an appropriate alternative in the present case.

44. Ground 1 has not been established.

Ground 2 – sentencing judge erred by finding that it would not be appropriate to make any finding of leniency because of delay.

45. The applicant submitted that the sentencing judge erred in not allowing some modest leniency because of delay in the sentencing process. It was argued that, by not allowing such, her Honour treated the applicant’s rehabilitation over the 12-year period as being of no value, because it had been manufactured by reason of the applicant’s absconding and delaying the sentencing process that should have taken place many years earlier.

46. The applicant submitted that the “ironic” effect of the delay in sentencing in the present case was that it had a beneficial effect by reason of the rehabilitation of the applicant during that period. Reference was made to R v Todd (1982) 2 NSWLR 517; R v Shore (1992) 66 A Crim R 37 (Shore) at 47.

Decision

47. There is no merit in this asserted error. The sentencing judge properly distinguished between cases where delay occurs because of circumstances outside of the offender’s control, and those where it is the offender’s actions that cause the delay.

48. Although the delay in sentencing was attributed to the applicant absconding, her Honour took into account the evidence of the applicant’s rehabilitation up to the date sentence was imposed. Her Honour’s approach was consistent with authority. In Shore, at 38, Mahoney JA said:

In considering the effect of delay where an offender has absconded pending trial or conviction the court will no doubt take into account what has been shown by what has occurred during the period of the delay.

49. Mahoney JA accepted that this will include events which have occurred demonstrating that the offender had repented of his offence, or at least had decided he would not commit another.

50. In R v Reeves [2002] NSWCCA 33 this Court considered the relevance of delay occasioned by the offender’s conduct and said (at [13]):

It is true a clear distinction needs to be drawn between cases where delay occurs because of circumstances entirely outside the offender's control, and cases such as the present where it is the offender's decision to abscond that occasions the delay. To allow leniency on account of delay alone could hardly be said to further the public interest. Nevertheless it is appropriate for a sentencing judge to give attention to the fact that a person living as a fugitive will always be fearful of apprehension. Nor is evidence of genuine rehabilitation during the relevant period to be entirely ignored. See R v Shore (1992) 66 A Crim R 37. In the present case there were some indicators of genuine rehabilitation at least in the period between when the applicant absconded and her appearance before Judge Kirkham.

51. On one view, the delay in the present case advantaged the applicant. In the ordinary course if the applicant had not absconded, a judge sentencing the applicant in June 2004 would have considered, among other things, whether the applicant would rehabilitate himself. It would have required the judge to speculate or form a judgment in that regard: Shore, at 37. Here, however, because the applicant absconded and sentence was delayed for 12 years, he was able to point to the events which have occurred which, as her Honour acknowledged, except for the Queensland offences in 2008, demonstrated that the applicant had taken extensive steps in the right direction to rehabilitate himself. Her Honour took those indicators of genuine rehabilitation into account. No error in her Honour’s reasons has been demonstrated.

52. Ground 2 has not been established.

Ground 3 – manifest excess

53. This ground is related to ground 1. The applicant submitted that, given his age, character and antecedents, it was unjust to impose a sentence of immediate full-time custody and that some other, less severe sentence should have been imposed.

54. A submission that a sentence is excessive (or inadequate) derives from the last kind of error identified in House v The King [1936] HCA 40; 55 CLR 499, 505. To make good this ground, the applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale v The Queen) at [6].

55. As has been frequently stated, the task is not for this Court to decide whether it would have exercised its discretion differently: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen at [57]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]. The relevant question on appeal is whether the sentence is within a proper range: R v Morgan (1993) 70 A Crim R 368, 371 (Hunt CJ at CL); Papworth v R [2011] NSWCCA 253 at [54] (Hoeben J (as his Honour then was); Whealy JA and Simpson J agreeing).

56. In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili v The Queen) at [54]-[55], the High Court reiterated the limits on the value of statistics and previously decided cases in the sentencing process. Intervention on the ground that a sentence is manifestly excessive is not warranted simply because the sentence is markedly different from other sentences that have been imposed in other cases: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 (Wong) at [58]; Hili v The Queen at [59]. Intervention is warranted only where error is established in accordance with the principles in House v The King: Wong, Hili v The Queen at [59].

57. Counsel for the applicant submitted that at the time the applicant stood for sentence in March 2016 he was a vastly different person to the person who, inebriated and unprovoked, assaulted the victim outside the Ballina Hotel in June 2003. Counsel referred to the numerous character references before the primary judge as evidence that the applicant is regarded as an excellent and responsible worker, and has a significant history of voluntary community work. It was submitted that the applicant’s criminal history appears to have been born out of excessive alcohol consumption.

58. Reference was also made to the recommendation in the pre-sentence report which was before her Honour, that the applicant “appears to have made significant positive changes to his life and is therefore considered suitable for a community-based disposition”.

59. The Crown submitted that the sentence imposed was not unreasonable or unjust taking into account the seriousness of the offending; that that the judge’s general approach to special circumstances resulted in an overall ratio of just 50%; that the applicant received a 25% discount for the guilty plea notwithstanding the judge determined that it could not be seen as a demonstration of remorse; and that the applicant had many prior convictions for similar offences.

60. The Crown further submitted that the Judicial Commission statistics were of limited utility in that they only related to 15 cases. It is unnecessary to consider any of those cases as no reliance was placed on the statistics by counsel for the applicant.

Decision

61. Taking into account the notional starting point in this case of 2 years and 6 months, the actual sentence imposed on the applicant was relatively lenient. I do not regard that notional starting point as necessarily and obviously excessive on the facts of this case. Nor do I regard the resultant sentence as manifestly excessive.

62. As mentioned, the applicant’s offending involved a serious and unprovoked attack. The seriousness of the offending is informed by the applicable maximum penalty – 7 years imprisonment. The applicant had a prior history of offences involving physical violence, albeit that that offending was in the relatively distant past at the time of sentence. The applicant’s response at the time of his arrest demonstrated that he had no consideration for the victim. His failure to appear on sentence on 30 June 2004 reflected an inability to face the consequences of his actions. That inability continued for a further 11 years until his arrest in Victoria which was fortuitous. The judge was correct to find that the applicant has not demonstrated any remorse for his actions. The judge appropriately emphasised that the outcome of the applicant’s offending was extremely serious and could result in severe consequences for both the offender and the victim. Here, the victim was left with three permanent plates inserted into his jaw.

63. The judge carefully balanced the objective circumstances of the offending and the applicant’s relatively strong subjective case, albeit that the indicators of genuine rehabilitation were weakened by the absence of remorse and the applicant’s failure to appear on sentence in June 2004 and again in 2008 in relation to the Queensland offences.

64. There is no single correct sentence. In the circumstances of the present case, I am not persuaded that her Honour fell into error by not imposing an alternative sentence to full-time imprisonment. A suspended sentence would have been overly lenient. An intensive correction order was not appropriate taking into account the way in which the applicant put his case, including that no such order had been sought by the applicant.

65. The sentence of 2 years with a non-parole period of 12 months appropriately reflected the need for general deterrence, specific deterrence and the protection of the community balanced against the evidence of the applicant’s rehabilitation. In my view, the sentence imposed by her Honour was not unreasonable or plainly unjust. Ground 3 is not made out.

66. Accordingly I propose the following orders:

1   Grant leave to appeal against sentence.

2   Appeal dismissed.

67. HARRISON J: I agree with Gleeson JA.

68. CAMPBELL J: I agree with Gleeson JA.

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Amendments

17 November 2016 - Formatting.

Decision last updated: 17 November 2016