Wallace, Mark Phillip v Regina

[2014] NSWCCA 54

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

WALLACE, Mark Phillip v Regina [2014] NSWCCA 54

Hearing dates:

12 February 2014

Decision date:

15 April 2014

Before:

Emmett JA at [1];
Hall J at [7];
RS Hulme AJ at [89]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW - sentence appeal - application for leave - one count of aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900 - one count of common assault contrary to s 61 of the Crimes Act 1900 - whether trial judge failed to have regard to or any proper regard to the applicant's ameliorative conduct - consideration of Thewlis v The Queen [2008] NSWCCA 176 - the sentencing judge had specific regard to the post-offence conduct of the applicant and made appropriate allowance for it, along with other subjective factors - sentence imposed by the sentencing judge was well within the range - no lesser sentence is warranted - leave granted - appeal dismissed

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Porter v The Queen [2008] NSWCCA 145
R v Ellis (1986) 6 NSWLR 603
Ruttley v R [2010] NSWCCA 118
Thewlis v The Queen [2008] NSWCCA 176

Category:

Principal judgment

Parties:

Mark Phillip Wallace (Applicant)
Regina (Respondent)

Representation:

Counsel:
KJ Averre (Applicant)
T Smith (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2011/328960

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-10-03 00:00:00

Before:

Marien SC DCJ

File Number(s):

2011/328960

Judgment

1. EMMETT JA: The applicant, Mr Mike Wallace, seeks leave to appeal against the sentence imposed by the District Court when he pleaded guilty to two charges. The first charge was breaking and entering a dwelling occupied by Mr Geoffrey Heness and then committing the serious indictable offence of destroying property by fire in circumstances of aggravation, in that he knew that Heness was present within the dwelling. That charge carries a maximum penalty of 20 years' imprisonment, with a five year standard non-parole period. The second charge was common assault of Heness. That offence carries a maximum penalty of two years' imprisonment.

1. The offences were committed after Wallace and Heness, together with a third man, Mr Ross Heideman, had consumed an unknown quantity of alcohol on the night of 14 October 2011. Heness made a number of racial comments about Mr Wallace, which created a significant amount of tension. After Heness and Wallace left Heideman, Heness continued to make racial comments about Wallace. Wallace then took hold of Heness's neck and attempted to choke him. Heness and Wallace traded blows for a short period of time, with Wallace punching Heness to the head a number of times.

1. Heness then entered his dwelling, locked the front door, went to bed and fell asleep. Early in the morning of 15 October 2011, at around 1 am, Wallace returned to the front of Heness's dwelling, punched through the glass of the front window and, using a cigarette lighter, set alight the curtains covering the front windows. Wallace then ran from the dwelling. However, a short time later, when Heness's dwelling was well alight, Wallace ran back to the dwelling. He entered the dwelling and pulled Heness out of the front door. He then fled on foot.

1. Wallace subsequently returned to the scene of the fire where he was arrested by police because he was intoxicated and was hampering the efforts of the fire brigade. Later in the day, while being transported to his residence by police, Wallace told the police that he had bashed someone, burnt his house and nearly killed him. He also made further admissions to the police.

1. In respect of the first charge, Wallace was sentenced to a term of imprisonment of five years and three months, commencing 15 October 2011, with a non-parole period of three years. In respect of the second charge, Wallace was sentenced to a fixed term of imprisonment of three months, commencing 15 October 2011. The only ground of appeal upon which Wallace seeks to rely, should leave be granted, is that the sentencing judge failed to have regard to, or any proper regard to, his ameliorative conduct in returning to Heness's dwelling and removing him from the fire.

1. I have had the advantage of reading in draft form the proposed reasons of Hall J for concluding that leave to appeal should be granted, but that the appeal should be dismissed. I agree with his Honour's conclusion, for the reasons given by him, that the sentence imposed by the sentencing judge was within the appropriate range and that no lesser sentence is warranted.

1. HALL J: The applicant, Mike Phillip Wallace, by application dated 9 September 2013 seeks leave to appeal against a sentence imposed by the District Court (his Honour Judge Marien SC) on 3 October 2012.

1. The applicant pleaded guilty to the following charges in the Local Court:

1. Aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. A 5-year standard non-parole period is prescribed for an offence under that provision.

2. Common assault contrary to s 61 of the Crimes Act 1900. The maximum penalty for an offence under that provision is 2 years.

1. The applicant was sentenced as follows:

(i) A term of imprisonment of 5 years 3 months, commencing 15 October 2011, with a non-parole period of 3 years in respect of the offence under s 112(2).

(ii) A fixed term of imprisonment of 3 months, commencing 15 October 2011, in respect of the offence under s 61.

1. The single ground of appeal upon which the applicant seeks to rely, should leave be granted, is in the following terms:

"The sentencing judge failed to have regard to, or any proper regard to, the applicant's ameliorative conduct."

Factual Matters

1. The applicant is presently 25 years of age.

1. An Agreed Statement of Facts was before the sentencing judge. The Statement recited that on 14 October 2011 a Mr Heideman returned from work to his residence at a unit block in Leeton, which consisted of 13 self-contained units in three sections. Mr Heideman resided in unit 8.

1. On returning to his unit, Mr Heideman commenced drinking beer on the verandah of his unit. A short time later he was joined by both the victim, Mr Heness, who resided in unit 12, and the applicant. The applicant resided in unit 2 of the same block of units.

1. During the evening the victim had been making a number of racial comments towards the applicant. This caused a significant amount of tension. At around 9.00pm, Mr Heideman decided to go to bed and both the victim and the applicant left Mr Heideman's unit.

1. After the applicant and the victim left the unit, the victim continued to make a number of racial comments to the applicant. As a result, the applicant walked up to the victim and a physical altercation took place between them, during which the applicant took hold of the victim's neck and attempted to choke him. The applicant and the victim traded blows for a short period of time, with the applicant punching the victim to the head a number of times.

1. The victim then entered his unit and locked the front door and fell asleep.

1. Sometime after 1.00am on 15 October 2011, the applicant returned to the victim's unit and punched through the glass front window. The applicant placed his hand inside the window and used a cigarette lighter to set alight the curtains covering the front windows. The applicant then ran away from the unit.

1. A short time later, the victim's unit was well alight and the applicant was seen by a number of witnesses to run back and into the victim's burning unit, and pull the victim out through the front door. The applicant then fled the area on foot.

1. The police and fire brigade attended the scene. However, by this time the fire had spread to the other units in that section. The fire was eventually extinguished.

1. The applicant later returned to the scene and was arrested by police due to him being intoxicated and hampering the efforts of the fire brigade. The applicant was then taken to Griffith Police Station as an intoxicated person and was released from custody once sober at about 6.00am.

1. The applicant at this stage had not been identified as the person who lit the fire. Whilst being transported to his residence by police, the applicant stated to police that he had bashed a bloke, burnt his house and nearly killed him. After this conversation, the applicant made further admissions.

1. When he arrived with the police at the unit block in question, the applicant looked over to the burnt units and said "Oh no, I'm in trouble". The applicant was then cautioned and asked questions about the fire. He made admissions that he broke the front window of the victim's unit and set alight the curtains.

1. The applicant was arrested and transported to Narrandera Police Station where he was given the opportunity to speak with the Aboriginal Legal Service. He participated in an electronically recorded interview. During this interview the applicant made full and frank admissions to being involved in an altercation with the victim, smashing the front window of the victim's unit, lighting the curtains with a cigarette lighter, running away, and a short time later returning to the location to retrieve the victim.

1. As a result of the fire, unit 12 was completely destroyed, and units 8, 9, 10, 11 and 13 were extensively damaged resulting in total repairs costs of $170,500.

1. As a result of the fire, the victim lost all of his possessions.

1. In the ERISP, the applicant said that the victim had been harassing him, and that racial comments had been made by the victim which made him angry. The applicant also admitted to being very affected by alcohol.

1. His account was that at the time he lit the curtain he knew that the only other person present in the unit block was Mr Heideman, as all the other units were not being rented at that time and were empty.

1. The applicant repeated during the ERISP that he did not intend to injure the victim when he lit the curtains. The police asked him, knowing that the victim was asleep, how he thought the victim was going to wake up. The applicant said that he thought the smoke alarm was going to wake the victim up, but it did not do so. He said he lit the curtains just to scare the victim, and that at the time he lit them he did not think the fire would have spread as much as it did.

Remarks on Sentence

1. In the Remarks on Sentence, the above facts and other matters were set out. His Honour noted that the applicant was an Aboriginal man who in evidence said that on the day of the offence he had received a telephone call from his uncle who told him that his brother had committed suicide in Alice Springs. It was later explained in the sentencing proceedings that the applicant's "brother" was in fact his cousin.

1. The applicant said that upon receiving the news he became upset and angry, he having been very close to his cousin.

1. The sentencing judge referred to the pre-sentence report dated 23 August 2012 and noted that the applicant had been raised in Alice Springs. The sentencing report noted that the applicant's mother confirmed he retained the support of his family. He is a single man with no children.

1. The sentencing judge also noted that the applicant had no criminal record in New South Wales. In the Northern Territory he had a record for minor offences including stealing, entering a building with intent, and trespass.

1. His Honour stated that, having regard to the very minor nature of the applicant's prior record, he proposed to regard him, for the purposes of sentencing, as a man of prior good character.

1. He observed that motive for committing a criminal offence is relevant in assessing its objective seriousness noting that both offences were committed by the applicant in retaliation for the highly offensive racist remarks made by the victim to the applicant. That however, his Honour stated, was not in any way an excuse for his criminal conduct.

1. His Honour also noted that in addition to the applicant's prior good character, his age and the fact that he had never come before the courts for an offence involving personal violence, the consideration of personal deterrence should be given less weight in the sentencing exercise than normally would be the case for such an offence.

1. The offences, his Honour observed, were victim-specific and arose in circumstances where the applicant was provoked by the victim and were committed as acts of revenge. His Honour noted that provocation may be a mitigating factor as it is clear from the provisions of s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999.

1. His Honour, however, stated that taking into account the fact that there was a four-hour gap between the last provocative act by the victim towards the applicant, which occurred at about the time that they had earlier parted company, and the commission of the aggravated break and enter offence, the applicant's response was wholly disproportionate to the victim's provocative conduct. His Honour stated that his motive in committing the offences, whilst it lessened to some extent his moral culpability, it did not do so to a marked degree.

1. His Honour was satisfied that the aggravated break and enter offence was aggravated by the fact that it was committed in the home of the victim: Crimes (Sentencing Procedure) Act, s 21A(2)(eb). His Honour also noted the loss or damage caused by the offence was substantial: s 21A(2)(g) and that the offence involved a grave risk of death to the victim: s 21A(2)(ib).

1. His Honour then stated:

"... However the weight to be placed on that last aggravating factor, that is the grave risk of death to the victim, is lessened to some extent by the fact that the offender very fortunately made the decision to return to retrieve the victim and pull him from his burning unit": Remarks on Sentence, p 11.

1. His Honour proceeded to state that there had been very limited planning or organisation in the offence. As a mitigating factor he accepted, for the purpose of sentencing the applicant, that he was unlikely to re-offend because of the wholly unusual circumstances in which the offences were committed and the provocation of the victim.

1. His Honour further found that the applicant was genuinely remorseful, as evidenced by his plea of guilty.

1. His Honour stated that the aggravated offence was objectively a very serious one. He accepted that the applicant did not intend to cause as much damage by the fire as actually occurred, but that the degree of his recklessness was extreme. His Honour also noted that to try to suggest to police, as the applicant did, that he only intended to burn the curtain or one portion of the victim's unit, was patently absurd: Remarks on Sentence, p 12.

1. In relation to the applicant's statement during the police interview that he only intended to scare the victim, his Honour questioned why the applicant decided to turn back to retrieve the victim from his burning unit if he really believed that.

1. The sentencing judge then proceeded to deal with what he found to be the applicant's strong subjective case. He was prepared to sentence him on the basis that he was a man of prior good character and that his conduct on the night was, as he had earlier indicated, in response to highly offensive racist remarks.

1. His Honour proceeded to make a finding of special circumstances which resulted in a variation of the statutory ratio between the total sentence and the non-parole period.

1. His Honour then addressed the relevance of the standard non-parole period which, as earlier noted, is a period of 5 years imprisonment. Reference was made to the High Court's decision in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 and proceeded to determine the sentence in accordance with the approach that the High Court has enunciated.

Applicant's Submissions

1. It was submitted that the applicant's conduct in the immediate aftermath of the commission of the offence went to more than a mere amelioration of the fact that there was a grave risk of death to the victim. It was submitted that it ought to have been taken into account as ameliorative conduct justifying a measure of leniency.

1. The submission in this respect relied upon the decision in Thewlis v The Queen [2008] NSWCCA 176. In that case, the Court considered the severity of sentences imposed for counts of maliciously inflicting grievous bodily harm and wounding with intent contrary to s 33 of the Crimes Act. Reliance was placed upon the observations of Simpson J in that case, including the following:

"... the applicant's conduct immediately following the offences, in raising the alarm, ensuring that an ambulance (and police) were called, and making prompt admissions [went to] mitigation rather than the assessment of the objective gravity of the offence": at [34].

1. Counsel for the applicant in particular referred to additional observations made by her Honour in that case at [34], [35], [37], [38] and at [39]-[42].

1. It was submitted for the applicant that his conduct in returning to the burning premises played a significant role in saving the victim from harm, and that this was one of the limited category of cases where such conduct merited mitigation of sentence. It was also submitted that the sentencing judge erred in finding that the applicant's conduct in pulling the victim from his unit simply went to mitigating the aggravating factor of a risk of death: Outline of Grounds and Submissions on Behalf of the Applicant at [34].

1. The written submissions for the applicant also addressed at some length the issues of the objective gravity of the offence under s 112(2), the seriousness of an offence of arson, and relevant aggravating and mitigating factors.

1. It was submitted that a less severe sentence was warranted at law, particularly given the lack of antecedent history of the applicant and the general subjective circumstances and the objective circumstances.

Crown's Submissions

1. The Crown's written submissions acknowledged that the established facts suggested that the applicant's post-offence conduct may have potentially played a significant role in saving the victim from physical harm or death.

1. However, even accepting that this was one of the few cases where the principle in Thewlis was applicable, the Crown's submission was that his Honour was clearly mindful of the applicant's post-offence ameliorative conduct and had acknowledged that it had a role to play in the sentencing exercise in terms of reducing the sentence that he would have otherwise imposed on the applicant: Crown's Written Submissions at [11].

1. Reference was made by the Crown to the fact that when considering the aggravating factor of the offence involving a grave risk of death to another person under s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act, his Honour found that it did involve such a risk but that the weight to be attached to it was lessened to some extent by reason of the applicant's decision to return and retrieve the victim and pull him from the burning unit.

1. It was submitted that it can only follow from this, that there was consequentially a reduction of the sentence that otherwise would have been imposed in order to reflect the ameliorative conduct. The Crown emphasised that it was clear that the sentencing judge clearly had regard to the applicant's actions following the offence and that in consequence properly reduced the sentence that would otherwise have been imposed.

1. Accordingly, the Crown submitted that the proposed ground of appeal should be dismissed.

1. Even if, contrary to its primary submissions, error was established, the Crown submitted that the Court would still need to determine whether some other sentence, less severe, was warranted in law and should have been passed.

1. The Crown noted that his Honour had accepted that the applicant had not intended to cause as much damage by the fire as had actually occurred, but that he found that the degree of recklessness involved was extreme.

1. Additionally, it was said that such a fire was inherently dangerous, a factor noted by Johnson J in Porter v The Queen [2008] NSWCCA 145 at [81].

1. Whilst the sentencing judge rejected as implausible the applicant's explanation that he only intended to scare the victim, the Crown noted that his Honour had regard to the strong subjective case of the applicant, but properly stated that he was required to impose a sentence that was proportionate to the objective seriousness of the offence. Any lesser sentence, the Crown submitted, would not have been proportionate. Particular regard, it was also submitted, had to be given to the maximum penalty of 20 years and the standard non-parole period of 5 years.

1. The Crown additionally noted that the applicant had received the benefit of the special circumstances finding and that this resulted in a substantial reduction in the statutory ratio to 57.1%.

1. Finally, the Crown pointed to a further factor favouring the applicant, namely, the concurrency of the sentences for the assault and the aggravated break and enter offences.

1. The Crown submitted that the Court would not be satisfied that a lesser sentence is warranted. If leave was granted, the Crown submitted, the appeal should be dismissed.

Consideration

1. In the consideration of the submissions of the parties it is necessary to refer to the accepted principle that immediate post-offence conduct may, in a certain limited class of case, go to ameliorate the effects of criminal conduct.

1. The principle may be stated in these terms: conduct that goes to ameliorating the effects of criminal conduct in a particular case may warrant some consideration in mitigation of sentence. This is to be distinguished from, and not confused with, mitigation of the offence: Thewlis v The Queen, supra, at [43] per Simpson J. The latter concept, her Honour observed, is concerned with the evaluation of objective gravity.

1. Simpson J concluded that in the circumstances established in Thewlis, although on an objective analysis the offender's criminality did warrant a total sentence of the magnitude imposed, to her Honour's mind, his immediate post-crime ameliorative conduct (and its significant consequences) entitled him to some reduction in the totality of those sentences: at [44].

1. The Court therefore determined that the head sentence and the non-parole period should be reduced by one year.

1. In Thewlis, the applicant had entered pleas of guilty to one count of maliciously inflicting grievous bodily harm with intent to do so, and one count of malicious wounding with an intent to cause grievous bodily harm. Each charge carried a maximum penalty of 25 years and had a prescribed non-parole period of 7 years.

1. The applicant in Thewlis, in the early hours of the day in question, entered the victim's home and repeatedly stabbed her with a knife, causing very serious injuries. After the victim lost consciousness, the applicant left the house and went immediately to the home of the next-door neighbour whom he asked to contact emergency services. He told the neighbour that he had stabbed the victim in the chest. Having ensured that an ambulance was on its way, the applicant returned to the house where the offence was committed. He stayed there until police arrived and admitted to having stabbed the victim.

1. In the course of her judgment, Simpson J observed:

"37 There is, however, one additional circumstance to which I now return. That concerns the applicant's conduct in the immediate aftermath of the attacks. In a dramatic reversal, he almost instantaneously sought the help of neighbours, disclosed what he had done, insisted on an ambulance being called, and waited until it had arrived ...it may well be that it was the applicant's conduct in so doing that ensured the prompt medical attention that possibly saved [the victim's] life."

1. It is of some importance to observe, having regard to the submissions made on behalf of the applicant, that in Thewlis the immediate post-offence conduct was not found to be a circumstance that went to the evaluation of the objective seriousness of the offences which, by that time, were complete: Simpson J at [38]. Further, her Honour observed that it was not an instance of conduct of the kind explained in R v Ellis (1986) 6 NSWLR 603 (voluntary disclosure of otherwise undetected guilt), which would warrant leniency in the sentence. It went well beyond throwing light on remorse or contrition. Her Honour further observed that, "It goes to amelioration of the effects of the applicant's criminal conduct": at [38].

1. Her Honour held that the case was an unusual one in that the offender took "immediate, almost instantaneous, steps to ameliorate the consequences of his crimes". Additionally, the steps taken by him may well have had substantial beneficial, and ameliorative effects so far as the victim was concerned: at [39].

1. Her Honour also observed that the immediate post-offence conduct was not a mitigating factor catalogued in s 21A(3) of the Crimes (Sentencing Procedure) Act. It was a particular, and unusual, circumstance which may be classed as ameliorative conduct, justifying a measure of leniency on that particular basis: at [40].

1. Ruttley v R [2010] NSWCCA 118, was a case involving a serious assault upon the victim following which the offender attended the police station and advised the constable on duty that he and another had "bashed" the victim.

1. In Ruttley, Simpson J stated that although the offender's immediate post-offence conduct was credit-worthy, and went some way to ameliorate the effects of his crimes, it did not fit neatly into the categories recognised in Ellis and Thewlis. Her Honour observed, however, that it did deserve recognition. It was indicative of the offender's appreciation of the criminality of his conduct, and perhaps of remorse. It also undoubtedly resulted in the victim being rescued and treated at an earlier time than he otherwise would have been. Her Honour noted that it was a matter that had been taken into account by the sentencing judge.

1. Her Honour finally determined that the particular ground of appeal entitled "voluntary disclosure" should have been rejected if it stood alone, but that in the circumstances of the case, it had to be taken into account with other relevant factors: at [37].

1. As observed in the submissions for the applicant, the sentencing judge determined that the lesser weight to be given to the aggravating circumstance, namely the grave risk of death to the victim, was the express basis upon which the applicant's decision to return to retrieve the victim from his burning unit was taken into account.

1. The submission was that this conduct went to more than a mere amelioration of the fact that there was a grave risk of death to the victim. It was submitted that the conduct should have been taken into account as ameliorative conduct which justified a measure of leniency in sentencing.

1. I do not, however, consider that the way in which the applicant's post-offence conduct was taken into account by the sentencing judge had any material effect on the sentencing outcome.

1. It is clear from the Remarks on Sentence that his Honour regarded the applicant's immediate post-offence conduct as a matter of importance which merited recognition, and that it be taken into account as part of the sentencing exercise. His Honour plainly did so. The particular aggravating factor to which his Honour referred in this context, namely that there was a grave risk of death to the victim, was, of course, a most serious aggravating factor.

1. In addition, his Honour also took into account all other relevant mitigating factors. These included the fact of limited planning or organisation in the offence and that it was a sudden and totally disproportionate response to the provocative conduct of the victim. His Honour also took into account the fact that the applicant was genuinely remorseful for his conduct and made full and frank admissions to police. Additionally, his Honour took into account the fact that the applicant was a man of prior good character, that he was unlikely to re-offend because of the wholly unusual circumstances in which the offences were committed, and the provocation of the victim. His Honour also brought into account that the applicant had good prospects of rehabilitation.

1. There is no challenge to the finding made, nor could there be, that the principal offence committed by the applicant was objectively very serious and occurred due to a degree of recklessness on the applicant's part which was extreme.

1. On those findings, and having regard, amongst other matters, to the objective seriousness of the offence and the fact that the maximum penalty for the aggravated break and enter offence under s 112(2) is 20 years with a prescribed standard non-parole period of 5 years, I consider that even if the sentencing judge strictly applied the approach that Simpson J stated in Thewlis should be applied, no lesser sentence would, in my assessment, be warranted than that imposed.

1. Whilst his Honour may be said to have applied the applicant's immediate post-offence conduct in the evaluation of the objective seriousness of the offence (which was not the correct approach identified by Simpson J in Thewlis at [38]) I consider that any error in this respect is immaterial to the result. It is apparent that his Honour did take into account the applicant's post-offence conduct in ultimately formulating and imposing a more lenient sentence than he otherwise would have imposed. I do not consider, in those circumstances, that any such error warrants the intervention of this Court.

1. Accordingly, even if it be accepted that appellable error is established in the approach taken by the sentencing judge, it could not, in my assessment, be considered to be one of any consequences. It is clear that the sentence imposed by the sentencing judge was well within the range and no lesser sentence is warranted.

1. Accordingly, I have concluded that there is no merit in the proposed ground of appeal.

1. The orders I propose are:

(1) That leave to appeal be granted.

(2) The appeal be dismissed.

1. RS HULME AJ: I agree with the orders proposed by Hall J.

1. Whether or not Marien SC DCJ treated the applicant's ameliorative conduct correctly, it is clear that his Honour gave it weight in mitigation of sentence.

1. I am satisfied that no sentence, less severe than that imposed, is warranted and should have been passed.

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Decision last updated: 15 April 2014