FEDERAL COURT OF AUSTRALIA Newman v The Queen [2002] FCAFC 136 CRIMINAL LAW – appeal against sentence – sentence of ten years imprisonment imposed for aggravated burglary – sentence of eight years imprisonment imposed for inflicting actual bodily harm with intent to commit an act of indecency – non-parole period of six years imposed – early plea of guilty – whether the sentence was manifestly excessive – whether the primary judge placed insufficient weight upon the early guilty plea in determining the appropriate sentence – whether the primary judge had sufficient regard to the subjective characteristics and background of the appellant Crimes Act 1900 (ACT), s 103 (now s 94), s 92G (now s 58) Federal Court of Australia Act 1976 (Cth), s 24 House v The King (1936) 55 CLR 499, applied R v Tait (1979) 46 FLR 386, applied Lowndes v R (1999) 195 CLR 665, applied Dinsdale v The Queen (2000) 202 CLR 321, applied RAYMOND JEFF NEWMAN v THE QUEEN No A 65 of 2001 SPENDER, O'LOUGHLIN, DOWSETT JJ CANBERRA 17 MAY 2002 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 65 OF 2001 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: RAYMOND JEFF NEWMAN APPELLANT AND: THE QUEEN RESPONDENT JUDGES: SPENDER, O'LOUGHLIN, DOWSETT JJ DATE OF ORDER: 17 MAY 2002 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The sentences imposed by the Supreme Court of the Australian Capital Territory on 12 October 2001 be set aside. 3. On the count of aggravated burglary, a sentence of six years imprisonment is imposed. 4. On the count of inflicting actual bodily harm with intent to commit an act of indecency, a sentence of four years imprisonment is imposed. 5. Both sentences to commence on 22 June 2001, to be served concurrently. 6. A non-parole period of three years is imposed, to commence on 22 June 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 65 OF 2001 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: RAYMOND JEFF NEWMAN APPELLANT AND: THE QUEEN RESPONDENT JUDGES: SPENDER, O'LOUGHLIN, DOWSETT JJ DATE: 17 MAY 2002 PLACE: CANBERRA REASONS FOR JUDGMENT 1 This is an appeal from sentences imposed on the appellant of ten years imprisonment on one count of aggravated burglary and eight years imprisonment on one count of inflicting actual bodily harm with intent to commit an act of indecency. 2 On 28 August 2001 the appellant pleaded guilty in the Australian Capital Territory Magistrate's Court to one count of aggravated burglary with intent to assault, an offence contrary to s 103 (now s 94) of the Crimes Act 1900 (ACT) and one count of inflicting actual bodily harm with intent to commit an act of indecency, an offence contrary to s 92G (now s 58) of the Crimes Act 1900 (ACT), the date of the offences being 22 June 2001. The maximum penalty for the offence of aggravated burglary with intent to assault is twenty years imprisonment. The maximum penalty for the offence of inflicting actual bodily harm with intent to commit an act of indecency is twelve years imprisonment. The pleas of guilty were entered before the committal hearing proceeded in the Magistrates Court. 3 The appellant was committed for sentence to the Supreme Court of the Australian Capital Territory and was sentenced by the learned sentencing judge on 12 October 2001. On the count of aggravated burglary he was sentenced to ten years imprisonment. On the count of inflicting actual bodily harm with intent to commit an act of indecency he was sentenced to eight years imprisonment. Both sentences were to commence on 22 June 2001, the date of the offences and the date from which the appellant had been in custody. A non-parole period of six years to commence on 22 June 2001 was imposed. 4 An appeal against sentence is as of right: s 24 of the Federal Court of Australia Act 1976 (Cth). The grounds of the appeals are: (1) that the sentences were manifestly excessive; (2) that his Honour placed insufficient weight upon the early guilty plea; (3) that his Honour failed to specifically delineate the effect of the early plea of guilty on the sentence imposed; (4) that his Honour failed to have any or any sufficient regard to the subjective characteristics and background of the Appellant; (5) that his Honour placed too great a weight upon general deterrence in sentencing the appellant in the light of the appellant's psychological problems; and (6) that his Honour failed to place sufficient weight on the appellant's psychological problems as a matter of culpability as opposed to a matter relating to rehabilitation of the appellant. 5 The factual basis of the offences, as recounted by the learned sentencing judge, are not the subject of any contest on the appeal. His Honour said: "The charges relate to an incident at about 10 to 8 on the morning of Friday 22 June this year, when the [appellant] picked up what was described as a boning knife from the kitchen of his flat in Braddon, walked across the road to another block of flats and knocked on the door. At that time the complainant who was living in that flat was asleep in bed. She got up, opened the door, recognised the [appellant] as the friend of a neighbour though she had never had any dealings with him before. He asked, 'Can I have a favour? Can I ask a favour, do you have the phone on?' The complainant explained that she didn't and referred him to the flat next door. She then went back to bed. Within a minute the [appellant] knocked on the door again. This time he opened the screen door, and when the complainant opened the main door into the flat, he walked straight in and shut the door behind him. He was carrying the knife. He pushed her – the complainant to the floor, put his hand over her mouth and said, 'Quick, get your clothes off'. At this point he was pointing the knife at her. Fearing that she was about to be raped she commenced a struggle and broke free screaming for help. During the ensuing struggle she received a number of cuts from the knife. She momentarily succeeded in taking the knife from the [appellant] before he grabbed it back, and again put his hand over her mouth. She offered him money and told him that she would not scream any more. At some point he put his hand under her pyjama top touching her stomach. The occupants of another flat heard her screaming and came in. They saw the [appellant] standing over her. At that point she got up and ran out of the flat. The [appellant] walked out saying, 'I didn't do nothing, I didn't do nothing'. During the struggle, the complainant received multiple cuts to her hands and face. In particular the pad of her right ring finger was severed. The [appellant] was duly arrested and a search warrant obtained for the [appellant's] flat was executed at 9.15 am. The knife was pointed out by the [appellant] who told the police that he'd washed it because he had blood on his hands and was frightened. He also told that police that when he went to the flat he was not affected by alcohol or drugs. At one point he stated, 'I wasn't thinking anything, I just woke up, got the knife and dressed myself and walked out the door, I don't know why I just did. I didn't have any reason or motivation to do it I just done it. I don't know why. If I knew why I wouldn't have done what I'd done'. When questioned about activities in the flat, he said that he couldn't remember what had happened after he walked inside. He said that he knew the complainant only to say hello to. He did not know her name and had never been into her flat before." 6 The learned sentencing judge regarded the offences as very serious, as indeed they are. His Honour said: "From the complainant's perspective this was a terrifying and brutal incident and the victim impact statement which is being tendered in this case provides ample evidence of the legacy of fear and insecurity that it has produced. Members of our community, particularly women and children, are entitled to look to the law for protection from violent conduct of this nature, particularly when it involves intruding into a person's own home and particularly when it involves the use of a weapon as occurred in this case. This was an extremely serious incident." 7 The learned sentencing judge noted that he was obliged to have regard not only to the gravity of the offence, but also to the subjective factors concerning the appellant. His Honour noted that the appellant was twenty-five years of age when the offences were committed, he had experienced a relatively unstable childhood and adolescence, and the presentence report indicated that a lack of parental supervision at an early age contributed to him abusing alcohol from about fifteen years onward and that, in turn, had contributed to his contact with the police and court system on many occasions. The author of the presentence report concluded that the appellant was sincere in his commitment to seek treatment for his alcohol addiction and psychological issues, but that, if released into the community without suitable treatment, it was likely he would return to alcohol abuse and she thought he was at moderate risk of re-offending. 8 The trial judge noted that the appellant told the officer that he felt extremely ashamed of what he did. His Honour said: "There was other evidence before me to that effect and indeed he gave evidence on oath before me speaking of his shame and remorse. Whilst I was extremely dubious about some aspects of his evidence I accept that his expression of remorse was sincere, and that he does genuinely regret what occurred and is genuinely ashamed not only of his behaviour, but of the impact which it has had on the victim. I take that into account in his favour." 9 He had a number of previous convictions for assault, a number of which involved his former partner. The sentencing judge said: "It seems to me to be … a case in which he seeks to ameliorate the extent of his responsibility for criminal offences by reference to other factors, in some cases by reference to his wife, in some cases by reference to alcohol …" His Honour accepted that: "[H]e had a somewhat deprived background and that is a factor which should be taken into account. I also accept the evidence from Dr Lucas [a psychiatrist] to the effect that he has a history of depression going back some years, and has previously made a number of suicide attempts … it appears that he was depressed prior to the incident in question." 10 The trial judge did not accept that the appellant was significantly affected by alcohol at the time of the incident. His Honour said: "There are some further factors which must be taken into account. First he has pleaded guilty. That is an important factor in a case of this nature. A plea of guilty in any case is some evidence of remorse and in this case, as I've already indicated, there is other evidence which satisfies me that he was generally remorseful. Secondly, it has the effect, however motivated, of sparing the community the time and expense of a trial. Most importantly, in a case of this nature, it spares the victim the emotional stress of having to give evidence and, in effect, relive the incident in the witness box and be cross-examined about it in open court before a jury." 11 The sentencing judge said: "[T]his is not a case in which it is alleged that the [appellant's] intent was to commit an act of rape." And later: "The [appellant] should not be sentenced for what might have happened…" 12 His Honour said: "I've taken into account … that in a case of this kind rehabilitation should loom large in my consideration, especially having regard to the serious depressive illness from which the [appellant] suffers and the fact that he appears to be motivated to co-operate in a rehabilitative process and seek reform." 13 The basis upon which an appellate court can interfere with the exercise of a discretionary power by a judge in the court below is set out in the remarks of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505: "It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a difference course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellant court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 14 Many years later, a Full Court of this Court repeated those remarks. In R v Tait (1979) 46 FLR 386, Brennan, Deane and Gallop JJ said at 388: "An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error …" [citations omitted] 15 The application of the principles in House v The King was concisely stated by the High Court in Lowndes v R (1999) 195 CLR 665 at 671-2 in the following way: "… a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." 16 More recently, the High Court has again re-stated the requirements for a successful appeal against sentence in Dinsdale v The Queen (2000) 202 CLR 321 where at 339-40, Kirby J said (Gummow and Gaudron JJ agreeing) at [58]: "The necessity to show error … is fully accepted by courts deciding appeals against sentence … Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts." 17 Bearing the above principles guiding appellate intervention in matters of sentencing firmly in mind, in our opinion the sentences imposed in this case are plainly excessive. We find it difficult to imagine that these offences would have attracted sentences in excess of ten years and eight years, assuming no mitigating factors. 18 The learned sentencing judge correctly recognised that the sentences to be imposed should reflect the early pleas of guilty, yet it is not apparent to us that any discount at all was in fact given. The pleas of guilty should have attracted a significant discount to the sentences that might have been imposed in their absence. The sentences are such as to lead necessarily to the inference that there has been a failure properly to give recognition for the early pleas of guilty. 19 The learned sentencing judge recognised that rehabilitation should "loom large" in his consideration, "especially having regard to the serious depressive illness from which the [appellant] suffers ..." Notwithstanding that statement, it seems to us that the imposition of a non-parole period of six years involves error that justifies appellate intervention, in that the sentences imposed, including the non-parole period, fail to give sufficient weight to the rehabilitative aspect of sentencing and to the fact that, at the time of the commission of these serious offences, the appellant was suffering from a serious depressive illness. The sentences appear to us to be so excessive as to manifest error. 20 It falls to this court to exercise the sentencing discretion afresh, having regard to the serious nature of the offences, the early guilty pleas by the appellant, the subjective characteristics of the appellant and the need to structure a sentencing regime which will aid in his rehabilitation and take account of the serious depressive illness from which he suffered at the time of the offence. 21 On the count of aggravated burglary, the sentence of ten years imprisonment is set aside and in lieu thereof, we impose a sentence of eight years imprisonment. On the count of inflicting actual bodily harm with intent to commit an act of indecency, the sentence of eight years imprisonment is set aside, and in lieu thereof, a sentence of four years imprisonment is imposed. Both sentences are to commence on 22 June 2001, to be served concurrently. We fix a non-parole period of three years, to commence on 22 June 2001. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, O'Loughlin and Dowsett. Associate: Dated: 17 May 2002 Counsel for the Appellant: Mr G. Brady Solicitor for the Appellant: pappas, j – attorney Counsel for the Respondent: Mr R. Refshauge, SC Solicitor for the Respondent: ACT Director of Public Prosecutions Date of Hearing: 14 May 2002 Date of Judgment: 17 May 2002