New South Wales Court of Criminal Appeal CITATION : R v Leach [2000] NSWCCA 247 FILE NUMBER(S) : CCA 60243/99 HEARING DATE(S) : 10 July 2000 JUDGMENT DATE : 10 July 2000 PARTIES : Regina v Patrick James Leach JUDGMENT OF : Studdert J at 1; Bell J at 26 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/51/0127 LOWER COURT JUDICIAL Ducker DCJ OFFICER : COUNSEL : C.K. Maxwell QC (Crown) S.J. Odgers (Applicant) SOLICITORS : S.E. O'Connor (Crown) Burridge Harris & Flynn (Applicant) Crimes Act LEGISLATION CITED : Sentencing Act Crimes and Sentencing Procedure Act CASES CITED: House v The King 55 CLR 499 AB v The Queen 165 ALR 298 DECISION : Appeal allowed IN THE COURT OF CRIMINAL APPEAL 60243/99 STUDDERT J BELL J Monday 10 July 2000 REGINA v PATRICK JAMES LEACH JUDGMENT 1 STUDDERT J: The applicant, Patrick James Leach, seeks leave to appear against the severity of a sentence imposed by his Honour Judge Ducker in the District Court at Lismore on 5 May 1999. The applicant had pleaded guilty to an offence under s 112(3) of the Crimes Act of breaking and entering a dwelling house and maliciously inflicting grievous bodily harm on the occupant. 2 The offence was in a category of special aggravated offences under sub-s 3 of the section I have mentioned and as such was in a category that attracted a maximum penalty of twenty-five years imprisonment. The learned sentencing judge imposed an effective sentence of seven and a half years but, allowing for time spent in custody and having found special circumstances, set a minimum term of four years five months and thirteen days and an additional term of three years. 3 The applicant seeks leave to appeal on the basis that the sentence imposed was excessive and has submitted that his Honour fell into error in approaching his sentencing task upon the basis that the applicant was the principal perpetrator in the offence committed. It was submitted that this led to error in the sentencing process. 4 The judge was asked to deal with the matter upon the basis of a statement of facts which was tendered. This revealed that the applicant was one of five offenders who participated in the commission of the crime. The statement of facts revealed that there were two offenders who assaulted the victim, those offenders being the applicant and one Allan Bridges who his Honour sentenced at the same time as the applicant. 5 The offence was committed in a lonely locality at Pillar Valley on a property of about 465 acres where the victim, Dieter Sommer, conducted an engineering business. The victim was living at the end of a large manufacturing shed whilst he was building a house nearby and entrance to the living area in that shed was through metal sliding doors and then through a glass sliding door into the residence within. 6 At about 9.00 pm on Saturday 4 October 1995 the victim was lying on a couch watching television when three men, two of whom were wearing balaclavas, entered the residence, smashing the glass door. The men entered screaming and the applicant, who was one of them, sustained a severe cut to his hand when the glass door was broken by him. The applicant struck the victim to the head with his fists and the co-offender, Bridges, struck the victim on his legs with a metal torch. The victim's hands were tied behind his back and a hessian bag was placed over his head. He was struck about the head and body. Demands were made of the victim as to the location of cannabis which had attracted the offenders to the premises. The victim directed them to an area where a quantity of cannabis was contained in a drum. The victim was then half walked and half carried to the house under construction and he sustained further injury whilst being dragged across the unfinished floor. He was tied to the timber wall with his hands above his head and one of the offenders dislocated the victim's middle finger. 7 The statement of facts disclosed that the victim was injured and these injuries included a displaced fracture of the cheek, fractured ribs, a fracture of the right fibula and a dislocated finger. It was further stated that the victim had sustained a compound fracture of the skull but the judge was informed, when interrupted in the course of his remarks on sentence, that the head injury consisted of a fracture of the anterior wall of the frontal sinus. His Honour indicated that he took that into account. 8 The offenders left the victim tied up and in his injured condition, taking away with them a quantity of cannabis and a rifle belonging to the victim. The victim in due course managed to free himself and the following day was able to drive to the hospital in Grafton for treatment. 9 The above summary reveals that this was a serious crime and Mr Odgers, who appears for the applicant, has not contended to the contrary. However, Mr Odgers has submitted that the learned judge fell into error in determining that the applicant, and I quote from the remarks on sentence, was the "principal perpetrator", a conclusion expressed at p 11 of the remarks on sentence. Then at p 12 the judge expressed the opinion that the evidence pointed strongly to the applicant "having been the principal assailant and the person most likely to have caused the most serious injuries to the victim." In proceeding then to sentence both the applicant and Bridges on the basis that they were at all times parties to a joint criminal enterprise, his Honour found the applicant's involvement in the offence to be greater than that of the co-offender Bridges. The judge proceeded to give both offenders the same sentence, however, because he treated the applicant's record as giving him a favourable subjective feature not present in the case of Bridges. It seems the way his Honour expressed his remarks that although the applicant had a greater involvement in the attack than Bridges, the applicant's criminal history was not as bad as that of Bridges and hence the learned judge determined that both should be treated in the same way. In this regard I refer to what his Honour said at p16 and I quote: "Although the sentences which I propose to pass upon each man will be identical, that is not an indication that my reasoning has been identical. In relation to Mr Leach, I find his involvement was greater than that of Mr Bridges but I find that he has an entitlement to leniency by reason of his past record. The converse is true with regard to Mr Bridges, I believe his participation in the offence, particularly the violent aspects of it, was less than that of Mr Leach but his record disentitles him to leniency on that ground." 10 A psychological assessment was placed before the sentencing judge and according to the history which the psychologist took from the applicant, and this of course was evidence of the fact, the applicant told the psychologist that he had had boxing training and that he learned various forms of martial arts from the age of twenty-two. He also told the psychologist that he "crashed through the plate glass window" and "I know I hurt the bloke" with his fists. The sentencing judge was alert to what was in the report referring to his martial arts experience. The judge reflected upon the injury to the head recognising that there was no evidence to indicate exactly how that injury occurred but said: "It may perhaps be capable of being so occasioned by a person who is very experienced in martial arts." 11 However, Mr Odgers submitted that there was no basis for the conclusion, which had to be a conclusion beyond reasonable doubt, that the applicant was most likely to have caused the most serious injuries to the victim. The Crown conceded the correctness of Mr Odgers' submission. 12 In his written submissions and in his oral submissions the Crown acknowledged that on the limited evidence before the learned judge a positive finding that the applicant was the "principal perpetrator" of the violence inflicted could not be sustained. Coupled with this is the consideration that his Honour was clearly influenced by his assessment of the applicant's involvement being greater than that of his co-offender Bridges and this was material to his approach to the sentence set. 13 It is well settled that if a sentencing judge is mistaken as to the facts the appellate court is required to exercise the sentencing discretion afresh: see House v. The King 55 CLR499 at 504-505 and AB v The Queen 165 ALR 298 at 335. 14 Given that the applicant is not to be regarded as the principal perpetrator but rather as a participant in a joint enterprise who had at least equal responsibility with the co-offender sentenced, the crime was nevertheless objectively a serious one. His Honour was correct to describe the applicant's behaviour as "utterly cowardly and despicable". He was correct to describe the assault as quite "vicious and violent" but those remarks as to culpability and criminality were to be applied to both those who engaged in this physical assault. 15 It is not possible from the facts as stated and the agreed statement of facts that was before the judge to determine precisely when and how each of the various injuries which the victim sustained were received. 16 Because of the error that the learned judge made this Court has the responsibility of determining what sentence is appropriate. It seems to me that the learned sentencing judge was correct to recognise the differing criminal histories as being a feature to be taken into account in determining what sentences ought to be imposed. In the particular circumstances attached to the co-offender that the learned judge sentenced, it seems to me that the sentence that was imposed was entirely appropriate but in the case of Bridges that offender presented with a formidable criminal history. 17 Putting to one side a variety of drug offences of a minor nature and putting aside also offences of resist arrest and assault police back in 1989, that offender had been convicted in June 1991 of no less than seven counts of armed robbery for which total sentences of four years, to be served apparently concurrently with a minimum term of two years, were set. Those sentences would, of course, have expired before this offence was committed but his Honour was undoubtedly correct in perceiving that Bridges had a very much worse record than the applicant. 18 The applicant's criminal history was by comparison a very modest one. There were some driving offences back in 1976, two firearm offences in January 1977 for which the applicant was fined a total of $120, an unlicensed driver offence in February 1992 and an offence of cultivating cannabis for which he was fined $350 in 1992. 19 It seems to me that this Court should proceed to re-sentence the applicant in a manner which reflects that the applicant had a criminal history paling into significance compared with that of the man Bridges. 20 There have been placed before this Court a number of certificates which the applicant has earned whilst he has been in prison. They relate to an Anger Management Training Course, Health Information Workshop, and Drug Education and they do indicate promise towards the applicant's rehabilitation. 21 The applicant is now forty-two years of age. He has never been in prison before. The learned sentencing judge accepted, and this Court accepts, that the applicant was remorseful and that the offence that his Honour found was a "one out" episode of violence. 22 His Honour found that there were special circumstances. His Honour made that finding for the purposes of the Sentencing Act provisions. 23 Since this Court is, in my opinion, to re-sentence the applicant, any sentence now imposed would be imposed under the new sentencing procedure required by the Crimes and Sentencing Procedure Act and s 44 would apply to any such exercise undertaken by this Court. Under s 44 any non-parole period must be three-quarters of the term unless the court decides there are special circumstances for it being less. 24 In my opinion there are special circumstances for the non-parole period to be less than three-quarters of the term which I contemplate ought to have been imposed. This applicant has the need, or will have the need, for an extended period of supervision in the interests of his rehabilitation after he is released from prison at the end of what is for him the first experience of incarceration in prison. 25 I have concluded that this Court should now intervene so as to bring about an effective reduction in the total term of the sentence which was set by nine months. I would reduce the non-parole period, in substitution for the minimum term, by six months and the orders that I propose are as follows: 1. That leave to appeal be granted; 2. That the appeal be allowed and the sentence quashed; 3. That in lieu thereof the applicant be sentenced to a term of imprisonment of six years eight months and thirteen days, commencing on 2 March 1999 and expiring on 14 November 2005. I would fix a non-parole period of three years eleven months and thirteen days so that the applicant would become eligible for release on parole on 14 February 2003. 26 BELL J: I agree. 27 STUDDERT J: The orders of the court will be those I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.