Regina v France [1999] NSWCCA 428

New South Wales Court of Criminal Appeal CITATION : Regina v France [1999] NSWCCA 428 FILE NUMBER(S) : CCA 60810/98 HEARING DATE(S) : 29 October 1999 JUDGMENT DATE : 29 October 1999

PARTIES : REGINA v Darren John FRANCE JUDGMENT OF : Simpson J at 1; Kirby J at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/41/0109 LOWER COURT JUDICIAL OFFICER : Twigg DCJ

COUNSEL : P G Berman - Crown R Burgess - Applicant SOLICITORS : S E O'Connor - Crown T A Murphy - Applicant CATCHWORDS : ACTS CITED : Crimes Act 1900 DECISION : Leave to appeal granted; the appeal allowed and the sentence quashed; in lieu thereof the applicant be sentenced to a total term of penal servitude for three and a half years made up of a minimum term of one year and nine months commencing on 20 April 1998 and expiring on 19 January 2000 and an additional term of one year and nine months commencing on 20 January 2000 and expiring on 19 October 2001.

IN THE COURT OF CRIMINAL APPEAL 60810/98

SIMPSON J KIRBY J

29 October 1999

REGINA v Darren John FRANCE Judgment

SIMPSON J :

1 The applicant seeks leave to appeal a sentence imposed on him by Twigg DCJ on 11 December 1998 following his plea of guilty to a charge of malicious wounding. By s.35(a) of the Crimes Act 1900 the legislature has provided a maximum penalty of penal servitude for seven years for such an offence. Twigg DCJ sentenced the applicant to a total term of penal servitude for five years. Having found that special circumstances within the meaning of s.5(2) of the Sentencing Act 1989 existed, his Honour divided the sentence into equal minimum and conditional terms each of two and a half years. Although the sentence was imposed on 11 December 1998 he specified that it was to commence on 21 April of that year; the minimum term accordingly will expire on 20 October 2000. 2 His Honour took this course because the applicant had, on 21 April, been sentenced on unrelated offences. I say unrelated offences although there has been a large number of such offences and they occurred both before and after the date of this offence. It is obvious from looking at the material provided to this court in relation to those offences that the applicant was engaged in a constant course of criminal activity from about November 1997 until April 1998. The net effect of the sentences imposed on 21 April in the local court was to entitle the applicant to release on parole on 19 July 1999. The practical effect of Twigg DCJ's orders was to impose a further minimum term, referrable solely to the present offence, of fifteen months. 3 This offence was committed on 5 December 1997. On that day at about 2.30pm the applicant telephoned his girlfriend from a public phone box and became engaged in a loud argument with her. He was heard to be swearing loudly and was observed to be hitting the handset of the telephone against the side of the kiosk, and to kick at an advertising stand nearby. The proprietor of a nearby video store, the victim of this offence, a Mr Kenneth Davies, told the applicant to lower his voice and modify his language and this prompted the applicant to drop the telephone and walk towards him. Precisely what happened next is a matter of some dispute. It was common ground that the applicant was in possession of a knife, although he maintained that it was contained in a scabbard and was concealed in his clothing. When I say concealed in his clothing, there was no sinister intention suggested in relation to that disposition of the knife. The applicant maintained also that at no time did he produce the knife but that it did fall from him at some time during the altercation that occurred with Mr Davies. Mr Davies was later able to give an accurate description of the knife including a description of its blade. He at no time suggested that the applicant directed the blade of the knife towards him but said that he was struck in the left eye either by the applicant's hand or by the butt of the knife. Whatever was the cause, he suffered an injury to his left temple which caused it to bleed apparently quite profusely and in relation to which he subsequently obtained medical attention. 4 The applicant left the scene. However, two days later, on 7 December, he presented himself to police, knowing that he had been identified and was being sought by them in relation to the offence. He participated in a lengthy interview in which he admitted to having been involved in the altercation but, in relevant respects, he gave a different version of what had happened. However, he did acknowledge possession of the knife and acknowledged an assault upon Mr Davies. He gave an explanation for possession of the knife which has not been challenged. 5 It will be necessary to return to the disputed question of facts shortly. 6 The applicant was born on 4 April 1978. He was nineteen years of age at the time of the offence. He had a criminal record which commenced when he was sixteen years of age and included a large number of offences associated with the use of motor vehicles in one way or another, some drug offences and, up to April 1998, only one offence of dishonesty, of larceny, in 1995. The other offences in respect of which he was sentenced on 21 April 1998 included receiving stolen property, break enter and steal and having house-breaking implements in possession, assault occasioning actual bodily harm, drug offences and motor vehicle offences, some of which were quite serious. 7 Prior to April 1998 no custodial sentence had been imposed upon him. 8 No pre-sentence report was prepared for the court. However, there was a good deal of subjective material. The applicant gave evidence. He said that his parents had separated when he was two years old and he had had no contact with his father until the age of eleven. Thereafter he had apparently had reasonably regular contact with him. He has a sister and two brothers, two of whom have had encounters with the law although the extent of their unlawful behaviour was not at all clear. He left school at the age of fourteen years and nine months and had two short-term jobs thereafter, but had been largely unemployed. He had used alcohol excessively from about fifteen years of age but said that he had overcome this habit after a rehabilitation course at the age of seventeen. He had, however, used illegal drugs, including cannabis, amphetamines, heroin and LSD. He frankly told the judge that he funded this use through crime. He said that he was affected by such drugs at the time of the present offence. 9 The applicant's evidence was given on 30 November 1998. By that date he had been in custody, following the earlier sentencing, since 21 April, a period of seven months. He said that he had undertaken some drug and alcohol courses whilst in custody, but, following what he called "a few dramas" with other inmates, he had asked to be held in protective custody and this had affected his capacity to engage in employment in custody and participate in the programmes that otherwise would have been available to him. 10 He described the circumstances of protective custody at Parklea Gaol. He said that he was held in a "7 by 5 cell" all day, being released once during the afternoon for five to ten minutes for the purpose of obtaining meals. There was no area for socialising with others. He had been also held at Bathurst Gaol for a relatively short time, without the opportunity of undertaking any rehabilitative courses, and also at Junee. In more recent times he had had the opportunity of undertaking such courses and he had done so. While he was held in country gaols it was not possible for his family to visit him. He had seen the prison psychologist as a result of depression of such severity that on three occasions he had exhibited suicidal tendencies and had been held in what he had described as "a dry cell" under observation, on one occasion for a period of three weeks. 11 He acknowledged that he needed assistance with his use of amphetamines which he said had "been getting out of hand". 12 A great deal of medical material from Corrections Health Service was placed before his Honour. It is unnecessary to go into the detail of this material; it tends to support the applicant's evidence about his history. 13 In his remarks on sentence the judge carefully outlined the applicant's recent criminal history, and the facts of the offence, and the subjective features. He specifically took into account a number of factors which he listed. 14 There were three matters argued on the appeal and this brings me back to the factual dispute to which I have already alluded. This concerned the conflict between the account given by the victim and the account given by the applicant and the manner in which his Honour approached the resolution of that conflict. The victim was not called to give evidence and his account was given by the statement he made to police. In that statement he said: "He started to push me in the belly with his hand. I then saw him reach around behind his back with his right hand. I had a feeling that he was going to pull a knife on me. I then saw that he had a knife in his right hand. He was holding it so the butt of the knife was towards me, and I could see the blade of the knife sticking out from behind his hand... ...I was struck in the face near my left eye by his right hand. I'm not sure whether it was his hand or the butt of the knife that struck me, but as he did so, I heard the sound of the knife falling on the concrete..." When interviewed the applicant said, inter alia: "I've just like poked him in the belly and pushed away from him...I don't know whether he's slapped me with both hands, like that across the head or whether he's just hit me with one hand...when he's done that and hit me I just like dropped to the ground sort of, like to a knee, one knee, that's when the knife, that's, like before everyone here now, that was in the back of me track suit pants, it wasn't on any belt or anything, it was in between me track suit pants and a bum bag that I had on. When I've fallen down that's when the knife has fallen out and that was right near the telephone booth in front of the newsagency. That's dropped out..." 15 Later, he again denied attacking the victim with a knife and repeated that it had fallen from the back of his track suit pants. Indeed, the applicant said that it was the fact that he learned of the allegation that he had used a knife that prompted him to surrender himself to police in order to set the record straight. 16 His Honour said the applicant gave evidence in the sentencing proceedings but when he was asked about the details of the occurrence the sentencing judge intervened and asked if the purpose of the questioning was to establish some dispute on the facts, or variation of the facts. Counsel for the applicant disclaimed any intention to establish a variation. His Honour said: "Well the Prosecutor may want to call Mr Davies. You will have to be careful what you do. I mean he is giving his explanation and I have got it down in the ERISP. This is a change for me. I do not know that you can on a plea give a whole new version." 17 Counsel again disclaimed any intention to give a new version and then proceeded to question the applicant about other matters. There the evidence of the role played by the knife ended. I repeat, however, that the knife itself corresponded with the description given by Mr Davies of the knife and this fact was put to the applicant during the course of the interview by police. 18 In finding the facts the judge said: "The prisoner began to push Davies in the belly with his hand and then took a knife from behind his back. This knife was silver with a brown handle and about six inches long. The prisoner held it so that the butt of the knife was pointing towards Davies. Feeling that he might be stabbed Davies tries to protect himself. The prisoner struck Davies either with the butt of the knife or his hand causing a cut at the eyebrow of his left eye. The knife fell to the ground and there was a scuffle between the two until others stopped the fight." 19 In reaching this conclusion his Honour did not expressly allude to the existence of the two competing accounts. His Honour went on to say that the applicant had admitted striking the victim with the knife and about four times with his hand. On behalf of the Crown in the present application it was conceded that at no time during the course of his interview did the applicant admit using the knife as a weapon or doing other than that which has been described. 20 It is of no small significance that in his fact-finding his Honour had regard to his belief that the applicant had admitted using the knife in the course of the attack. It will be obvious that there is a considerable difference in seriousness between an offence of this kind committed with the aid of a knife, even using the butt of the knife in distinction from the blade of the knife, and using only fists. It is clear that error has been demonstrated in the fact-finding exercise. The error made by his Honour must be taken to have coloured his view of the factual dispute and his resolution of that factual dispute. The victim's accurate description of the blade of the knife does not really assist in this conflict because it is not suggested that the applicant held the knife in such a way as to threaten the victim with the blade. That consistency does tend to support the credibility of the victim but it does not go directly to the issue that is in dispute. 21 During the hearing of this application various courses were suggested that might be available to the court. One possible suggestion was that the matter might be returned to the sentencing judge for the purpose of making appropriate findings of fact unencumbered by his misapprehension as to what it was that the applicant had said during the course of his interview. That course did not commend itself to the court and indeed I do not think it commended itself to counsel who raised it as a possibility. The fact is that no oral evidence was given about this matter and that is in part because his Honour deterred counsel for the applicant from proceeding to explore it. It cannot be said that the Crown was denied any opportunity to call evidence on the dispute because the dispute was clear from the terms of the applicant's interview and the error did not emerge until the remarks on sentence were being made. 22 Accordingly, the course that was taken was an agreement that the finding of fact should be set aside and given that all the material that was before the court was in writing this court felt able to proceed to make its own finding of fact on this matter. 23 I have carefully read the applicant's answers in the record of interview and the evidence that he gave in the course of the sentencing proceedings. In my opinion the interview itself and the oral evidence shows that the applicant did frankly accept his culpability and did acknowledge his part in the proceedings. 24 Equally, as I have said, Mr Davies' credit tended to be supported by his accurate description of the blade of the knife. What that means, in my view, is that it is not possible to be satisfied beyond reasonable doubt that the version of facts contended for on behalf of the Crown can be accepted. The matter has to be approached on the basis that the assault took place substantially as described by the applicant. 25 The second matter raised on behalf of the applicant concerns the approach taken by his Honour to the time served in custody and the circumstances of that custody, particularly that he will serve the remainder of his term in protection. His Honour referred to what he described as "some debate" at appellate level about the extent, if any, to which a sentencing court ought to take that circumstance into account. He said that on one view such matters are for the Corrective Services authorities but, on the other, which he described as "a more humane" view is that the need for protection creates an isolated existence preventing the normal routine of working whilst in prison. 26 The complaint that is made is that, while adverting to the two suggested views, his Honour failed to decide which to apply and accordingly failed to take into account the circumstances in which the applicant will serve his sentence. On behalf of the Crown it was argued that his expression of one view as "more humane" demonstrates that that was the view he took. 27 I subscribe to the view that, where a prison term is to be served in the circumstances specifically described by the applicant in this case, that is a matter affecting the proper term to be imposed, particularly the minimum term, but I am not persuaded that his Honour was in error in this respect. I think it is most likely that he did in fact consider that the fact that a sentence will be served in protective custody is a matter relevant to the length of sentence and a matter to be taken into account in favour of the offender. 28 The final matter that was argued is that the sentence was manifestly excessive. Prima facie I would be inclined to accept that proposition. Although the offence was obviously serious it must be remembered that the applicant was only nineteen years of age at the time it was committed and, although he had had previous brushes with the law, they had not resulted in any term of imprisonment. In saying that, of course, I leave out of account the subsequently committed offences for which he was sentenced in April 1998. Moreover, he did voluntarily surrender himself to police, although it may be taken that his eventual arrest would had been inevitable. The sentence imposed was of a total term of five years against a statutory maximum of seven. 29 In the ordinary course of events I would consider that sentence excessive but that leaves out of account the argument put on behalf of the Crown. When looked at in practical terms the sentence imposed was only an additional fifteen months (of minimum term) in addition to the sentences already being served. It would have been preferable had the applicant been dealt with for all offences at the same time. That is particularly so as this offence was committed during the same period as all of the others for which he was sentenced. 30 Had his Honour wished to do so it would have been open to him to have made this sentence cumulative upon the sentence imposed in the local court in which case one would have expected a shorter sentence to be imposed. Whichever way one looks at it, the applicant has been sentenced to a minimum term of fifteen months and an additional term of two and a half years for this matter cumulative upon the other matters. 31 As I have said, I do not think it is possible to approach this application on the basis that the applicant used a knife during the course of the assault and therefore the sentence imposed was excessive. In my opinion therefore the applicant has made good his challenge to the sentence and this court must re-sentence. 32 We have had regard to extremely favourable material put before the court against the contingency that this court would re-sentence. It is unnecessary to say more than that that material demonstrates that the applicant has made commendable efforts during his time in custody and has demonstrated prospects of rehabilitation. 33 I propose the following orders: 1. Leave to appeal be granted. 2. The appeal allowed and the sentence quashed. In lieu thereof the applicant be sentenced to a total term of penal servitude for three and a half years made up of a minimum term of one year and nine months commencing on 20 April 1998 and expiring on 19 January 2000 and an additional term of one year and nine months commencing on 20 January 2000 and expiring on 19 October 2001. 34 KIRBY J: I agree with the reasons given and with the orders proposed. 35 SIMPSON J: The orders of the court will be as I have proposed. **********