New South Wales Court of Criminal Appeal CITATION : R v Hayes [2001] NSWCCA 358 FILE NUMBER(S) : CCA 60776/00 HEARING DATE(S) : 12/9/01 JUDGMENT DATE : 12 September 2001 PARTIES : Regina Gregory Peter Hayes JUDGMENT OF : Sully J at 1, 38; Carruthers AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/0108 LOWER COURT JUDICIAL Karpin DCJ OFFICER : COUNSEL : D M L Woodburne (Crown) P R Boulten (App) SOLICITORS : S E O'Connor (Crown) D J Humphreys (App) CATCHWORDS : Sentencing - appeal against allegedly excessive sentence - maliciously wound with intent to do grievous bodily harm - sentence to be served in protective custody - whether sufficient allowance for plea of guilty Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act Astill (No 2) (1992) 64 A Crim R 289 Kalache [2000] NSWCCA 2 R v Costin [1989] 11 Cr App R (s) 182 CASES CITED: R v Lo [2001] NSWCCA 271 R v Stabler [1984] 6 Cr App R (s) 129 R v Thomson & Anor (2000) 49 NSWLR 383. Rushby (1977) 1 NSWLR 594 Veen v The Queen (No 2) (1988) 164 CLR 465. DECISION : Application for leave to appeal allowed. Appeal dismissed. - 15 -IN THE COURT OF CRIMINAL APPEAL 60776/00 SULLY J CARRUTHERS AJ Wednesday 12 September 2001 Regina v Gregory Peter Hayes JUDGMENT 1 SULLY J: I will ask Carruthers AJ to give the first judgment. 2 CARRUTHERS AJ: Gregory Peter Hayes seeks leave to appeal against the sentence imposed upon him by her Honour Judge Karpin at the Parramatta District Court on 27 October 2000. On 21 July 2000 the applicant was arraigned on an indictment containing one count of causing grievous bodily harm with intent to murder under s 27 of the Crimes Act 1900 and, in the alternative, one count of maliciously wound with intent to do grievous bodily harm under s 33 of the Act. Each of these offences carries a maximum penalty of twenty-five years imprisonment. 3 The applicant pleaded not guilty to the count under s 27 but guilty to the count under s 33, which guilty plea was accepted by the Crown in full satisfaction of the indictment. 4 It is convenient to note that albeit both these offences carry the same maximum penalty, the count under s 27 is, in the administration of the common law, generally understood to be a more serious offence than the offence encompassed by s 33. 5 Her Honour sentenced the applicant to imprisonment for eleven years and eight months to commence on 14 January 2000 and to expire on 13 September 2011. Her Honour fixed a non-parole period of eight years and nine months to commence on 14 January 2000 and to expire on 13 October 2008. 6 The applicant was born on 3 January 1957. He has an unhappy history. He was only thirteen years of age when he first came before the Minda Children's Court for an offence of illegally using a motor vehicle, for which he was ordered to serve twelve months probation. Thereafter he was fairly regularly before Children's Courts and then Local Courts. 7 On 10 August 1983 he was sentenced at the Central Criminal Court Sydney to life imprisonment for murder. This sentence followed a plea of guilty by him to the murder of his daughter, who was aged three years at the time. 8 With respect to this offence he served fifteen years imprisonment between 1982 and 1997, when he was released to parole. After the applicant's release from prison he lived with his brother Michael in the home which his brother occupied with his partner, Kim Garland, the victim of the subject offence, and her three children. 9 It would appear, consistent with the applicant's history, that during the period that the applicant lived in this home he was given to rather aggressive, angry behaviour. 10 On the morning of 14 January 2000 the applicant's brother left for work. Ms Garland remained in bed dozing. Thereafter the learned sentencing judge described the offence as follows: "A short time later the prisoner came into her bedroom, closing the door behind him, and said to her, 'It looks like I'm going back to gaol'. Miss Garland said, 'Back where?', to which the prisoner replied, 'Back into gaol'. He then began to strike the victim repeatedly with the piece of wood she had observed him carrying. He hit her about the head and face, saying, 'I'm going to kill you, you dirty mother fucker. I'll go back to gaol for you'. Miss Garland attempted to protect herself by putting up her arms. She was struck hard to both arms, causing fractures to both arms and to her fingers. The prisoner continued to attack, striking the victim a number of times on her head and back. At one point the victim managed to grasp the weapon briefly, but the prisoner grabbed it back from her and continued to strike her hard, saying 'You'd better start praying now'. Miss Garland was bleeding heavily from the injuries she had sustained. She began spitting blood. After being hit hard on the temple region she saw blood spurting over the wall. She was struck a number of times. The prisoner pulled a mosquito net over the victim, wrapping it around her so that she could not move. He continued to strike her repeatedly. She was in a great deal of pain. She was spitting blood, and she spat out a tooth which had been dislodged. She believed the prisoner intended to kill her. She endeavoured at one stage to pretend that she had lost consciousness. However, each time she showed signs of consciousness the prisoner resumed the attack upon her. Her best estimate is that the attack lasted for about twenty minutes, toward the end of which time she was slipping in and out of consciousness. Eventually the prisoner desisted from the attack. The victim heard him moving about in the room before he left. He made no attempt to get help for the victim. She was discovered by the children about an hour and a half later. An ambulance conveyed her to hospital where she underwent more than nine hours of surgery. She had suffered substantial loss of blood. Apart from bruising and abrasions to extensive areas of her body the victim had suffered a depressed skull fracture with a dual tear, numerous wounds to her skull and the fractured bones as previously set out. The victim's statement identifies further fractures of her nose, jaw and facial bones and notes that two steel plates and ten screws were required to repair the damage to her left elbow alone. She also lost a tooth. When arrested the following day the prisoner declined to make a statement, as was his right. He did not give evidence in the sentence proceedings. His version of the event is derived from the report of Dr Bruce Westmore, forensic psychiatrist, dated 9 October 2000. A victim impact statement has been tendered to the Court dated 30 August 2000. That statement details a number of reported sequelae of the attack, including, but not limited to, scarring and constant pain from the victim's physical injuries, which have also reduced her capacity for many normal occupations; headaches, dizziness and blurred vision; difficulties of concentration and memory; loss of confidence resulting from the change in her physical appearance and loss of capacity to perform functions and employment; an increased state of anxiety and a fear of being left alone in the house; continuing nightmares and fear reactions; severe mood changes and irritability which have impacted negatively on other family members." 11 Her Honour had before her a psychiatric report by Dr Bruce Westmore, psychiatrist, dated 9 October 2000. Under the heading "Diagnostic Issues" Dr Westmore said: "Your client suffers from substance abuse (poly substance abuse but cannabis in particular). He has evidence of a personality disorder with antisocial qualities. By way of general comment he has problems with anger management and impulse control and it is likely that he suffers a degree of institutionalisation. There are also unresolved issues to do with women." Further, under the subheading "Opinion and Conclusions" Dr Westmore said: "This man's current history of extreme aggression towards a woman is obviously of considerable concern in view of his previous history of aggression towards his own daughter. He needs to go into total sobriety and if he can achieve this then this will be a positive prognostic factor. As he ages and develops increasing maturity it is probable that problems such as anger control and impulse control will also improve." 12 It is sufficient to note from the passages which I have quoted above from her Honour's judgment that, viewed objectively, this was an horrendous crime. The applicant showed no mercy to his victim and, bearing in mind the evidence which was available to the Crown, the acceptance by the Crown of the plea to the count under s 33 must be considered to be something of a boon. However, that does not affect the views which I will express in relation to the matters which have been raised in the subject appeal. 13 The Judicial Commission statistics show that the sentence under review is at the top of the range for this particular offence. Indeed, when one looks at 133 cases between April 1993 and March 2000, full terms for all offenders, they demonstrate that when the full term is rounded off, as required by the statistics, this sentence is within the top 6 per cent. Insofar as the minimum fixed terms are concerned, again with a sample of 133 total cases, this sentence falls, so far as the minimum term is concerned, within the top 2 per cent. 14 As I have indicated, the applicant was on parole at the time of the commission of the subject offence. 15 The first ground of appeal is that her Honour gave insufficient weight to the plea of guilty. In this regard her Honour said: "The plea of guilty must attract a discrete discount after taking all other matters into account, that is, the discount for utilitarian considerations, the saving of trauma to the victim in having to re-live this event through giving evidence, and the very real saving in cost to the community when a trial is avoided. So far as the plea providing evidence of contrition, that is taken into account in arriving at the head sentence before applying the discount provided for those utilitarian purposes. Whilst the prisoner acknowledged to Dr Westmore that he should not have committed this offence, the rather minimalising version which he gave Dr Westmore is not a truthful version of the event and as such does not provide strong evidence of remorse." 16 Her Honour then specified that she would reduce the sentence which she would otherwise propose by 10 per cent, having regard to the plea of guilty having been entered in what she referred to as the face of a very strong Crown case. 17 Counsel for the applicant points out, therefore, that her Honour's starting point was thirteen years, which included some adjustment in the sentence to factor in some minimal degree of contrition but which, counsel contends, did not factor in any discount for the utilitarian value of the plea. 18 It is contended that, given the prosecution accepted the plea to the alternative count upon the indictment on arraignment, the plea was therefore entered at the earliest opportunity within the meaning of the relevant cases, in particular the guideline judgment of R v Thomson & Anor (2000) 49 NSWLR 383. 19 It is submitted that because the plea was entered at the earliest opportunity and because it saved great trauma to the victim and her family, a discount of 10 per cent, being the very bottom of the range, was erroneous. Counsel sought to rely upon the recent decision of this Court in R v Lo [2001] NSWCCA 271. In that case Simpson J held, in a judgment with which Sperling J agreed, that where there was an early plea of guilty and yet only a 10 per cent discount granted for the utilitarian value of the plea "this point alone vitiates the sentencing process. The sentence should be set aside and this Court should re-sentence the applicant." In re-sentencing the applicant the Court substituted a discount of 15 per cent. 20 In careful submissions on behalf of the Crown, Ms Woodburne has drawn the Court's attention to a number of distinguishing features between Lo's case and this case. It would be sufficient, in my view, however, if I referred to the fact that two-judge Benches of this Court are constituted to deal with cases where questions of sentencing principle are not really in issue, but rather to deal with matters where there are well-established sentencing principles, and the question which arises is the application of those principles to the facts of the particular case. Thus, what was said in Lo by her Honour, with due respect, must be considered in the light of that situation. 21 Speaking for myself, I am of the view that there is nothing in Lo which would lead me to accept, per se, that a 10 per cent discount was in this case an error of law, as is contended by counsel for the applicant. 22 It has to be recalled that in the judgment of the Chief Justice in Thomson, (at paragraphs 157, 158, 159)+ his Honour said: "There are circumstances in which the protection of the public requires a long sentence to be imposed so that no discount for the plea is appropriate. See e.g. R v Stabler [1984] 6 Cr App R (s) 129 at 131 and R v Costin [1989] 11 Cr App R (s) 182 at 184." 23 This is not a case, of course, where her Honour allowed no discount. Then Spigelman CJ continued: "There are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate. This includes situations in which a life sentence can be and is imposed, notwithstanding the plea." 24 The Chief Justice referred particularly to Kalache [2000] NSWCCA 2, especially at paragraphs 38 to 44 in the judgment of Sully J. Further, the Chief Justice said: "It is also pertinent to state that a discount of 10-25 per cent is not a range within which trial judges may exercise a discretion that will not be subject to appellate law. Appeals against severity or leniency of sentence focus on the range which is appropriate for the particular case, not the range appropriate for pleas in the full variety of circumstances." 25 Those very pertinent remarks are applicable to the approach which Judge Karpin took in the instant case. One must also consider in this context the principles enunciated by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465. 26 I am quite unable to conclude in the light of the submissions that have been put and the views expressed by her Honour in her carefully considered and worded judgment that any appellable error is disclosed by the allowance of a discount of 10 per cent. 27 Secondly, it is submitted on behalf of the applicant that her Honour gave insufficient weight to the fact the sentence will be served in strict protection. 28 There is no question that the applicant spent the whole of his murder sentence in strict protection because of the nature of the offence. There was evidence before the Court in Dr Westmore's report that presently in prison the applicant receives no visits. He is in strict protection but he gets on with the officers. 29 Dealing with this aspect of the matter, her Honour held: "Because of the nature of his original offence, the prisoner served his sentence under protection and will no doubt serve the sentence to be imposed today in similar isolation, the consequences of which are that the prisoner is locked in his cell from approximately 3.30 pm each day until 10 am on the following morning. That is a hardship which should be reflected in the sentence." 30 It may not be inappropriate to comment that the applicant was no doubt well aware that the dreadful injuries which he inflicted upon Ms Garland would attract a further gaol sentence. So much is obvious from the passage quoted from her Honour's recitation of the facts which I have referred to earlier. It will also have been well in his contemplation that such a future sentence would be served in strict custody. 31 The fact that the prisoner has to serve his sentence in protective custody can, we are reminded by counsel for the applicant, also constitute special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act. See the remarks of Kirby P in Astill (No 2) (1992) 64 A Crim R 289 at 294. 32 The applicant does not claim that the conditions of his imprisonment should entitle him to a reduction in both the head sentence and the non-parole period. It is submitted that the Court should intervene so as to reduce either the head sentence or the non-parole period because the appellant will serve his sentence in very harsh conditions. 33 It is, of course, well known to sentencing judges and members of this Court that the service of sentence in strict custody does impose considerable hardships upon the person serving that sentence, and it is indeed a matter appropriate for the sentencing judge to take into consideration. Her Honour said: "He is serving the balance of parole. Thus it would be open to this Court to sentence him from the date he entered his plea. However, his sentence will be calculated from the date he went into custody. I can see no basis for a variation of the non parole and parole periods in this case." 34 Her Honour had a difficult sentencing task before her because of the horrendous objective factors and the slight subjective matters, (leaving aside the plea of guilty) which the applicant could call in aid. He had an unfortunate past history and was at liberty subject to the parole order for a relatively short period of time before committing the subject offence. 35 At the end of the day the sentence which her Honour imposed, (which required the balancing of the subjective as well as objective circumstances) was not disproportionate to the particular circumstances of the offence. 36 Having carefully read and re-read her Honour's judgment and carefully considered the written and oral submissions so forcefully made by Mr Boulten of counsel on behalf of the applicant, I am unable to conclude, allowing for the heavy sentence imposed, that there is any appellable error on the part of the sentencing judge, or that the contention that the sentence either from a full term or a non-parole period term aspect was beyond the sentencing discretion available to her Honour. 37 Accordingly, I would propose that the application for leave to appeal be granted but that the appeal be dismissed. 38 SULLY J: I agree and I wish to add only some particular observations of my own because of certain particular aspects of the course of argument in connection with the present application. 39 I agree entirely with what has been said by Carruthers AJ in connection with the limitations which are placed by statute upon the proceedings of a Bench of the Court comprising two judges only. It is, I think, timely to remember that the procedure of hearing applications for leave to appeal by Benches comprising only two judges derives from a specific amendment to the Criminal Appeal Act. That amendment is to be found in s 6AA of the Act. 40 It is timely to note that a matter may not be referred to a two-Judge Bench of the Court save upon a direction of the Chief Justice conforming with the requirements of subs (1) of s 6AA. That direction, however, may only be given "if the Chief Justice is of the opinion that the appeal is not likely to require the resolution of a disputed issue of general principle". See subs (2). 41 It seems to be the case that the guideline judgment in The Queen v Thomson and Houlton is becoming something of a springboard from which there can be launched seemingly endless arguments of arithmetical refinement concerning the question whether a discount which has been given and quantified in a particular case by a particular sentencing Judge is or is not a correct application of the principles established by the guideline judgment itself. 42 If it be correct to discern that trend, and I believe it is entirely correct to discern it, then I presume to say that it will be necessary for some time to come that two-Judge Benches of this Court distinguish very carefully between the application as a matter of fact of principles established in the guideline judgment; and the glossing of those principles by the too-ready enunciation of what are said to be further principles of law derivable from the guideline judgment itself. 43 The situation is completely clear. As matters stand, the law in this State relevant to the question of discounting of sentences for pleas of guilty is authoritatively stated in the guideline judgment itself. The law is not authoritatively stated by single instances of law-making by miscellaneous two-Judge Benches of the Court. 44 Unless that principle is adhered to with care, the Court is going to find itself in a situation where in practically every case of a plea of guilty, there will be an argument, not based so much upon the principles established in the guideline judgment itself, but based upon adventitious statements, said to be statements of legal principle, made by two-Judge Benches of the Court. 45 The Court cannot say that it has not been warned, particularly in the matter of discounting sentences for pleas of guilty, that the forensic inventiveness which has built endlessly upon the foundations of Ellis, Cartwright and Winchester is alive and well in connection with the guideline judgment in Thomson and Houlton. 46 The second matter to which in particular I wish to advert is trite, but, having regard to the way in which the present case was argued, it seems to me to be relevant and timely to draw, albeit briefly, attention to the point. 47 It is well-settled law, and law stated succinctly and definitively as long ago as the decision in Rushby (1977) 1 NSWLR 594, that the determination in any given case of an appropriate sentence involves "an adjudicative balancing of a number of differing and not entirely consistent elements." The expression in a more discursive way of that most essential principle will be found in the passages of the judgment of the then Chief Justice, Sir Laurence Street, commencing at page 597.D and continuing to and including the material at page 598.E. 48 I draw attention to Rushby because what it says is given particular relevance, as I think, for present purposes by the observations of the Chief Justice in Thomson to the effect that the guideline judgment given in connection with the discounting of sentences for pleas of guilty "operates by way of encouragement and not by way of prescription". See at paragraph 72 at 401-402. 49 I take that statement of the Chief Justice, and there are cognate statements in other parts of his Honour's judgment, to be not departing from, but rather re-emphasising, what is sometimes described as the process of "instinctive synthesis" which is the essence of a sound exercise of a relevant sentencing discretion. If that be so, then the general principles stated conveniently in Rushby in the passages to which I have referred are worth recalling and re-emphasising. 50 In a case of the present kind the correct starting point is not an enthusiastic plunge into the arithmetic of the discount that has been allowed, or has not been allowed, or should, or should not, or might, or might not, have been allowed. The correct starting point is a level-headed understanding of the objective criminality of what has been done. That criminality, described by his Honour Carruthers AJ in terms that I need not now take time to repeat, could not be thought by any reasonable mind to be other than a culpability lying at the very top of the relevant range. 51 It needs to be said, and said clearly and with emphasis, that this was a dreadful, dreadful crime in terms of its objective culpability. That proposition clearly and sensibly in place, the operation of the principles exemplified in Rushby make it clear that although the relevant subjective features are to be given a proper weight; and although, as the law now stands, the question of discount for a plea of guilty is to be given a proper weight; that weight cannot be permitted to issue in a result which is not reasonably proportionate, on a fair overall view, to the gravity of the crime concerned; and to the concomitant need to protect the public at large from crime of that kind. 52 Those are principles of general application; but they have a particular significance in connection with crimes of gross violence, such as the crime here in question. 53 Apart from those additional matters, I respectfully and completely agree with what has fallen from Carruthers AJ. 54 I agree with the orders that his Honour proposes; and the Court orders accordingly. ooOoo 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.