New South Wales Court of Criminal Appeal CITATION : Regina v Tony Sandnes [2001] NSWCCA 385 FILE NUMBER(S) : CCA 60574/00 HEARING DATE(S) : 25 September 2001 JUDGMENT DATE : 25 September 2001 PARTIES : Regina Tony Sandnes JUDGMENT OF : Powell JA at 1 & 21; Sully J at 2; Bell J at 22 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70055/99 LOWER COURT JUDICIAL Dunford J OFFICER : COUNSEL : L.M.B. Lamprati - Crown J. S. Stratton - Appellant SOLICITORS : S. E. O'Connor - Crown D. J. Humphreys - Appellant Regina v Houlten Regina v Thomson CASES CITED: Regina v Gregory Peter Hayes (2001) NSW CCA 358 Regina v Ellis Regina v Cartwright Regina v Winchester DECISION : Extension of time granted; Leave to appeal granted; Substantive appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60574/00 POWELL JA SULLY J BELL J Tuesday 25 September 2001 REGINA v TONY SANDNES JUDGMENT 1 POWELL JA: I will ask Sully J to deliver the first judgment. 2 SULLY J: Mr Tony Sandnes applies for leave to appeal against a sentence of imprisonment that was passed upon him by Dunford J of this Court on 18 August 2000. 3 Mr Sandnes requires an extension of time in which to bring that application. I would myself favour granting the necessary extension in order that the application might be dealt with on its merits. 4 The sentence in fact passed was a sentence of imprisonment for a term of 11 years with an accompanying non-parole period of eight and a half years. 5 On 5 June 2000 the applicant was presented for trial before Dunford J upon an indictment charging that he had, on 9 January 1998, murdered one Donald Foster. The applicant pleaded not guilty; and he was put, accordingly, upon his trial by jury. The Crown opening and the Crown evidence proceeded throughout the day. On the following day it was intimated to the Court that the applicant wished to revise his plea. He was thereupon re-indicted, and pleaded guilty to the manslaughter of the victim, that plea being accepted by the Crown in full discharge of the indictment. 6 The relevant facts are set out as follows in the remarks on sentence of Dunford J "On 30 December 1997 at about 3pm the deceased then 80 years old, weak and with a number of health problems, was in bed at his home at 16 Vera St, Earlwood when he was bludgeoned with a half brick resulting in severe head injuries from which he bled profusely. He was taken to hospital but died there on 9 January 1998, some 10 days later, as a result of his injuries. The prisoner gave evidence on the sentencing proceedings and said that he had been addicted to heroin and amphetamines for some years and whilst a patient at Wisteria House, a drug rehabilitation unit, he had formed a relationship with Sue-Ann Foster, the grand-daughter of the deceased and another addict. He said that on 30 December the two of them went to the deceased's home to get money, believing that at that time of the day he would not be at home. He said they wanted $40 to buy a ball joint for Ms Foster's car, but I am satisfied to the criminal standard that they also wanted money to purchase drugs. Ms Foster had been to the grandfather's place before asking for money when he was there and he had refused her, so on this occasion they decided to go when he was not there and steal it. The prisoner said that after parking their car (which was a stolen car) in a parking area nearby at the end of the street, they entered the premises by him bending a padlock lever on a side gate and Ms Foster then using her keys to gain entry through the back door, although other evidence indicated that the door must have been unlocked at the time. He said Ms Foster went in whilst he remained at the back door, he heard mumbled talk and a scuffle and then Ms Foster called him, so we went into the premises and found the deceased in his bedroom holding Ms Foster who was struggling. The prisoner hit the deceased in the mouth with his closed fist causing him to let go of her and grab him by the shirt. A struggle ensued while Ms Foster was going through the deceased's cupboards. At one stage the prisoner discovered a half brick on the floor, he picked it up and struck the deceased twice on the head with it causing him to curl up in a ball partly on the bed and partly on the floor. They then both left, Ms Foster taking $1,500 in cash from the premises, and ran down the street to their car, the prisoner changed his clothes and they drove away. Of the $1,500 taken, $500 was used by the prisoner to complete the purchase of a motor vehicle, and the balance was spent by Foster on the purchase of heroin for the use of both of them. A short time later the prisoner, at the urging of Foster, rang the ambulance emergency number on an anonymous basis asking them to attend the deceased's house, but unfortunately the wrong house number was given and the ambulance initially went to the wrong address. Shortly afterwards a neighbour entered the deceased's house, he found the rear gate latch badly twisted and the back door closed but unlocked. He then entered the bedroom and found the deceased lying on the floor near the curtains under the window with blood all over his face and over the bottom of the curtains. A pair of thongs was located in the hallway near the linen cupboard and bathroom. In addition the bedroom showed signs of quite a struggle. On admission to hospital the deceased was suffering extreme facial contusions, three fractures to the skull (right parietal, zygoma and maxilla) and a subdural haematoma with brain compression." 7 When the applicant was first arrested and interviewed by the police he denied all knowledge of the deceased, or of the injuries that had been caused to the deceased; and he put forward an alibi which was later proved to be false. Dunford J, who had the benefit of seeing and hearing the applicant, who gave evidence during the course of the proceedings on sentence, expressed these conclusions: "I am satisfied that the prisoner's current version is much closer to the truth, but is not the entire truth. In light of evidence from another grand-daughter of the deceased I am satisfied that there was no half brick inside the house and the prisoner took the lethal weapon into the house from the backyard where there were a number of them, and that the reason why he removed his thongs on entering the house was to avoid being heard." 8 It could hardly be disputed, – and to be fair to the submissions put in support of the present application, it was not contended, - that the crime in connection with which the applicant eventually stood for sentence was, in terms of its objective criminality, a callous and brutal crime of great objective criminality. In terms of its purely objective features this crime stands, in my opinion, at the very top of the relevant scale of criminal culpability. It is to be borne steadily in mind for present purposes that the crime of manslaughter attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. Nothing more need be said about the view which the Legislature has taken about the essential gravity of the crime itself. 9 Two principal submissions are put in support of the present application. 10 The first of them is that the learned sentencing Judge fell into error in the approach that his Honour took to the allowing of a discount of sentence in consideration of the plea of guilty, albeit the plea was not entered until after the trial had commenced, and on the second day of the trial. In that connection his Honour expressed his conclusions as follows: "He has pleaded guilty, although not at the earliest opportunity, and expressed his remorse and shame for his actions. He was affected by drugs at the time and also called the ambulance to go to the assistance of the deceased; I have taken all these factors into account. In relation to the plea of guilty I am satisfied that notwithstanding the apparent reservations of the Crown Prosecutor, the Crown case against the accused was a strong one and conviction was inevitable, but I nevertheless give him credit on account of the remorse shown by the plea and for saving the State and the victim's family the cost and ordeal respectively of a trial and I have accordingly reduced the sentence I would otherwise have imposed by 1 year and reduced the non parole period by 6 months. Having regard to the objective criminality involved as detailed above I consider no further discount or reduction to be appropriate." 11 The proposition now advanced is that what his Honour did in the analysis which I have quoted failed to make the allowance for which the guideline judgment of the Court in Thomson and Houlten stands as authority. In that connection I can express my own views simply and conveniently by reaffirming what I had occasion to say on the 12th of this month in the matter of Gregory Peter Hayes (2001) NSW CCA 358. At paragraphs 38 through 52 of the transcript of that decision of the Court I have said all that I need to say for present purposes in connection with the point based upon Thomson and Houlten. It is not, I think, necessary to repeat now the fine detail of what I said on the earlier occasion. 12 I myself would not uphold the first submission put for the applicant. 13 I think it needs to be re-emphasised for as long as is necessary in order to make the message clear, that no resourceful juggling of the decisions in Ellis, in Cartwright, in Winchester and now in Thomson and Houlten can be permitted to create a state of affairs in which crimes of callous and brutal violence of the kind of which the Court is concerned on the present occasion, are dealt with in the ultimate result in a way that a reasonable mind would consider to be unjustly disproportionate to the gravity of what is involved. There is a concomitant need to emphasise, and to be seen to be emphasising, that the Courts will show every proper resolve in protecting members of the public, and, in particular, aged and infirm members of the public, against attacks of the kind to which the unfortunate victim in the present matter was so cruelly subjected. 14 The second submission put in support of the present application is cast in more general terms. It postulates that the end result in fact achieved by the learned sentencing Judge can be seen, if tested properly against such statistical material as is available, to lie beyond what has hitherto been accepted as an appropriate range applicable to crime of the kind with which the Court is now dealing. The submission has been crafted in the customary language: which is to say that it has been crafted by reference to illustrations in graphic form taken from records of the Judicial Commission of New South Wales, being records which are said to indicate reliably the relevant ranges of sentence. 15 So far as concerns the present particular matter, the relevant graph, in terms of overall sentence imposed, seems to me to be the graph that speaks of sentences imposed in cases of manslaughter between April 1993 and March 2000, upon offenders who have pleaded guilty, and who have, as the present applicant admittedly had, criminal antecedents, but of a different kind. 16 The material thus put before the Court seems to me to exemplify the problems of attempting to deal with matters of the present kind upon the basis of this type of statistical material. The total case base involved in the particular analysis is ten cases. I am in no position to say dogmatically that there must have been more than ten cases of manslaughter of the profiled kind dealt with by the Courts between April 1993 and March 2000; but I have to say that I would be greatly surprised to find that there had been as few as ten such cases. In any event, it seems to me that a base as narrow as that is of no practical assistance to the Court in its present task. 17 There were in the case of the present applicant, as there are in the cases of most applicants, subjective features. They have their proper place in the general sentencing scheme. It is not contended that the learned sentencing Judge did not correctly understand what they were; or that his Honour did not correctly bring them to account. 18 It seems to me that on a fair overall view the proper conclusion to be reached in this case is that the sentence imposed was a substantial sentence lying towards the top, even perhaps the very top, of a permissible range of sound sentencing discretion. I am, however, wholly unpersuaded that it has been shown to fall outside the range of a sound sentencing discretion. 19 Let it be said again one final time: This was a crime of great objective wickedness and criminality. The learned sentencing Judge took, as in my respectful opinion his Honour was both entitled and duty bound to take, a severe view of it. I myself am wholly unpersuaded that the sentence does not, so to speak, fit the crime. 20 I would grant the necessary extension of time to make the application for leave to appeal. I would grant the application for leave to appeal. I would dismiss the substantive appeal. 21 POWELL JA: I agree. I would not wish to add anything further. 22 BELL J: I also agree. 23 POWELL JA: The orders of the Court are those which have been proposed by Sully J. 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.