New South Wales Court of Criminal Appeal CITATION : R v Bett [2001] NSWCCA 482 FILE NUMBER(S) : CCA 60517/01 HEARING DATE(S) : 23 October 2001 JUDGMENT DATE : 23 October 2001 PARTIES : Regina (Appellant) Donald Michael Bett (Respondent) JUDGMENT OF : Hodgson JA at 1 and 28; Simpson J at 2; Barr J at 29 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/71/0057 LOWER COURT JUDICIAL Moore DCJ OFFICER : COUNSEL : P G Berman SC - Crown/Appellant J P Hart - Respondent SOLICITORS : S E O'Connor - Crown/Appellant CATCHWORDS : Criminal law - Crown appeal against leniency of sentence - subjective circumstances. Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 DECISION : Crown appeal allowed , sentence quashed, respondent re-sentenced. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60517/01 HODGSON JA SIMPSON J BARR J 23 October 2001 REGINA v Donald Michael BETT Judgment 1 HODGSON JA: I will ask Simpson J to give the first judgment. 2 SIMPSON J: This is a Crown appeal against the asserted leniency of a sentence of three years imprisonment with a non-parole period of one year to be served by way of periodic detention imposed upon the respondent in the District Court at Wagga Wagga following his plea of guilty to a charge of maliciously inflicting grievous bodily harm. A maximum sentence of seven years imprisonment for the offence is prescribed by s 35(b) of the Crimes Act 1900. 3 In allocating the proportions of the total term and the non-parole period the sentencing Judge necessarily, or by implication, found special circumstances warranting departure from the formula contained in s 44 of the Crimes (Sentencing Procedure) Act 1999, although he did not give reasons for that departure. 4 The objective circumstances of the crime were very serious indeed. The victim was a sixty-two year old man who walked with the aid of a walking stick. At about 8.30 p.m. on the evening of Sunday 10 December 2000 he was walking in a Temora street. The respondent, accompanied by his girlfriend, was driving a car in the same street. He drove close to the victim, skidded to a halt, alighted from the vehicle, and approached the victim. He took the victim by the throat and shook him. The two engaged in a struggle for a short time and the respondent punched the victim in the face several times, causing the victim to stumble backwards. The victim regained his balance, the respondent again lunged at him, and the victim struck at the respondent with his walking stick. The respondent gained possession of the walking stick and threw it away. The victim kicked the respondent. The respondent took the victim in a headlock and again punched him several times in the face. The respondent threw the victim to the ground, causing the back of his head to strike the kerb. The respondent took the victim by the throat with his left hand and continued punching him with his right hand. The respondent then left the victim and drove off. 5 As a result of the incident the victim has lost the sight of his right eye. Bones in both cheeks were broken, requiring surgery. He sustained a broken nose and lacerations and suffered headaches for a time. 6 The respondent was twenty years of age at the time. He was known to the victim and there was never any question that he was the person responsible for the attack. On 24 January 2001 he attended the Temora Police Station with his father and surrendered himself for arrest. He declined to be interviewed, but agreed to have his refusal to do so electronically recorded. 7 On the face of it the attack by the respondent on the victim was entirely unprovoked and, having regard to the subjective matters which emerged, inexplicable. In oral evidence the respondent provided the only explanation for his conduct. This was that his girlfriend, about the same age as he, had earlier told him that the victim had sexually assaulted her over a period of seven years, beginning when she was six years of age and ending when she was thirteen. Having sought counselling, she had decided not to pursue her allegations by reporting them to police. Further, immediately before the attack his girlfriend told him that the victim had made a throat slitting gesture in her direction. The respondent had not personally witnessed this event. 8 It need hardly be observed that, whether or not the allegations of sexual assault or the allegation of the threatening gesture said to be made by the victim are true, those circumstances provide no excuse for the respondent's conduct. At most they provide an explanation for behaviour that was, on the evidence, completely out of character and otherwise inexplicable. 9 In the sentencing proceedings the respondent advanced a powerful subjective case. He was born on 14 October 1980 and was, as I have noted above, just twenty years of age at the time. He had no criminal history of any kind. Oral evidence of his character was given by his parish priest and his mother, and fifteen written character references were tendered. They were unanimous in their descriptions of the respondent's good character. He retained the support of his very large extended family, who are well known and respected in the Temora district and many of whom attended the sentencing proceedings as concrete evidence of their support. 10 At the time of sentencing the respondent held employment as a labourer, working for his father and other contractors. He expressed remorse for what he had done, supporting this by saying that he had lost fifteen kilograms in weight and had not had a decent night's sleep since the incident. His Honour appears to have accepted this expression as genuine. The respondent said that his conduct had absolutely devastated his family. 11 The sentencing Judge correctly described the offence as "a very grave example indeed" of its kind and recognised that, in the ordinary course, it would necessarily attract a period of full time custody. However, he described the subjective case made out by the respondent as "exceptional". He accepted that what the respondent had been told about his girlfriend's earlier relationship with the victim and about the apparent threat by the victim were the factors that precipitated the offence. He described this conduct as "absolutely an aberration" which was nevertheless inexcusable but, equally, unlikely to be repeated. 12 He recognised the need to balance the extremely serious objective features of the offence against the "exceptional" subjective circumstances. That balance led him to impose the sentence that he did. 13 In written submissions the Crown contended that two errors are to be detected in the sentencing Judge's approach, although it seems to me they are two sides of the same coin. The first is it is erroneous to label the subjective case as "exceptional"; secondly, that undue weight was given to the subjective case at the expense of the undoubtedly serious objective features. 14 In oral argument the Crown added that there was no or inadequate reference to questions of general deterrence which feature significantly in the sentence to be imposed in this case. 15 I think it is correct to say that the description of the objective case as exceptional was an overstatement. The subjective case was very favourable but not, in my opinion, exceptional. However, properly analysed, it seems to me that what his Honour really meant was that the respondent's foray into such a vicious and unwarranted assault on the victim, when taken in conjunction with his prior character, was exceptional, and I do not consider this to be erroneous. 16 Nevertheless, it would be wrong to lose sight not only of what the respondent did but also of the very serious injury sustained by the victim. 17 I have come to the view the Crown's argument in the second respect must be accepted. The sentence imposed manifestly failed to reflect the objective gravity of the very serious crime committed and it seems to me clear that his Honour did give excessive weight to the subjective circumstances. The Crown appeal must therefore be allowed and the sentence quashed. 18 The remaining, and more difficult question, is what sentence should be substituted. 19 To my mind, the issue is whether in the circumstances the respondent should be required to serve a term of full time custody or whether an extended sentence to be served by way of periodic detention would achieve the ends of the sentencing policy. 20 The principles governing successful Crown appeals and the imposition of an increased sentence are well known. This court must impose the lowest sentence that could reasonably have been imposed at first instance. The Crown asserts that nothing less than a period of full time custody is sufficient to meet the various purposes of criminal sentencing. I am not prepared to accept this. 21 The respondent was a very young man at the time he offended. He is entitled to the benefit of his prior good character, his genuine remorse, his plea of guilty, his voluntary surrender to the police, limited though that benefit is (it being clear that he was identified as the perpetrator). 22 A further consideration is to be found in the time taken by the Crown in launching this appeal. By s 5D of the Criminal Appeal Act 1912 the Crown is not bound by time limits that apply to other appellants. However, it is well recognised that a significant delay in lodging an appeal may be a factor in this court's decision whether a Crown appeal should be or should not be allowed. In my view, at least in the circumstances of this case, where the respondent has, so far as the evidence before this court goes, conscientiously discharged the obligations of the order, that fact is also capable of affecting the decision whether a sentence of periodic detention should be converted to one of full time custody. 23 Here the sentence was imposed on 31 May of this year, the order for periodic detention specified to commence on 16 June. The respondent was notified by letter dated 12 June that the Crown was considering an appeal, but no appeal was in fact lodged until 3 August and served a few days later. The consequence is that although the period in which the respondent is required to attend at the periodic detention centre had not expired at the time the Crown appeal was lodged, it has expired at the time the Crown appeal comes on for hearing. 24 The respondent has, so we were told, commenced the second phase of the order for periodic detention, that being served by way of community service. 25 In my opinion, taking all this into account, it is unnecessary to increase the total term of the sentence and unnecessary to interfere with the order that the sentence be served by way of periodic detention. It is the non-parole period that is, in my view, manifestly inadequate. 26 The Crown argued, with some force, that this is a case in which it would not have been surprising to have found the respondent sentenced to a fixed term of imprisonment, there being little to be gained by the application of a non-parole period. This submission gained some strength from the absence of reasons given by his Honour for the shortening of the non-parole period and the lengthening of the parole term. However, I think there is material to justify the decision to specify a non-parole period contained in the evidence that was before the sentencing Judge, particularly in light of the fact that this is the first offence committed by the respondent, and certainly the first time he has been subject to any kind of custodial order. So, with some reservations, I would not impose a fixed term. 27 I would not, however, find that there were special circumstances that would warrant departure from the s 44 ratio. I therefore propose that the Crown appeal be allowed, the sentence be quashed, and the respondent be sentenced to a term of imprisonment of three years with a non-parole period of two years and three months to be served by way of periodic detention. 28 HODGSON JA: I agree. 29 BARR J: I agree with the presiding Judge and with Simpson J that, for the reasons given by Simpson J, this appeal should be allowed. 30 I disagree with their Honours about the sentence this court should impose in substitution for that imposed by the sentencing Judge. The injuries sustained by the complainant put this offence, in my view, towards the top of the range of serious offences under s 35(b). Notwithstanding the strong subjective case of the respondent - his youth, his prior good character, his early plea of guilty and his obvious contrition - the offence called for the imposition of a period of full time custody. 31 I think that the minimum period appropriate for this court on the allowance of this Crown appeal would have been a fixed term of twelve months. I would have imposed a period of imprisonment of that length. My reason for not fixing a parole period would be that the respondent had such character, family and community support that there was no need for parole. 32 I would not have taken into account in fixing that sentence the circumstance that the notice of appeal was not served on the respondent until a little over two months after the date of sentence. 33 HODGSON JA: The order of the court is as proposed by Simpson J, the period of imprisonment to be served by way of periodic detention commencing on 15 June 2001 and expiring on 14 June 2004. The non-parole period is to commence on 15 June 2001 and expire on 14 September 2003. ********** 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.