New South Wales Court of Criminal Appeal CITATION : R v Murray [2003] NSWCCA 209 HEARING DATE(S) : 23/07/03 JUDGMENT DATE : 23 July 2003 JUDGMENT OF : Tobias JA at 24, 26; James J at 25; Howie J at 1 DECISION : The application be granted and the appeal be allowed in respect of the sentence for the offence on the first count in the indictment. The sentence on that count should be quashed and in lieu the applicant be sentenced to three years imprisonment to commence on 24 February 2004 with a non-parole period of 6 months to expire on 23 August 2004 the date upon which the applicant is to be released to parole. It is to be a condition of his parole that he places himself under the supervision of the adult probation service. CATCHWORDS : Criminal Law and Procedure - Judgment and Punishment - Application of Pearce v The Queen - whether pronouncement of sentence manifested error - sentence manifestly excessive. LEGISLATION CITED : Crimes Act 1900 - s 35(1)(a) & (b), 112(2) Crimes (Sentencing Procedure) Act - s 37 Pearce v The Queen (1998) 194 CLR 610 CASES CITED : R v Fernando (1992) 76 A Crim R 58 Hammoud (2000) 118 A Crim R 66 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 PARTIES : Regina v Guy Ronald Murray FILE NUMBER(S) : CCA 60113/03 COUNSEL : M. Grogan - Crown C. Craigie SC - Applicant SOLICITORS : S.E. O'Connor - Crown R. Mathur - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/1187 FILE NUMBER(S) : LOWER COURT Morgan DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60113/03 TOBIAS JA B JAMES J HOWIE J WEDNESDAY 23 JULY 2003 REGINA v Guy Ronald MURRAY Judgment 1 HOWIE J: On 29 August 2002 the applicant was arraigned in the District Court on an indictment containing three counts. The first alleged an offence of break enter and steal in circumstances of aggravation contrary to s 112(2) of the Crimes Act. The second alleged an offence of maliciously inflict grievous bodily harm contrary to s 35(1)(b) of that Act. The third count was in the alternative to the second and alleged an offence of malicious wounding contrary to s 35(1)(a) of that Act. The applicant pleaded guilty to the first and third counts on the indictment. Those pleas were accepted by the Crown in full satisfaction of the indictment and the applicant was remanded for sentence. 2 When the applicant came before her Honour Judge Morgan to be sentenced for the offences to which he had pleaded guilty, he asked her Honour to take into account five offences on a Form 1 when sentencing him in respect of the first count in the indictment. In respect of the offence of malicious wounding her Honour sentenced the applicant to a fixed term of 2 years imprisonment to commence on 24 February 2002 and to expire on 23 February 2004. In respect of the offence in the first count and taking into account the matters on the Form 1, the applicant was sentenced to imprisonment for 4 years and 6 months to commence on 24 February 2004 and to expire on 23 August 2008. In respect of this sentence her Honour fixed a non-parole period of 2 years to expire on 23 February 2006. The sentence therefore imposed upon the applicant totalled 6 years 6 months with an effective minimum period of imprisonment of 4 years. 3 Three grounds of appeal have been filed in respect of the application and are as follows: 1. The learned sentencing judge erred in law as to the appropriate approach to the issues of totality and application of principles promulgated in Pearce v The Queen 194 CLR 610. 2 The learned sentencing judge failed to adequately reflect relevant features of the applicant's background, in particular those arising for consideration pursuant to R v Fernando (1992) 76 A Crim R 58. 3. The sentences imposed manifestly exceed those that were required to meet the combination of objective criminality and subjective factors to be considered in the sentencing synthesis. 4 The two offences to which the applicant pleaded guilty are related and both occurred on 24 February 2002. The first count alleged that he broke and entered the dwelling house of Joseph Frendo and there committed a serious indictable offence in that he stole a television set in circumstances of aggravation namely that at the time when he entered the dwelling house he knew that there were persons present there. This is an offence that carries a maximum penalty of 20 years imprisonment. The second offence to which the applicant pleaded guilty arose in the aftermath of that offence when the applicant inflicted a wound to the face of Mr Frendo. It is an offence that carries a maximum penalty of 7 years imprisonment. 5 The matters on the Form1 arose from two separate incidents of criminality. The first occurred on 23 November 2001 when the applicant broke and entered a public school and stole computer equipment. After he was arrested in respect of that matter he was found to be in possession of a screwdriver and a claw hammer. The second group of matters were committed on 20 December 2001 and might be described as street offences arising from a brawl in which the applicant became involved. They were not of such seriousness in themselves that they need to be further identified but one allegation was that he was threatening a person with a golf club. It should be noted that the applicant was on bail in respect of the matters set out in the Form 1 when he committed the offences to which he pleaded guilty. 6 There is no real dispute about the facts upon which the learned sentencing judge was entitled to determine the appropriate sentences to be imposed upon the applicant. They were set out in a fact sheet prepared by the Crown Prosecutor and which was admitted by consent. For present purposes they can be summarised as follows. 7 At about midnight on 24 February 2002 Mr Frendo and his wife had retired to bed for the night when they heard the voice of the applicant, whom they knew, outside the bedroom window asking Mr Frendo whether he had any cigarettes. Mr Frendo replied that he did not and reminded the applicant of the time. As the applicant walked away from the house, he was heard to say, "This would be an easy house to break into because it was all open." 8 At about 4 am that morning Mr Frendo's son heard a noise and got out of bed to investigate. He saw the applicant and another person walk out of the house carrying a television set, which the applicant placed on the ground outside. The child then woke his mother and told her what he had seen and she in turn woke Mr Frendo. The three left their home to look for the applicant and saw him walking with another male a short distance away. The applicant became aware of the presence of Mr Frendo and his wife and returned to where they were standing. Some words were exchanged between the applicant and Mr Frendo. The applicant ran a short distance to obtain a wooden stake with which he armed himself. He pursued the fleeing Mr Frendo back towards the front of his home. A struggle there ensued during which the applicant obtained a length of pipe, broke it and thrust the end into the left side of Mr Frendo's face causing a laceration to his lower left eyelid. By this time the police had been called and when they arrived the applicant was still in possession of the pipe. The applicant was arrested and police found that he had entered the home through a window having first removed the flyscreen. 9 As a result of the attack upon him Mr Frendo suffered a fracture of the medial wall of the eye socket as well as the laceration. It appears that he had some childhood trauma to that eye that had resulted in it being turned slightly prior to the attack upon him by the applicant. Although there were some complications in the treatment of the wound inflicted in the offence because it became infected, it is expected that Mr Frendo will fully recover from these injuries. A victim impact statement placed before the sentencing judge indicated the severity of the effect upon him and his family of the offences committed by the applicant and the deterioration in their enjoyment of life as a result. 10 The applicant, who was aged 20 years at the time of being sentenced, gave evidence before Judge Morgan. He explained the offence was committed because he needed money to buy cigarettes after Mr Frendo refused to give him any. He said that he had been drinking vodka prior to the offence and only remembered bits and pieces of what happened. He had been in custody since his arrest and had been undertaking courses in an attempt to overcome his abuse of alcohol. A number of certificates gained by the applicant from courses conducted in gaol were before her Honour. The applicant said that he was blind in the left eye as a result of an attack upon him and deaf in the right ear as a result of a fight. He also suffered from epilepsy. He explained that his use of alcohol prior to the offences arose from emotional upset as a result of hearing about a life-threatening illness to his child and the death of a friend. He said that he had been using alcohol since the age of fifteen. A letter written by the applicant was tendered to the court in which he expressed sorrow at the effect of his offences on his mother. When he was shown a picture of the injury he inflicted upon Mr Frendo, the applicant said, "I done a very bad job". 11 The applicant has some criminal record with appearances in the Childrens Court from 1997 when he received a control order for an offence of break enter and steal. In March 1999 he was placed on a bond for an assault and using offensive language. In August 1999 he was fined for two offences of assaulting an officer in the execution of his duty. A pre-sentence report indicated that the applicant's formative years had been marked by violence by his father toward his mother when under the influence of alcohol. He had been placed under care by the Department of Community Services on several occasions since the age of ten. His schooling was limited as a result of expulsions and truancy. He is barely literate. The applicant had a son as a result of relationship but the child died at the age of 6 weeks in early 2002. This had a detrimental effect upon him and brought the relationship to an end. 12 The applicant's position was summarised in the report as follows: "[The applicant] appears to have [ ] spent his formative years in and out of foster care placements and appears to have been exposed to domestic violence and alcohol abuse from an early age. Due to this the offender has poorly developed coping skills and tends to inappropriately deal with conflict and stress, which tends to result in the offender coming into contact with lawful (sic) enforcement. While he appears to acknowledge that he has issues in dealing with anger he appears to minimise the extent to which it has adversely affected his life. He states that he can "control" his anger and that other people torment him. He displays an immature attitude to his current situation." The officer believed that the applicant would benefit from counselling to assist in controlling his use of alcohol and anger management. 13 In determining the appropriate sentence to impose upon the applicant, the sentencing judge indicated that she would give him the full discount for his pleas of guilty which, she accepted, were given at the earliest opportunity. Her Honour did not find that the applicant was genuinely remorseful for the injury he inflicted upon the victim. 14 The first ground of appeal asserts that her Honour was in error in applying the principle enunciated in Pearce v The Queen (1998) 194 CLR 610 in relation to sentencing for multiple offences. In passing sentence, Judge Morgan said: I think that these are such serious matters, that the only penalty that can be imposed is one of full time custody. I have determined the appropriate sentence for each offence in accordance with the principles of the High Court Case of Pearce, and having regard to the principles of totality, I think that a sentence is required of a total of six and a half years and those sentences will be structured in the following way:….. Her Honour then went on to impose the sentences I indicated earlier in this judgment being a fixed term of two years for the malicious wounding and a cumulative sentence of four and a half years for the offence in the first count with a non-parole period of two years in respect of that offence. 15 The error attributed to her Honour is that she determined the total sentence first and then structured the sentences for the two offences within that sentence. It was submitted that what her Honour should have done was firstly to determine each sentence appropriate for the two offences independently, secondly to have assessed the totality of the criminality represented by the offences and thirdly to have determined the degree of concurrence or cumulation of those sentences in order to reflect her assessment of the total criminality. 16 I do not believe that the criticism is justified. I do not understand why her Honour should not be taken at her word; being that she determined the appropriate sentence for each offence and then determined the total sentence to be imposed having regard to the principle of totality. The fact that she announced what the total sentence would be before indicating how the individual sentences should be structured is not in conflict with the way that her Honour said she had determined the sentences. Pearce contains no prohibition on indicating what the total sentence should be before indicating how the individual sentences are to be structured. There is no reason not to assume that before her Honour embarked upon her sentencing remarks she would have determined what the sentence was to be both as to its individual parts and as to its total length. 17 Nor does the fact that the sentences were made wholly cumulative indicate an erroneous approach. Although the malicious wounding occurred as a result of the commission of the offence in the first count in the indictment, it was a completely separate and independent act of criminality. The applicant returned to confront Mr Frendo. He armed himself and chased him as he sought refuge in his home. He picked up the piece of pipe, broke it, and deliberately used it to wound Mr Frendo to the face. The determination of whether a sentence should be made cumulative in whole or part is a matter of sentencing discretion Hammoud (2000) 118 A Crim R 66 at [7]. There was no error in the approach her Honour took in structuring the sentence as she did. 18 The applicant is however on firmer ground in submitting that the overall sentence determined by her Honour as reflecting the criminality before her, and in particular the sentence imposed for the offence in the first count, was manifestly excessive. Her Honour indicated that she was giving the maximum discount for the utilitarian effect of the pleas of guilty: that would be twenty-five per cent. Her Honour, therefore, must have determined that the overall criminality before discount would have warranted a sentence of eight years and eight months. Notwithstanding the serious criminal conduct before her and the need for a deterrent sentence, I respectfully have formed the view that a sentence of that magnitude was not warranted. I am not persuaded, however, that this was because her Honour failed to have due regard to the applicant's aboriginality as the applicant asserts. Her Honour referred to this factor during the course of her remarks and the relevance that it had in respect of the applicant's early exposure to violence and alcohol. 19 As with all appeals based upon a ground where no specific error is identified, the Court should be careful not to attribute error simply because the Court would have imposed a lesser sentence than did the sentencing judge. Genuine respect has to be paid to the discretion residing in the sentencing judge, particularly where the judge is as experienced in the criminal law as is the judge against whom this appeal has been brought. But a ground based upon an allegation that the sentence is manifestly excessive can only be determined by a subjective reaction to the sentence imposed having regard to what statistical material might be available as to other sentences imposed for similar criminality. In the present case the material from the Judicial Commission is of limited assistance but indicates that the individual sentences imposed were towards the top of the range. 20 I note that the applicant was on bail when he committed the subject offence and that the Form 1 contains another serious example of an offence against property. The sentence imposed by her Honour had to reflect the further weight to be attributed to personal deterrence and retribution by reason of the offences taken into account, Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 at [42]. But one limit upon the effect to be given to such matters is the principle of totality. 21 The offence for which sentence was to be imposed was a serious one in its nature, being an aggravated offence of breaking into a private home, but it was far from the most serious kind of an offence falling within the class of offences for which a maximum sentence of 20 years is prescribed. I would have thought that it was on the lower end of criminality for offences of that class. I would not necessarily accept that such an offence is less serious simply because the offender is known by the occupants as the applicant submits, but all of the circumstances of this particular offence suggest to me that an undiscounted sentence of six years is manifestly excessive bearing in mind the fact that the sentence was to be served cumulatively with the sentence for malicious wounding and having regard to the subjective circumstances of the applicant. Of crucial importance in that regard was that he was an aboriginal man of twenty years of age serving a first sentence in an adult prison. 22 On the basis that the Court might find error and be required to re-exercise the sentencing discretion the Court received a recently prepared report of a psychologist, Peter Champion. From his assessment of the applicant Mr Champion believes that follow up to assist the applicant would include counselling and possibly residential placement for the applicant in relation to his use of alcohol, an ENT examination in respect of his hearing problems, a neurological appraisal, and his involvement in anger and stress management courses. The Court also received a number of inmate assessment reports that indicate that the applicant has been working well while in custody and has been attempting courses to obtain some skills that he might later put to use in the community. This confirms that the applicant is in need of, and could be assisted by, intensive intervention when released from prison. He should be provided with the opportunity for rehabilitation by a finding of special circumstances. 23 I propose that the application be granted and the appeal be allowed in respect of the sentence for the offence on the first count in the indictment. The sentence on that count should be quashed and in lieu the applicant be sentenced to three years imprisonment to commence on 24 February 2004 with a non-parole period of 6 months to expire on 23 August 2004 the date upon which the applicant is to be released to parole. It is to be a condition of his parole that he places himself under the supervision of the adult probation service. 24 TOBIAS JA: I agree with the orders proposed by Howie J for the reasons his Honour has given. 25 JAMES J: I also agree. 26 TOBIAS JA: The orders of the Court will therefore be as indicated by Howie J. ********** Last Modified: 07/28/2003 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.