New South Wales Court of Criminal Appeal CITATION : REGINA v. HOLMES & RATU [2003] NSWCCA 258 HEARING DATE(S) : Thursday 11 September 2003 JUDGMENT DATE : 11 September 2003 JUDGMENT OF : Spigelman CJ at 1/41; Hidden J at 42; Greg James J at 2 DECISION : Grant leave to appeal; appeals dismissed. CATCHWORDS : Criminal law - appeal - sentence - special circumstances - non-parole period - failure to find particular matters as special circumstances - whether amounting to legal error - failure to specify shorter non-parole period - whether legal error - necessity for appeal court to be persuaded some other sentence is warranted in law and should have been passed. Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999 CASES CITED : Simpson (2001) 126 A. Crim R. 525 PARTIES : REGINA v. HOLMES, Barney Bernard REGINA v. RATU, Jeremaia FILE NUMBER(S) : CCA No. 60184 of 2003;; No. 60183 of 2003 COUNSEL : Crown: M. Grogan Appellants: S. Odgers, SC. SOLICITORS : Crown: C.K. Smith Appellants: B. Sandlands LOWER COURT Supreme Court JURISDICTION : LOWER COURT No. 70051/01; 70208/01 FILE NUMBER(S) : LOWER COURT Levine, J. JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL No. 60184 of 2003 No. 60183 of 2003 SPIGELMAN, CJ. HIDDEN, J. GREG JAMES, J. FRIDAY 11 SEPTEMBER 2003 REGINA v. BARNEY BERNARD HOLMES REGINA v. JEREMAIA RATU Judgment 1 SPIGELMAN, CJ: I will ask Greg James, J. to deliver the first judgment. 2 GREG JAMES, J: These are applications for leave to appeal against sentences in each case imposed upon the applicants by Levine, J. in the Supreme Court of New South Wales in consequence of pleas of guilty in each case to the crime of murder. 3 Similar sentences were imposed on each of the applicants by his Honour, those sentences providing for sentences of 16 years to date from 26 February 2000, the date upon which the applicants went into custody, to expire on 25 February 2016, and associated with each sentence were non-parole periods of 12 years imposed by his Honour, commencing upon that date and expiring 25 February 2012. 4 The maximum penalty provided by the Crimes Act 1900 for the crime to which each of the applicants pleaded guilty was imprisonment for life. 5 His Honour, in his remarks on sentence, referred to the circumstances of the commission of the crime for which each of the applicants came forward. I summarise what his Honour said in this regard. 6 At about 3.00 am on the morning of 26 February 2000, the deceased, a taxi driver, had been hailed at Dulwich Hill by four young men, two of whom were the two applicants. They had been to a 21st birthday party. They were all highly intoxicated. They had decided that they would not pay the taxi driver, but would run away. 7 The cab being stopped at a street in Granville, the offenders alighted from the cab. The driver also alighted. Thereafter there was a physical altercation, during which the driver challenged the applicant Ratu with a punch and was thereupon set upon by both of the applicants, who kicked and punched him. 8 There was material before the trial judge showing the extent and the severity of this episode of kicking and punching, and in Mr. Ratu's second electronically recorded interview a description of the actions that he used. The trial judge concluded that the acts of kicking and punching continued over a period of at least 10 minutes, during which period the deceased became helpless on the road. The deceased died some 12 hours later from the combined effects of the kicking and punching, and also of a stabbing. As to that latter, the trial judge said this:- "It is unquestionably the case that Mr. Singh Suri was stabbed. It is equally unquestionably the case that the Crown has no case against these offenders in relation to that stabbing. Both denied it. The stabbing is, therefore, a factor which is set to one side completely." 9 It is apparent that the trial judge in his consideration of what course should be taken set aside the stabbing as he had said, and we too, after examination today, of such medical material as there was before the trial judge, should treat the matter as the trial judge did in respect of each applicant. That is to say, by putting aside the stabbing and having regard to the trial judge's findings that this, in each case, was a case of a kicking or punching, accompanied by no intent to kill, but an intent to cause grievous bodily harm. 10 The trial judge found in the applicants' favour there was no intention to rob. He found that they were drunk. He held, and there could be no quarrel with this finding, that the deceased died as a result of a drunken, cowardly, vicious physical attack, which exploded suddenly when he sought to prevent fare evasion. His Honour referred to the human tragedy and to the gravity of the crime, and the necessity the courts have emphasised in case after case that assaults on taxi drivers will not be tolerated by the courts. 11 He expressed his view of the offence that it was a homicide of a taxi driver in an explosion of drunken violence, as involving conduct which requires punishment; punishment which requires due weight to be given to general deterrence. 12 His Honour referred to the subjective circumstances of the two applicants. In the case of the applicant Ratu, he was 18 at the time of the offence, with no relevant antecedents, stable family background, but had apparently embarked upon drinking and drug taking without realisation, his Honour found, of the perils that presented for his future. His Honour gave weight to the applicant's plea of guilty as having been made at the earliest possible opportunity. 13 The Crown case rested upon admissions made by him. The trial judge reached the view those circumstances should be taken into account when considering the discount for the early plea. He found too, evidence of remorse and contrition in a most genuine sense. He was of the view that an appropriate discount in the circumstances for the plea of guilty was a discount in the order of 25%. He found the applicant's prospects for rehabilitation to be good, and he found that the applicant had, whilst young, a self-awareness of his wrongdoing and had continued to evince remorse and contrition whilst in custody. 14 Of the applicant Holmes his Honour noted that he was 21 years of age, coming from a stable family and community background, and whilst he had some prior antecedents they were not such as needed to play any role in the disposition of the punishment for the crime. He was dangerously drunk, his Honour found, and although initially less than co-operative, when he, as with the other applicant, learned the truth of what had happened to Mr. Suri, became co-operative with the police. 15 His Honour made the same findings as to the timing of the plea of guilty in his case as he did with the applicant Ratu, and similarly found contrition and remorse. His Honour adverted to the application of the matters that he had found, to the need for personal deterrence, but reached a view that such a crime required a substantial element of general deterrence. 16 His Honour concluded, having regard to all considerations, in particular his observation that he should not draw a distinction between the offenders, and that it was not a case that called for the throwing away of the key, nor for undue emphasis on considerations personal to the offenders, that an appropriate sentence, recognising the gravity of the crime, required a head sentence in each case of 16 years, as I have said. 17 In relation to the question of the appropriate non-parole period, his Honour reflected upon submissions as to special circumstances, but in the end concluded that there were no special circumstances requiring any further extension of that parole period additional to the lengthy parole period that would by statute apply to the sentence to be imposed. 18 In the passage in his remarks on sentence dealing with this matter, there appears a reference to a lengthy "non-parole period". In the submissions of senior counsel for the applicants it is accepted that that is a misprint or misstatement, such that his Honour must have been referring to the period during which the applicants might have the opportunity to be liberated on parole after the expiry of their non-parole period, and before the expiration of the head sentence. 19 On the appeal the submissions have been confined to the question of the appropriate non-parole period. Written submissions have been filed in respect of each applicant, each of those submissions have set out important aspects of each applicant's circumstances to which the court's attention has been drawn, which are matters which might have been considered by the trial judge as special circumstances. In each set of submissions it has been contended that the trial judge fell into error in having failed to identify special circumstances in the matters adverted to, and thus having erred in imposing the non-parole period that he did. 20 It has been submitted that a shorter non-parole period could have been imposed, notwithstanding the head sentence of 16 years, and that that non-parole period would be at or in excess of a non-parole period of some 10 years. 21 It is not necessary in my view to reiterate in this judgment the numerous matters referred to by Mr. Odgers, SC. in his written submissions, as being matters which are capable of amounting to special circumstances. As I understand the submissions put by the Crown, no issue is taken with those matters as being capable of constituting special circumstances in an appropriate case, either individually or in combination. 22 There are contended to be two grounds upon which it is asserted his Honour erred in principle in the way he dealt with the matters so capable of being found to be special circumstances. The first matter asserted is that it is contended that his Honour didn't consider whether there should have been a shorter non-parole period, in that the principle he appears to have applied in the passage to which I have referred in the remarks on sentence seems to have required him to identify as special circumstances only such circumstances, the effect of which, would operate to lengthen the parole period, and to reject circumstances which would have had more direct impact upon producing a shorter non-parole period. 23 His Honour's decision was reached on the day prior to this court providing guidance to sentencing judges by the decision of the court constituted by five judges in Regina v. Neil Andrew Simpson (2001) 126 A. Crim. R. 525, where detailed consideration was given to the concept of special circumstances, as that concept has been used in relation to the proportions, minimum terms and non-parole periods have borne to head sentences under various sentencing regimes, since the concept of a non-parole period was introduced into New South Wales law. 24 As it happened, Simpson (supra) concerned specifically the legislation as it stood at the time that his Honour was required to sentence the applicants. Section 44 of the Crimes (Sentencing Procedure) Act 1999 as it then stood, is set out in the judgment of the Chief Justice, a judgment with whom the other justices of the court agreed, Sully, J. adding some remarks for himself. As s.44 stood at the time, it was incumbent upon a sentencing judge, firstly, to set the term of the sentence and then, secondly, to set a non-parole period for that sentence. That period is referred to by s.44(1)(b) as being the minimum period for which the offender must be kept in detention in relation to the offence. 25 Section 44(2) provides that the non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less. It is those words "special circumstances" as there used, on which the applicants' applications for leave to appeal in the present matters focus. 26 The second error asserted is that his Honour unreasonably failed to find as special circumstances the various matters to which I have made reference, which were matters which it was conceded his Honour took into account in fixing the head sentences, but apparently, so it is asserted, rejected as possibly amounting to special circumstances, either individually or in combination, when he turned to fixing the non-parole periods. 27 It is accepted that the head sentences could not be considered to be manifestly inadequate and beyond the range of a proper sentence in each case. It is accepted in the argument that the non-parole period on its face, so far exceeds a proper sentence that it too, should be characterised as manifestly excessive. The course taken, however, was that counsel referred us to a number of cases in which the same factors as were submitted were required to be considered here were found by other trial judges, or this court, to be special circumstances and to have had appropriate application such as to reduce the non-parole period/head sentence proportion, with a view to seeking to establish that his Honour's views in relation to those factors were so far out of accord with other views, as to show error. 28 But it was conceded in the argument that the question of whether or not a matter or matters taken in combination did nor did not constitute special circumstances remains a matter for the discretionary judgment of the trial judge, and that there was no blanket rule the trial judge was compelled to follow. Nonetheless, it was asserted that in these two ways in these cases, his Honour fell into error, such that this court should interfere upon the basis referred to in s.6(3) of the Criminal Appeal Act 1912, and that some other non-parole period warranted in law should have been passed. 29 All the relevant matters to which the court was referred in the cases cited seem to be found in the facts here, including: that these were the first times in custody; the youth of the applicants; their prospects of rehabilitation; the very extensive length of the sentences; the probable necessity for special attention whilst on parole; the lack of premeditation; the crimes having been committed whilst intoxicated and during a short burst of furious criminality not otherwise indicated by the applicants' record, and are clearly capable of constituting special circumstances, and are clearly capable of being taken into account to shorten the non-parole period that might have been imposed. 30 Although there is nothing in Simpson (supra) suggesting to the contrary, there is nothing to suggest that it was incumbent on a sentencing judge to find such facts and to give them that effect. 31 I am not persuaded that although those facts were present, the trial judge fell into error by unreasonably failing to find that they were special circumstances, even in the context that other courts and other judges in other cases had. 32 I return to that passage to which I had earlier referred in the trial judge's remarks on sentence. I do not, for myself, read that passage as an expression by the trial judge that he had adopted a principle which would require him to disregard those matters which are otherwise relevant, unless he concluded that they had to have, whether considered individually or in combination, the effect of requiring an extension to the parole period. 33 Another way of my putting this is to say that I don't see that the trial judge failed to have regard to those matters as possibly warranting a reduction in the non-parole period. In Simpson (supra) there is reference in the judgment of the Chief Justice to the necessity to bear in mind that there is some artificiality involved in approaching the issue in two steps. At 539 his Honour referred to the point of making a finding of special circumstances:- "... The only point in making a finding of 'special circumstances' is to make the 'decision' for which s.44 provides. By s.44(2) the non-parole period is not to be less than three-quarters of the head sentence 'unless the court decides there are special circumstances for it being less'. This qualificatory clause requires a 'decision' by application of the composite requirement that the 'circumstances' be sufficiently 'special' for the statutory proportion to be reduced." 34 His Honour went on to hold that the case law does not justify a restrictive approach to the scope of considerations relevant to the determination by the court of what constitutes special circumstances in a particular case. 35 He had regard, as I have said, to the purpose of the task of identifying special circumstances. He referred to the nature of the statutory guide or fetter which operates in only one direction. He said:- "It is a hurdle to be overcome if a lower proportion than that for which the statute provides is to be determined .... " 36 That is a hurdle which may or may not be overcome in the judgment in the exercise of discretion of an individual sentencing judge. There is the ultimate constraint that the non-parole period must itself in some way appropriately reflect the criminality involved in the offence. It would be an error to consider that the same factors affect both non-parole period and head sentence, without there being any variation in the effect of those factors on each, but it is to allow for that variation that special circumstances were provided as an exception to the statutory proportion. 37 In the event that there is an application for leave to appeal on such a ground as a trial judge falling into error in the exercise of a discretionary judgment in identifying and evaluating that what is said to amount to special circumstances, it is necessary to see, as the Chief Judge put it, at page 540 in Simpson (supra), whether the challenge is on the basis of legal error, including in terms of quantum alone, that it was manifestly excessive or manifestly inadequate. This will, as the Chief Justice pointed out, often be the primary issue. 38 He referred to the disputation that has occurred as often confusing matters of fact and matters of judgment with propositions of law. He referred to the nature of the decision for the trial judge. The decision is first one of fact to identify the circumstances and secondly, one of judgment:- "... to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter, there are unlikely to be many cases in which this court will interfere, unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 39 I have given this matter anxious consideration but in my view I am not persuaded that this is one of those cases in which the court is entitled by application of s.6(3) of the Criminal Appeal Act 1912 to interfere, and particularly is that so because I am not persuaded, having regard to the decision in Simpson (supra), that the trial judge fell into the errors asserted, and it is conceded that neither the head sentences nor the non-parole periods are manifestly excessive. 40 I would grant leave to appeal but dismiss the appeals. 41 SPIGELMAN, CJ: I agree. 42 HIDDEN, J: I agree. 43 SPIGELMAN, CJ: The order is that leave to appeal is granted. The appeals are dismissed. ********** Last Modified: 09/17/2003 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.