R v Harris [2003] NSWCCA 177

New South Wales Court of Criminal Appeal

CITATION : R v Harris [2003] NSWCCA 177 HEARING DATE(S) : 30/05/03 JUDGMENT DATE : 30 May 2003

JUDGMENT OF : James J at 1; Smart AJ at 35 DECISION : Appeal allowed

CATCHWORDS : Criminal law - appeal against sentence - assault - alcohol related offences. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 PARTIES : Regina v Luke Patrick Harris FILE NUMBER(S) : CCA 060094/03 COUNSEL : A Francis - Applicant DML Woodburne - Crown SOLICITORS : DJ Humphreys - Applicant SE O'Connor - Crown

LOWER COURT District Court JURISDICTION : LOWER COURT 01/11/1168 FILE NUMBER(S) : LOWER COURT Finnane DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 060094/03

JAMES J SMART AJ

FRIDAY 30 MAY 2003 REGINA v LUKE PATRICK HARRIS Judgment 1 JAMES J: Luke Patrick Harris has applied for leave to appeal against sentences imposed on him in the District Court on 19 July 2002 by his Honour Judge Finnane QC 2 Judge Finnane sentenced the applicant for three offences, which were (1) assault occasioning actual bodily harm (2) breaking and entering a house and committing a serious indictable offence therein, the serious indictable offence being causing malicious damage (3) maliciously inflicting grievous bodily harm. The applicant had pleaded guilty to all three offences. In sentencing the applicant for the second offence his Honour took into account a further offence of malicious wounding. All the offences, apart from the offence to be taken into account, were committed on the same day, 25 July 2001. The offence to be taken into account was committed on 1 January 2002. 3 The victim of the first and third offences was a young woman, who I will refer to as "PL". PL was also the occupier of the house where the applicant committed the second offence. The victim of the offence to be taken into account was a man named Mark Stephens. 4 For the second offence of breaking and entering and causing malicious damage, Judge Finnane sentenced the applicant to a term of imprisonment of four years, commencing on 25 July 2002 with a non-parole period of one and a half years. The 25 July 2002 was the date on which sentences which had been imposed on the applicant in the Local Court would expire. For the first offence of assault occasioning actual bodily harm his Honour imposed a sentence of a fixed term of imprisonment of one year, commencing on 24 January 2004, that is on the expiration of the non-parole period of the sentence for the second offence. For the third offence his Honour imposed a sentence of three years, also commencing on 24 January 2004, with a non-parole period of one year. 5 Breaking and entering and committing a serious indictable offence is an offence under s 112(1) of the Crimes Act, for which the maximum penalty is imprisonment for fourteen years. Assault occasioning actual bodily harm is an offence under s 59 of the Crimes Act for which the maximum penalty is imprisonment for five years. Maliciously inflicting grievous bodily harm is an offence under s 35(1)(b) of the Crimes Act for which the maximum penalty is imprisonment for seven years. 6 In his remarks on sentence his Honour stated the facts of the offences for which he was sentencing the applicant in a way which has not been the subject of any complaint on the hearing of this application. His Honour said: "As at 25 July 2001, he was in a relationship of some kind with the victim, although he did not live with her as such. At 11.30 pm on that day they both returned to his home and a quarrel developed. He became enraged and commenced to hit (PL) around the head with a mobile phone. She, then, smashed his fish tank and kicked it to the ground. He then grabbed her and hurled her into the broken fish tank, as a result of which she sustained a severe laceration to her right hand. As she lay on the floor bleeding he then kicked her several times around the upper body and picked her up and threw her round the loungeroom. She attempted to escape by hiding. He found her and continued to assault her by biting her on the neck, throwing her up against the kitchen wall. She then managed to escape, ran out of the premises, flagged down a passing motorist and went to the Bondi police station. Following this, the offender was so enraged, still, that he went to her premises at a different location, forced entry by kicking in the front door, struggled with a flatmate of (PL), then went to the room in which (PL) lived, forced the door, and once inside the bedroom, destroyed various items of property, including a television, video and other items. Police attended. He was found standing in the kitchen area, swearing and shouting, holding a pair of scissors in his hands. There was blood on his pants which he claimed to be that of his exgirlfriiend. His only explanation for his presence in the flat was to tell the police he was on a whirlwind tour. At the police station he was still agitated and aggressive, was screaming, shouting, kicking and punching the walls of the dock and spitting on the floor". 7 The charge of maliciously inflicting grievous bodily harm was based on the act of grabbing PL and hurling her into the broken fish tank, as a result of which she sustained a severe laceration to her right hand. PL was admitted to hospital and a surgical procedure was performed on her hand. 8 In his remarks on sentence his Honour found that the cause of the applicant's behaviour was his consumption of alcohol. He had drunk ten to fifteen middies of Bourbon and Coca Cola. 9 It is useful to set out a short chronology of some of the events which were referred to by his Honour in his remarks on sentence. 10 As I have already stated, the three offences for which the applicant was sentenced were all committed on 25 July 2001. On 26 July 2001 the applicant was arrested, charged and released on conditional bail, including a condition that he not engage in conduct which would intimidate PL. On 6 September 2001 PL obtained an apprehended violence order against the applicant in a Local Court. On 16 November 2001, having pleaded guilty in the Local Court to these three charges, the applicant was committed for sentence to the District Court. On 25 November 2001 the applicant was arrested and charged with contravening the apprehended violence order. On 1 January 2002 the applicant committed the offence of maliciously wounding Mr Stephens. He was arrested and charged with that offence and released on bail. 11 On 18 January 2002 the applicant appeared before his Honour Judge Finnane. On that day his Honour made an order adjourning the proceedings on sentence for approximately five months. His Honour made this order pursuant to s 11 of the Crimes (Sentencing Procedure) Act, which permits a court to defer sentencing an offender for the purpose of assessing the offender's capacity and prospects of rehabilitation. His Honour directed that the applicant submit to the supervision and guidance of the Probation and Parole Service in regard to anger management and the consumption of alcohol. 12 When his Honour made these orders on 18 January 2002, his Honour had not been made aware of the offence which the applicant had committed on 1 January 2002 against Mr Stephens. 13 On 26 January 2002 the applicant was again arrested and charged with contravening the apprehended violence order of 6 September 2001 and also with assault and resisting arrest. He was refused bail. 14 On 28 June 2002 the proceedings on sentence were resumed. On that day Judge Finnane stood over the proceedings on sentence to 12 July to enable the suitability of the applicant for admission to a rehabilitation program conducted by the Salvation Army to be assessed. 15 On 10 July 2002 the applicant was sentenced in the Local Court to concurrent fixed terms of imprisonment of six months, commencing on 26 January 2002, for the offences of assault and resisting arrest and to a term of imprisonment of twelve months with a non-parole period of six months, commencing on 26 January 2002, for the two contraventions of the apprehended violence order. 16 On 12 July Judge Finnane was informed that the applicant had been assessed and had been found unsuitable for admission to the Salvation Army program. The proceedings on sentence were continued on 18 July and concluded on 19 July. 17 In his remarks on sentence his Honour, apart from stating the facts of the offences for which he was sentencing the applicant, stated the facts of the offence to be taken into account. The offence was committed at a hotel. At about 3 o'clock in the morning the applicant, who had been drinking heavily, struck the victim on the back of the victim's head with a beer glass, causing lacerations to the victim's head and neck. His Honour commented that it was a completely unprovoked attack on a person the applicant did not know in a public place. 18 In his remarks on sentence his Honour said that the purpose of adjourning the proceedings on sentence on 18 January 2002 had been frustrated by the applicant's own conduct in committing the further offences a few days later on 26 January. His Honour concluded that on 18 January 2002 the applicant had not seriously intended to do anything about his problems with alcohol or violence. His Honour referred to a report by a psychologist, which his Honour considered did not show that the applicant was suffering from any mental disorder. His Honour said: "What he suffers from is alcoholism, something which he refuses to do anything about in any meaningful way." 19 His Honour found in favour of the applicant that the applicant genuinely regretted assaulting PL and Mr Stephens. His Honour noted that PL had continued to associate with the applicant. However, his Honour said: "Giving him a chance has proved to be little more than affording him the opportunity of going out and committing the same offences against the same person again...I do not intend to fall into that error again." 20 His Honour found in favour of the applicant that he had had a good work history and was well regarded when he was not drinking. 21 In counsel for the applicant's submissions counsel referred to some further subjective features of the applicant. At the time he was sentenced the applicant was thirty nine years old. He had been in a personal relationship with PL since June 2000 and at the time he was sentenced PL was pregnant with his child. At the time he was sentenced the applicant had no recent criminal history, apart from the criminal history to which I have already referred. The psychologist who had assessed the applicant was of the opinion that his prospects of rehabilitation were good provided that he received proper supervision and counselling. 22 On this application it was submitted by counsel for the applicant that parts of his Honour's remarks on sentence, where his Honour was explaining the sentences he was imposing for the various offences, were inconsistent with each other. It was submitted that this inconsistency had produced error in the sentencing process and in particular in the consideration of the question of accumulation or concurrence of sentences and had enlivened this Court's discretion to intervene. It was submitted that the sentencing judge had erred in considering whether the sentences should be accumulated or made concurrent and that the sentences were manifestly excessive. 23 Counsel for the Crown submitted that there had not been any inconsistency in the sentencing judge's remarks on sentence, if those remarks were properly understood; and that the sentencing judge had not erred in his consideration of whether the sentences should be accumulated or made concurrent. It was submitted that the sentences were not manifestly excessive and that no lesser sentences would be warranted. 24 In my opinion, there is inconsistency between two parts of his Honour's remarks on sentence. On page 10 of his remarks on sentence his Honour said that the sentences he was imposing for the first and third offences would each commence on 25 July 2002, the same day as the sentence for the second offence would commence, and hence those two sentences would be served fully concurrently with part of the sentence for the second offence. However, on page 11 of his remarks on sentence, his Honour said that both the sentence for the first offence and the sentence for the third offence would commence on 24 January 2004. His Honour did not in his remarks on sentence give any explanation which would resolve this inconsistency. 25 It may be that his Honour, in the course of delivering his remarks on sentence, simply changed his mind and determined that the sentences for the first and third offences should not commence on the same day as the sentence for the second offence but should be made to commence on the expiration of the non-parole period for the second offence. However, the inconsistency between what his Honour said on page 10 and what his Honour said on page 11 of his remarks on sentence is troubling and, as I have previously observed, his Honour did not in his remarks on sentence provide any explanation for this inconsistency. 26 I have been persuaded that because of this unexplained inconsistency in his Honour's remarks on sentence this Court should intervene and should determine in the exercise of its own discretion whether it would impose any lesser sentences than his Honour did. 27 I have taken into account the objective facts of the offences and the subjective circumstances of the applicant. I have also taken into account some additional material which the Court conditionally received in the event of its coming to re-sentence the applicant. I have reached the conclusion that the lengths of the sentences imposed by his Honour were appropriate and that sentences of lesser length would not be warranted. However, I have concluded, particularly having regard to the fact that all of the offences for which his Honour was sentencing the applicant were committed on the same day, 25 July 2002 and that they all arose out of what appears to have been a somewhat turbulent relationship with PL, that there should be a somewhat greater measure of concurrency between the sentences than his Honour determined. 28 In my opinion, an appropriate sentence for the second offence of breaking and entering and causing malicious damage would be the same sentence as was pronounced by his Honour, that is a sentence of four years commencing on 25 July 2002, with a non-parole period of one and a half years commencing on 25 July 2002 and expiring on 24 January 2004. 29 I consider that sentences of the same length as the sentences passed by his Honour would be appropriate for the other two offences, that is a sentence of a fixed term of imprisonment of one year for the offence of assault occasioning actual bodily harm and a sentence of three years for the offence of maliciously inflicting grievous bodily harm. However, instead of making each of these last two sentences commence at the expiration of the non-parole period of the sentence for breaking and entering and causing malicious damage, that is on 24 January 2004, I would make each of these sentences commence from 25 July 2003. The overall effect of the sentences I propose is that the applicant would be sentenced to terms of imprisonment totalling four years, with non-parole periods or fixed terms of imprisonment totalling two years. 30 I would propose the following orders: leave to appeal granted, appeal allowed. Although the sentences I propose are similar in many respects to the sentences Judge Finnane imposed, it is convenient for the sentences imposed by Judge Finnane to be quashed in toto and for me to state the sentences I propose in full. 31 Sentences imposed by Judge Finnance quashed. In lieu thereof, for the offence of breaking and entering and causing malicious damage, taking into account the offence of malicious wounding, the applicant be sentenced to a term of imprisonment of four years, commencing on 25 July 2002 with a non-parole period of one and a half years, commencing on 25 July 2002 and expiring on 24 January 2004. 32 For the offence of assault occasioning actual bodily harm the applicant be sentenced to a fixed term of imprisonment commencing on 25 July 2003 and expiring on 24 July 2004. 33 For the offence of maliciously inflicting grievous bodily harm the applicant be sentenced to a sentence of three years, commencing on 25 July 2003 with a non-parole period commencing on 25 July 2003 and expiring on 24 July 2004. The earliest date on which the applicant will be eligible for release on parole will be 25 July 2004. If there are any errors in my dates, please tell me. 34 WOODBURNE: No your Honour, I think that's correct. 35 SMART AJ: I agree. 36 JAMES J: The overall effect is sentences for four years, fixed terms or non-parole periods two years. 37 The orders of the Court will be as proposed by me. 38 WOODBURNE: Your Honour, I've just been informed by my instructing solicitor that the effect of the overall sentence is five years, to date from 25 July 2002, the three year sentence dates from 25 July 2003, expires - I'm sorry. It was absolutely correct but in this matter we need to be very careful. 39 JAMES J: Yes. 40 SMART AJ: A lot of juggling. 41 JAMES J: I think it is right. It's made a bit confusing because his Honour took the offence that I've described as offence number 2 and sentenced on that first. 42 WOODBURNE: Yes. 43 JAMES J: The break and enter and do malicious damage is four years from July 2002, the maliciously inflicting grievous bodily harm is three years from July '03. 44 WOODBURNE: Yes, which makes it 2006. 45 JAMES J: It's a total of four years. 46 WOODBURNE: And that is definitely four years, yes, I'm sorry.