New South Wales Court of Criminal Appeal CITATION : Regina v Joseph Brian DICKINSON [2004] NSWCCA 457 HEARING DATE(S) : 16 December 2004 JUDGMENT DATE : 16 December 2004 JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 2; Barr J at 3 DECISION : Appeal allowed and sentence quashed. Respondent sentenced to a fixed term of imprisonment of 2 years and 2 months, to be served as periodic detention. PARTIES : Regina v Joseph Brian DICKINSON FILE NUMBER(S) : CCA 2004/2361 COUNSEL : D Howard SC H Dhanji SOLICITORS : S Kavanagh Legal Aid Commission LOWER COURT District Court JURISDICTION : LOWER COURT 04/31/0005 FILE NUMBER(S) : LOWER COURT Armitage QC DCJ JUDICIAL OFFICER : - 3 - IN THE COURT OF CRIMINAL APPEAL WOOD CJ AT CL SIMPSON J BARR J 16 DECEMBER 2004 REGINA v JOSEPH BRIAN DICKINSON Judgment 1 WOOD CJ at CL: I will ask Barr J to deal with the matter. 2 BARR J: This is an appeal by the Crown against what is said to be the inadequacy of a sentence imposed upon the respondent Joseph Brian Dickinson in the District Court. The respondent was committed for trial on a charge of wounding with intent to murder and on the day of his arraignment, following negotiations that had taken place between the two sides, he pleaded not guilty to that charge but guilty of an offence charged in the alternative, namely malicious wounding with intent to do grievous bodily harm. The Crown accepted his plea in discharge of the indictment. 3 The offender was in a relationship with a young woman called Amanda Downey. The relationship continued on and off for about four years before it ended in about January 2003. A daughter was born of the relationship. She was about one year ten months of age at the time of the events giving rise to the charge. The offender was very fond of her and had frequent access to her including, it appears, daily access by telephone. 4 On 15 July 2003 Miss Downey was at home as usual with the child. With them was a young man with whom Miss Downey had become involved, the complainant Thomas Gary Pennell. They had dinner and at about 8pm Miss Downey left the house to purchase alcohol. While she was out of the house the respondent made a number of telephone calls, one by voice message to Miss Downey's mobile telephone asking her whether he could have access to the child on the following day. In another he telephoned the house and Mr Pennell answered in the absence of Miss Downey. He asked to speak to Miss Downey and Mr Pennell told him she was not at home. He said he would telephone later and Mr Pennell asked his name. The respondent did not answer but ended the call. In a third call the offender left a voice message on Miss Downey's mobile phone asking who was at the house with his daughter. He said that she was a slut and that he was going to the house to find out who the man was. 5 As Miss Downey was arriving home at about 8.30pm the offender again telephoned her on her mobile telephone. He demanded to know who was there with his daughter and required to speak to him. Miss Downey handed the telephone to Mr Pennell and he spoke to the offender. The offender told him that he was making a big mistake and that he was going to get a good hiding or get hurt. The offender said that he was going to the house straight away. 6 Miss Downey was afraid that the offender might indeed go to the house and telephoned her brother-in-law and asked him to go there as soon as possible. The brother-in-law responded by driving to the house. He parked his car in the driveway. Mr Pennell went to the front door and, as he did so, bent to tie his shoe laces, holding the screen door open with one knee. At that moment the offender drove up in his car, stopped the car and got out. He went for Mr Pennell with a carving knife which he held in his right hand about level with his head. In order to stop himself from being stabbed Mr Pennell took hold of the blade of the knife with both hands. Even so, the tip of the knife came into contact with his chest and caused a superficial cut. The offender kept pushing with the knife and Mr Pennell kept a firm hold of the blade. The cutting edge of the blade was against the palm of his left hand and as the two men struggled the knife inflicted a very serious injury on Mr Pennell's hand. Miss Downey's brother-in-law punched and kicked the offender and, in the end, Mr Pennell was able to pull the knife out of the offender's grip. 7 Mr Pennell was taken by ambulance to hospital where these injuries were noted; namely, a minor laceration to the right anterior chest, a minor laceration over the palm of the right hand and a flap laceration of the left hand extending down the thumb deep through the muscle bulk. There was also a laceration of the proximal phalanx of the middle finger. He was taken to the operating theatre on the following day and there was noted to be a seventy percent laceration of the large muscular body at the base of the left thumb. The laceration was repaired and the middle finger wound was explored. 8 Mr Pennell was reviewed on 22 July and the wounds were healing. On 29 July he reported decrease in feeling in the middle of the distal phalanx of the thumb. Physiotherapy was done on the hand and on 12 August the wounds were noted to have healed. There was good grip and strength. A photograph of the partially healed wound shows that Mr Pennell must have been permanently scarred. 9 The respondent was twenty-five years old at the time of the offence. He had had a difficult childhood and a good deal of detail about that was put before the sentencing judge. The features of it that need to be mentioned here include that he was diagnosed at an early age as suffering from type one diabetes, and for the last ten years or so before sentence from a condition that caused him to vomit. It is not clear whether the two conditions are connected but the latter problem interferes with his eating which in turn interferes with his taking insulin, which he has to do twice a day. 10 He misbehaved a good deal as a child and was described as rebellious and disruptive at school. When he was twelve years old an older cousin sexually assaulted him over a period of perhaps a year. He told his mother, but such was the way in which he was generally misbehaving at the time that she did not believe him. The assaults had an effect on him and he was still distressed about them when he saw a psychologist, Miss Aldrich, who prepared a report for the Court. 11 The respondent began smoking marijuana when he was twelve or thirteen years old and was still justifying his use of it to control his appetite and thereby his vomiting attacks and indirectly his diabetes. 12 The respondent left High School after Year 10 and did a number of jobs. Eventually he became an invalid pensioner. 13 Miss Aldrich administered tests and concluded the respondent was depressed. The sexual assaults, she said, had left him with post traumatic stress disorder. She expressed the view that as a result of them he had become "terribly protective" of his daughter and that it was his deep fear for her that precipitated the attack on Mr Pennell. She also observed, paradoxically perhaps, that he was not a particularly violent or problematic person. She did not see the incident as part of any pattern of anti-social behaviour. 14 Dr Westmore, psychiatrist, saw the respondent. He agreed that he did not have an anti-social personality. He noted that he had suffered episodes of despondency and anxiety but did not diagnose depression or any other mental illness. He noted that there had been no psychiatric care in adulthood. 15 In his accounts to Miss Aldrich and Dr Westmore the respondent claimed to remember nothing of his attack on Mr Pennell. 16 His Honour sentenced the respondent to imprisonment for two years with a non-parole period of twelve months and ordered that the sentence be suspended upon the respondent's entering into a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 conditional upon his - (i) being of good behaviour; (ii) appearing before the Court if called upon at any time during the term of the bond; (iii) informing the Registry of any change of residential address within seven days; and (iv) accepting the supervision and guidance and complying with all reasonable directions of the Probation & Parole Service. Supervision was ordered to continue for such period as the Probation & Parole Service considered necessary. 17 His Honour made no finding whether the respondent's claim of amnesia was genuine. 18 His Honour was concerned to establish why he had attacked Mr Pennell. There are these passages in the remarks on sentence - I accept that the offender was genuinely very concerned for the welfare of his young daughter. However, the fact of the matter is that, looked at objectively, there is no logical basis for the fears held by him. One can readily understand that he would be keen to visit the house and see who it was that his ex partner had formed a relationship with. However, it is impossible to understand why he would threaten a person he had never met over the telephone, then perpetrate upon him a vicious, unprovoked attack, that the victim was lucky to survive. 19 His Honour later said this - Although the medical evidence is scant it may well be that the offender's diabetes and a failure on his part to attend to it carefully were contributing factors in the commission of the offence. 20 And later - I accept that the offence was committed because the offender genuinely but quite unreasonably held fears for the safety of his daughter. 21 The thrust of the Crown case on appeal is that the sentence was insufficient to reflect the objective seriousness of the offence, even after proper allowance for the strong subjective features of the case. However, it is necessary first to deal with two more particular attacks made on the sentence. 22 The first is that his Honour failed to regard the use of the carving knife as an aggravating feature. The Crown invited his Honour to do so but his Honour declined, observing that every malicious wounding case involved the use of a weapon and that for practical purposes the use of a knife was an element of the offence. When later listing the aggravating features of the offence by reference to the Crimes (Sentencing Procedure) Act s 21A his Honour omitted any reference to the knife. 23 No doubt many, and perhaps most, malicious wounding charges involve the use of a weapon, but it is not necessary that they do so and the use of a weapon is not an element of any such offence. This Court has frequently observed that the use of a knife is a feature which specially aggravates the seriousness of an offence: see Regina v Underhill Court of Criminal Appeal 9 May 1986, unreported, and Regina v Watt Court of Criminal Appeal 2 April 1997, unreported. Both are cases of malicious wounding with intent to do grievous bodily harm in which knives were used. 24 In my opinion, the respondent's use of the knife aggravated his criminality and should have been so regarded. 25 The maximum penalty for the offence of which the respondent pleaded guilty is twenty-five years. The provisions of Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act apply. By s 54A and the table therein referred to the standard non-parole period for the offence is seven years. 26 His Honour considered the standard non-parole period and whether there were reasons not to impose it. His Honour said this - I answer that question by reference to the objective seriousness of the offence which is considerable and the facts which relate directly to its commission. I accept that the offence was committed because the offender genuinely but quite unreasonably held fears for the safety of his daughter. I also have regard to the circumstances of aggravation and the circumstances of mitigation to which I have already referred and is incorporated by the general provisions in 21(1)C and by the concluding sentence in s 21A(1). Having regard to those matters I have come to the view that there are reasons for not imposing the standard non-parole period. Having regard to all the circumstances of the case to which I have already referred it is not, in my view, a case which falls into the mid range of seriousness for an offence of its kind. It falls somewhere below that. In imposing sentence I have regard, in particular, to the objective seriousness of the offence and the very strong subjective case raised by the offender... 27 The aggravating and mitigating features to which his Honour referred are these - Aggravating: The injury to Mr Pennell was substantial; Mitigating: The offence was unplanned, the respondent had no relevant criminal record, was of prior good character, was unlikely to reoffend, had good prospects of rehabilitation, was remorseful and had pleaded guilty. 28 The Crown submitted that his Honour, having decided that the offence did not fall into the mid-range of seriousness for the purposes of applying the standard non-parole period, failed to consider the standard non-parole period as a guide to the sentence he should impose. His Honour was undoubtedly required to do so. A decision that a sentence falls below the mid-range of seriousness does not render the standard non-parole period irrelevant: see Regina v Way [2004] NSWCCA 131 at para 122. See also Regina v Davies [2004] NSWCCA 319. 29 However, that submission could be made good only by reference to the length of the sentence itself. That is why I have said that the real substance of the attack on the sentence is that it simply failed to give effect to the seriousness of the case. 30 Approaching this matter with the caution which must attend the consideration of any appeal by the Crown against a sentence, I am compelled to the view that the sentence was inadequate. The attack was of a most serious kind. Although it was carried out without any detailed planning it was not committed on the spur of the moment. Having made his threat, the respondent had to arm himself and then drive to Miss Downey's house. That took fifteen or twenty minutes. The respondent attacked Mr Pennell as soon as he saw him and without provocation. He had no reason to believe, and apparently did not believe, that Mr Pennell had done any harm. When his object was thwarted he pressed on with determination and a more serious result was averted only by the intervention of Miss Downey's brother-in-law. The injury to Mr Pennell's hand was serious. The use of the knife aggravated the respondent's criminality. 31 The respondent mounted a strong subjective case. Although he had a criminal record it contained no offence of violence. He pleaded guilty and was remorseful. He had good prospects of rehabilitation. The most perplexing question was why the respondent committed the offence at all and in view of the fact that his Honour found it impossible to answer that question some doubt must attend the conclusion that the respondent was unlikely to reoffend. 32 His Honour's findings show that the respondent was consumed by a deep but unjustified fear about the welfare of his daughter in the presence of strangers. It might have been thought Miss Downey might continue to entertain friends in the presence of her daughter, including male friends, and that might have led to an apprehension that, untreated, the respondent would react in the same way again. Evidence put before this Court, however, shows that the position has now changed. 33 Even the strongest subjective case, which this was not, must not be allowed to attract a sentence that fails properly to reflect the objective seriousness of the offence. In R v Dodd (1991) 57 A Crim R 349, this Court said at 354 - As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case: Rushby [1977] 1 NSWLR 594. 34 The maximum prescribed penalty of twenty-five years imprisonment shows how seriously the Parliament regards this offence. 35 It seems to me that his Honour erred in giving too little weight to the objective seriousness of the respondent's criminality and too much weight to the favourable features of his subjective case. In my opinion no sentence less than one of full-time custody would have been appropriate. 36 The respondent has been subject to the order appealed from since 27 August 2004 and has abided by the conditions imposed, including the conditions that he be of good behaviour and subject himself to the supervision of the Probation & Parole Service. 37 In his own affidavit, read on appeal, the respondent has informed the Court that the officer assigned to him encouraged him to see a psychiatrist and attend a domestic violence course. As a result, he has been referred by his general practitioner to a psychiatrist and has been put on a new regime of medication. He reports that his diabetes seems better managed than before and that his vomiting has stopped. His general practitioner, Dr Mikula, has written a report which confirms some of the things that he has said in his affidavit. 38 The respondent has entered, as recommended, upon the domestic violence course and feels that he is doing well and gaining understanding from his participation in it. 39 This evidence, it seems to me, entitles this Court to conclude confidently that the respondent is unlikely to reoffend and is well on the way to rehabilitating himself. 40 This being a Crown appeal, it is necessary to impose the lowest reasonable sentence in substitution that could be imposed. Although I would at first instance have imposed a sentence of full-time custody I would impose a period of two years and six months' imprisonment which I would order to be served by way of periodic detention. From the two year and six month period I would give the respondent credit for the almost four months for which he has now been subject to the conditions imposed by the sentence appealed from. I would therefore propose to impose a sentence of two years and two months periodic detention. 41 The Court has to satisfy itself about a number of matters before it makes an order for periodic detention. These are set out in s 66 of the Crimes (Sentencing Procedure) Act. I express myself satisfied that the offender is of or above the age of 18 years, and that he is a suitable person to serve the sentence by way of periodic detention and that it is appropriate in all the circumstances that the sentence be served by way of periodic detention. 42 The sentencing judge was invited to consider ordering periodic detention and called for a report from the Probation & Parole Service in the usual way. Such a report was put before the Court but it adjudged the respondent unsuitable for periodic detention because of the medical condition from which he was then suffering. 43 Notwithstanding that matter, I am satisfied because of the evidence which has been put before this Court that the things that stood in the way of a recommendation for periodic detention before the sentencing judge have now ceased to exist. The medical condition which made the respondent an unsuitable candidate is no longer likely to prevent his successful service of periodic detention. 44 The Court has been informed, in accordance with s 66(1)(d) that accommodation is available at Tomago Periodic Detention Centre and, in accordance with (e) that transport arrangements are available. In accordance with para (f) the Court notes that the offender has signed an undertaking to comply with his obligations under a periodic detention order. 45 I propose the following orders: 1. The appeal be allowed and the sentence appealed from be quashed; 2. In lieu the respondent be sentenced to a period of imprisonment of two years and two months commencing on 1 January 2005 and expiring on 27 February 2007; The sentence should be served by way of periodic detention and the respondent should be ordered to report to the Periodic Detention Centre at Tomago at 8.30am on Saturday 1 January 2005 and thereafter at 7pm on each Friday. The term that I impose would be a fixed term. In my opinion the fixed term is appropriate because the conditions of supervision that will apply will not require the imposition of a parole period. 46 WOOD CJ at CL: I agree. 47 SIMPSON J: I also agree. 48 WOOD CJ at CL: The order of the Court will, therefore, be as Barr J has proposed. Last Modified: 12/17/2004 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.