New South Wales Court of Criminal Appeal CITATION: R v Simon [2005] NSWCCA 123 HEARING DATE(S): 5/04/05 JUDGMENT DATE: 5 April 2005 JUDGMENT OF: Spigelman CJ at 36; Studdert J at 37; Howie J at 2 DECISION: (1) Grant leave to appeal.; (2) Allow the appeal and quash the sentence imposed for the first count on the indictment. In lieu thereof there should be a non-parole period of 8 years to date from 2 June 2003 and to expire on 1 June 2011 the date upon which the applicant is eligible to be released to parole. The balance of the term is to be 4 years to date from 2 June 2011 and to expire on 1 June 2015 CATCHWORDS: Application for leave to appeal against sentence. No error but manifestly excessive. No point of principle. Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 R v Tobar [2004] NSWCCA 391 R v Way (2004) 60 NSWLR 168 CASES CITED: R v P [2004] NSWCCA 218 R v Pellew [2004] NSWCCA 434 R v Fernando (1992) 76 A Crim R 58 Warren Mathew Simon - Appellant/Applicant PARTIES: The Queen - Respondent FILE NUMBER(S): CCA 2005/19 H. Cox - Applicant/Appellant COUNSEL: E. Wilkins - Respondent P. Brown - Many Rivers Aboriginal Legal Service SOLICITORS: S. Kavanagh (Solicitor for Public Prosecution) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/31/0057 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ - 12 - IN THE COURT OF CRIMINAL APPEAL 2005/19 SPIGELMAN CJ STUDDERT J HOWIE J 5 APRIL 2005 REGINA v WARREN MATHEW SIMON Judgment 1 SPIGELMAN CJ: I invite Howie J to deliver the first judgment. 2 HOWIE J: On 2 June 2003 the applicant was charged with attempted murder arising from an attack committed by himself and a co-offender upon a security officer at a bowling club that the two intended to rob. He was committed for trial to the District Court on that offence. On 8 April 2004, however, he was arraigned on an indictment containing two counts to which he pleaded guilty. 3 The first count charged an offence under s 33 of the Crimes Act alleging that the applicant inflicted grievous bodily harm on Shane Kallinis with intent to cause grievous bodily harm. That is an offence for which the maximum penalty prescribed is imprisonment for 25 years. The second count alleged an offence contrary to s 97(2) of the Crimes Act of being armed with a dangerous weapon attempting to rob Kathleen Briffa. That is an offence for which the maximum penalty prescribed is also imprisonment for 25 years. In addition the applicant asked the sentencing judge to take into account, when sentencing for the s 33 offence, ten matters on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act. 4 On 23 June 2004 Judge Coolahan sentenced the applicant on the s 33 offence to a term of imprisonment comprising a non-parole period of 10 years with a balance of the term being 5 years. His Honour imposed a concurrent sentence of a fixed term of imprisonment of 4 years in respect of the second offence. The applicant is eligible to be released to parole on 1 June 2013. The applicant seeks leave to appeal against these sentences on the following grounds: 1. His Honour erred in that he failed to take into account the finding of special circumstances in determining the non-parole period. 2. The sentence imposed by his Honour is manifestly excessive. 5 The facts can be stated briefly. The applicant and an alleged co-offender, who is presently awaiting sentence in the District Court, persuaded an acquaintance named Smith to drive them to the Teralba Bowling Club where they intended to break into the premises and steal money. They asked Smith to also go look-out for them and he agreed to do so. In the early hours of 16 March 2002 Smith drove the applicant and his co-offender to the vicinity of the club. When they alighted from the vehicle, the two put on overalls and headed toward the premises. The applicant was at this time carrying a backpack containing a metal bar and a rifle. 6 Mr Kallinis, an employee of a security company, was at that time assisting an employee of the club, Ms Briffa, to secure the premises. Mr Kallinis waited outside the club while Ms Briffa set the security system. He became aware of the reflection in the glass door of the club of a person approaching him from the rear. After closing the door and automatically locking it, he turned to find the co-offender wearing a balaclava and pointing the rifle at his face. Mr Kallinis grabbed the muzzle of the firearm and pushed it away so that it was pointing over his shoulder. He then saw the co-offender pull the trigger and heard the hammer snap. However, because the safety catch was engaged, the rifle did not discharge. 7 The applicant then struck Mr Kallinis to the back of the head with the metal pipe rendering him unconscious. The co-offender disengaged the safety device on the firearm and fired a single shot at Mr Killinis's groin. He and the applicant then proceeded to beat him about the head and body, before returning to Smith and the vehicle. When they arrived they were arguing about what had occurred at the club. Smith drove to the shore of Lake Macquarie where the two men disposed of the overalls and the firearm before returning to their respective homes. 8 Back at the club help had been summonsed for Mr Kallinis and after police arrived he was taken to the intensive care unit of John Hunter Hospital. X-rays disclosed that almost every bone in his face had suffered multiple fractures. Although he had swelling to the area of his groin, it was not known that he had been shot. Police investigations later revealed that the co-offender had told a number of persons about the incident, including the fact that he had shot the victim in the groin area. 9 On 29 March 2003 Mr Kallinis underwent reconstructive surgery to his head and face. On 2 April the bullet was removed from his buttocks area. 10 On 1 May 2003 Smith was arrested and made admissions as to his involvement in what he thought was to be a break and enter of the bowling club. He also informed police of statements made by the co-offender on returning to the vehicle as to the shooting of Mr Kallinis. The co-offender was arrested later that month and the applicant on 2 June 2003. The applicant denied involvement in the offence. A few days later the firearm was recovered and shortly thereafter the remains of the overalls. 11 The sentencing judge appropriately described the s 33 offence as follows: As can be seen, the facts disclose an horrific offence, particularly so far as count one is concerned. It involved gratuitous violence of a sickening degree. It is difficult to find words to adequately express the sheer gutless, wanton conduct involved in the commission of the offence and I will, therefore, not attempt to do so. The facts speak eloquently for themselves, as do the medical reports tendered as part of the material on sentence which deal with the injuries suffered by the victim and the treatment required of them. The medical reports tendered indicated that the injuries were initially considered to be life-threatening. However, fortunately for the victim, it appears he recovered and by October 2003 he was hopeful of returning to work as a security guard notwithstanding some residual discomfort. 12 The offences on the Form 1 and the attempted armed robbery offence somewhat paled in light of the seriousness of the s 33 offence, but they were themselves serious matters. The ten matters to be taken into account involved eight offences of break enter and steal or break enter with intent to steal committed between March and May 2003, one of which involved property to the value of $12,000. 13 The offences were aggravated by the fact that the applicant was on conditional liberty at the time of the offence as a result of being on parole from a control order imposed in the Children's Court for an offence of break enter and steal. 14 There was a substantial subjective case led on behalf of the applicant including a report from a psychologist, a Juvenile Justice report of October 2000, and evidence from an uncle. The applicant was aged 18 at the time of the offences and had a record of matters mainly for dishonesty and escape custody, commencing in 1997 and dealt with in the Children's Court. However, he had no record for offences of violence. 15 The applicant had an unfortunate upbringing marked by violence, drug abuse and deprivations. He was of the Aboriginal race and grew up in the Toronto area. His mother was aged fourteen when she gave birth to the applicant and she spent most of his life serving sentences in detention centres or prisons leaving the applicant's grandparents to care for him. The applicant told the psychologist that all his family were addicted to alcohol and he could not remember any of them working. By the age of 13 the applicant had ceased attending school and at the same age commenced using drugs. By age 14 he was using heroin and spent a significant part of his teens thereafter in juvenile detention as a result of committing crimes to support his drug habit. 16 The psychologist stated the following under the heading of "Conclusions" in his report: Warren is a young, indigenous Australian man of nineteen, of limited verbal and non-verbal intellect. He has described a history of extreme deprivation and neglect, growing up rejected by his parents in the broader family household that was fraught with alcoholism and violence. He left school before completing year 8. Socially he has known only drug using and offending peers, whose example he has followed. There was no application to work and no apparent lifestyle structure. Since the early teenage years he has spent by far the majority of his time in detention. Warren is now facing serious charges for a violent act which, as he points out, is far beyond anything in his record. He has expressed his regret and sorriness for his actions. The remorse that might be expected of him is potentially reduced by a combination of factors, including emotional immaturity resulting from his background of social neglect, low intellect and acute apprehensions about his current circumstances. Warren emphasised the relevance of family neglect, peer influence and drug use to his offending. He nevertheless showed a high degree of acceptance of penalty. I note he has traditionally viewed prison as part of his life as an inevitability, as a place where health is restored and perhaps therefore as a base. He is institutionalised and has little concept of how to manage in the community. It is only now that he is forced to consider his future and is thus beginning to express probably the first genuine resolutions to long-term reform. He reports prior and current feelings of depression and psychometric testing would support the notion that he has depressive symptoms. However, his presentation, his generally optimistic outlook and the active and healthy functioning he reports in custody indicate he is not suffering a depressive illness. Although his background and his intellectual limitations render him a difficult candidate for rehabilitation, such measures are warranted. He might be suitable for a range of custody based programs such as drug and alcohol groups, living skills and violence prevention". 17 The Juvenile Justice Report prepared for the Children's Court in October 2000 paints a similar picture. It indicates that on occasions the applicant had sought to address his drug usage but found it difficult because of living within a community "where a strong sub-culture exists surrounding the use of drugs". 18 The applicant's uncle gave evidence and acknowledged the truth and accuracy of the material set out in the psychological report. He had himself left home at the age of 14 years, a couple of years before the birth of the applicant, and had succeeded in living a law-abiding and useful life. He described the applicant as being a "good kid" until he started taking drugs as a result of being left unsupervised and getting in with the wrong people. He had offered to allow the applicant to reside with him but he preferred to remain with his grandmother in the Toronto area. 19 In the course of his lengthy and careful sentencing remarks Judge Coolahan quoted at length from the reports before him and the evidence given by the applicant's uncle. However, his Honour noted that the only mitigating factor relied upon by senior counsel, who appeared for the applicant, was his guilty pleas and remorse. His Honour stated that he was giving the applicant the benefit of a discount of 20 per cent on account of the pleas of guilty. 20 The first ground of appeal complains of the manner in which his Honour determined the non-parole period notwithstanding that he found there to be special circumstances in determining the ratio between the non-parole period and the balance of the term. The particular complaint made is that his Honour used the finding of special circumstances to extend the balance of the term to be served on parole rather than to reduce the non-parole period to be served. 21 Judge Coolahan was required to sentence the applicant in accordance with s 44 of the Crimes (Sentencing Procedure) Act which relevantly provided: 44 Court to set non-parole period (1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). 22 Before he came to impose the sentences his Honour stated (my underlining): There is the question of whether there ought to be special circumstances. This was not raised by counsel during submissions but, nonetheless, it is required to be considered by the Court when passing sentence. Notwithstanding the objective seriousness of the offences, particularly that contained in count one in the indictment, and the lack of evidence of any mitigating factors, it seems to me that the offender's age and circumstances, along, perhaps, with his limited intelligence and the fact that this will be his first time in an adult institution, would justify a finding of special circumstances. It is clear from all the material presented to the Court that he is in desperate need of supervised rehabilitation. Whether, of course, that will have any effect only time will tell, but, in my view, it still justifies a reduction in the otherwise applicable non-parole period . Having said all that, however, the reality is that this offence, that is to say the offence disclosed in count one in the indictment, is towards the upper end of the scale of seriousness for offences of this sort. In addition, when sentencing him in relation to that matter I am required to take into account another ten matters on a Form 1, eight of which, in themselves, are also serious. More than lip service has to be paid to those matters in the sentencing process. Having taken all those matters into consideration, it seems to me that the appropriate non-parole period in this case is one of ten years imprisonment for count one in the indictment. Having found special circumstances, I would fix a total sentence of fifteen years imprisonment. 23 The argument is that, notwithstanding the clear acknowledgment in the remarks quoted above that a finding of special circumstances "justifies a reduction in the otherwise applicable non-parole period", his Honour must have used the finding of special circumstances to increase the balance of the term after having determined on a non-parole period of ten years. 24 Ms Cox, who appears for the applicant, relies in particular on the last two paragraphs of that part of the remarks I have quoted as manifesting, what is said to be, the erroneous approach adopted by the Judge. She criticises his Honour for not mentioning the total sentence being imposed until the very end of that passage. The argument is that, having determined that a period of 10 years was appropriate for a non-parole period, his Honour should have given reasons for not imposing a total sentence that was only a third longer than the non-parole period being a total term of 13 and a half years. Ms Cox relies upon two decisions of this Court as support for the argument and in particular the judgment of Simpson J in R v Tobar [2004] NSWCCA 391 at [35] and following. 25 It is clear that in fixing a sentence under s 44 of the Crimes (Sentencing Procedure) Act in the form that applied in the present case, the focus is to be upon the determination of the whole of the term of the sentence to be imposed even though the sentencing judge is required to pronounce the sentence by specifying the non-parole period first and then stating the balance of the term. So much is plain from the decision in R v Way (2004) 60 NSWLR 168 where the Court held: 111 The view that was taken in R v Moffitt (1990) 20 NSWLR 114 in relation to the former s 5 of the Sentencing Act did not require the sentencing judge to first determine a minimum term, which was thereafter immutable, notwithstanding a subsequent finding of special circumstances. In substance, the section specifies the sequence in which the sentence was to be set, focussing upon the period which was considered appropriate to be served by way of a minimum period of actual imprisonment, followed by the period for a potential supervised release on parole. 112 While there are separate considerations involved for s 44(2) of the Act, they need not be regarded as involving a two-step or sequential process since, as Spigelman CJ pointed out in R v Hampton (1998) 44 NSWLR 729, the relevant steps can be taken simultaneously. 113 To this end the sentencing principles approved in R v Moffitt at 117-118, 121-122 and 134-135 and also in R v GDR (1994) 35 NSWLR 376 at 381-2 will provide guidance. 26 The decision in R v Tobar followed a decision of this Court in R v P [2004] NSWCCA 218. The applicant in R v P was a co-offender of the two applicants in R v Tobar. The same District Court Judge sentenced all of the applicants. In his reasons for sentencing CP, the applicant in R v P, the Judge indicated that, in sentencing for one of the two offences before the Court, he started with the standard non-parole period that applied to the offence and then deducted from that figure a specified amount to reflect the fact that the applicant was a juvenile. Having by this mathematical approach determined what the non-parole period should be, the sentencing judge then fixed the balance of the term by finding that there were special circumstances. 27 In those circumstances and with the Judge's reasoning so exposed, this Court had little difficulty in concluding that his Honour had erred in the way that it is argued that Judge Coolahan erred in the present case. However, in respect of the other offence for which CP was sentenced and where the Judge had not exposed his reasoning in determining the non-parole period and the balance of the term, the Court was not prepared to find that the Judge had made the same error. 28 In R v Tobar the Court concluded that the sentencing judge had determined the non-parole period before deciding upon the balance of the term in respect of each of the applicants then before the Court in the same way as he had done when sentencing CP. The Crown conceded that this error had taken place. The Judge wrongly determined the length of the non-parole period before taking into account the existence of special circumstances. 29 The facts in both R v P and R v Tobar were very different from the present case. It is clear that Judge Coolahan was conscious that the finding of special circumstances affected the length of the non-parole period and stated as much. But further, he made the finding of special circumstances before determining the length of the non-parole period. In such a case I do not understand why it should be inferred that the Judge only came to consider the effect of the finding of special circumstances when determining the length of the balance of the term and after fixing the length of the non-parole period. 30 True it is that during the course of his sentencing remarks the Judge noted the standard non-parole period prescribed for the offence and indicated that he believed that the non-parole period to be specified in the present case should be greater because of the seriousness of the particular offence. But his Honour was doing no more than later decisions, such as R v Way and R v Pellew [2004] NSWCCA 434, stressed, that is that significance has to be granted to the standard non-parole period even in a case, such as the present, where it does not strictly apply because the offender pleaded guilty. In my opinion the first ground of the appeal has no merit. 31 However, I am, of the view that the sentence is manifestly excessive. On the one hand the s 33 offence was a very serious one because of the severity of the gratuitous violence inflicted upon the hapless victim and notwithstanding that it appears that the injuries were not permanent. It was an offence to which a number of aggravating factors set out in s 21A(2) of the Crimes (Sentencing Procedure) Act and that were identified by the sentencing Judge applied, not the least being that the applicant was on parole at the time. Further, there were the matters on the Form 1 that needed to be reflected to some degree in the sentence imposed. 32 On the other hand the applicant was a young man to whom the considerations set out by Wood CJ at CL in R v Fernando (1992) 76 A Crim R 58 were particularly apposite. Further, he had pleaded guilty and the Judge determined that a discount of 20 per cent was appropriate. This must mean that his Honour started with a sentence somewhere in the vicinity of 18 years 9 months before applying the discount. Yet the applicant had no history of violence so that the offence was one out of character. It cannot be said that he fitted into the category of offender where it was appropriate to remove him from the community for a very lengthy period simply for the protection of the community, such as might have been the case had he been older and with a record of violence. With respect it seems to me that such a sentence was unjustified by the offence, notwithstanding its very great seriousness. 33 I appreciate that youth plays less significance in matters of grave violence such as this and where the offence is one that lacks the impetuosity or recklessness of youth: R v Pham (1991) 55 A Crim R 123. But even allowing for the necessity for the sentence to reflect general deterrence and retribution, the sentence imposed seems to me with respect to be unduly harsh. I am confirmed in that view by the schedule of s 33 cases tendered to the Court by Ms Cox. Only one sentence is more than that imposed upon the applicant and that was one totalling 18 years and 6 months passed following conviction after trial on a person who was in effect a hit man and who entered a dwelling house to bash the female victim resulting in her receiving permanent scarring. The statistics show that for sentences imposed after 1 February 2003, the date upon which the standard non-parole period came into operation, there has been only one sentence of more than 12 years and I presume, from the information available, that this is the sentence imposed upon the applicant. 34 In my opinion the appropriate starting sentence before the discount was applied should have been 15 years. I acknowledge that this is a sentence at the very top of the range but it is justified because of the seriousness of the offence and the inclusion of the Form 1 matters. Applying the discount of 20 per cent, the total sentence should be one of 12 years. Giving effect to the Judge's finding of special circumstances, the non-parole period should be 8 years and the balance of the term 4 years. 35 I propose that the application for leave be granted, the appeal allowed and the sentence imposed for the first count on the indictment be quashed. There should be a non-parole period of 8 years to date from 2 June 2003 and to expire on 1 June 2011 the date upon which the applicant is eligible to be released to parole. The balance of the term is to be 4 years to date from 2 June 2011 and to expire on 1 June 2015. 36 SPIGELMAN CJ: I agree with Howie J. 37 STUDDERT J: I agree with Howie J. 38 SPIGELMAN CJ: The orders of the court are those proposed by Howie J. 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.