New South Wales Court of Criminal Appeal CITATION: Hiron v R [2007] NSWCCA 336 HEARING DATE(S): 13 November 2007 JUDGMENT DATE: 7 December 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 3 DECISION: (i) Leave to appeal be granted. (ii) Quash the sentence imposed by Viney ADCJ for count 3a being an offence contrary to s 59(1) Crimes Act 1900. (iii) Sentence the applicant on count 3a to imprisonment with a non-parole period of 1 year and 9 months commencing on 22 January 2008 and expiring on 21 October 2009 and a balance of term of 2 years commencing on 22 October 2009 and expiring on 21 October 2011. (iv) Quash the sentence imposed by Viney ADCJ for count 4a being an offence contrary to s 59(1) Crimes Act 1900. (v) Sentence the applicant on count 4a to imprisonment with a non-parole period of 1 year and 9 months commencing on 22 October 2008 and expiring on 21 July 2010 and a balance of term of 2 years commencing on 22 July 2010 and expiring on 21 July 2012. The total effective sentence of imprisonment comprised of a non-parole period of four years commencing on 22 July 2006 and expiring on 21 July 2010 with a balance of term of two years expiring on 21 July 2012 remains unaltered. The earliest date on which the applicant will be eligible for release to parole remains 21 July 2010. CATCHWORDS: Criminal law - sentencing - multiple offences - application of utilitarian discount - principle of totality - sentence not manifestly excessive. LEGISLATION CITED: Crimes Act 1900 s 58, s 59(1), Criminal Appeal Act 1912 s 6(3) Callaghan v The Queen (2006) 160 A Crim R 145 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Dunn (2004) 144 A Crim R 180 R v Edigarov (2001) 125 A Crim R 55 CASES CITED: R v Hamid [2006] NSWCCA 302 R v Knight (2005) 155 A Crim R 252 R v McNaughton [2006] NSWCCA 242 R v M.A.K., R v M.S.K. [2006] NSWCCA 381 Regina v Fernando [2002] NSWCCA 28 Regina v Hajjo (Court of Criminal Appeal, 31 August 1992, unreported) PARTIES: Timothy Paul Hiron Crown FILE NUMBER(S): CCA 2006/5269 COUNSEL: C Loukas ( Applicant) P Miller (Respondent) SOLICITORS: S Etherington Legal Aid Commission (Applicant) S Kavanagh Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/1003 LOWER COURT JUDICIAL OFFICER: Viney ADCJ LOWER COURT DATE OF DECISION: 8 December 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Timothy Hiron CRIMINAL APPEAL 2006/5269 McCLELLAN CJ at CL HALL J PRICE J 7 December 2007 HIRON v R Judgment 1 McCLELLAN CJ at CL: I agree with Price J. 2 HALL J: I agree with Price J. 3 PRICE J: This is an application for leave to appeal against sentence by Timothy Hiron who was sentenced by Viney ADCJ on 8 December 2006 to a total effective sentence of imprisonment comprised of a non-parole period of four years commencing on 22 July 2006 and expiring on 21 July 2010 with a balance of term of two years expiring on 21 July 2012. 4 The applicant had pleaded guilty on 16 October 2006 upon arraignment in the District Court to seven offences, namely: Count 1a : On the 25th August 2005 at Kings Langley in the State of New South Wales did assault Karin Anne Hiron thereby occasioning to her actual bodily harm. Count 2 : On the 1st October 2005 at Kings Langley in the State of New South Wales did assault Karin Anne Hiron thereby occasioning to her actual bodily harm. Count 3a : On the 1st October 2005 at Kings Langely in the State of New South Wales did assault Karin Anne Hiron thereby occasioning to her actual bodily harm. Count 4a : On the 2nd October 2005 at Kings Langley in the State of New South Wales did assault Karin Anne Hiron thereby occasioning to her actual bodily harm. Count 5 : On the 2nd October 2005 at Kings Langley in the State of New South Wales did falsely imprison Karin Hiron. Count 6 : On the 3rd October 2005 at Kings Langley in the State of New South Wales, did resist Timothy Clifford, a constable of police, while in the execution of his duty. Count 7 : On the 3rd October 2005 at Kings Langley in the State of New South Wales, did resist Garry Adams, a constable of police, while in the execution of his duty. 5 The pleas of guilty were accepted by the Crown in full satisfaction of the indictment upon which the applicant had been arraigned. 6 Counts 1a to 4a are counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900. Offences contrary to s 59(1) are punishable by five years imprisonment. 7 Count 5 is a common law misdemeanour with a penalty at large. 8 Counts 6 and 7 are counts of resisting a constable of police while in the execution of his duty contrary to s 58 of the Crimes Act. Offences contrary to s 58 are punishable by five years imprisonment. 9 The Judge imposed the following sentences: Count 1a : a fixed term of nine months imprisonment to commence on 22 July 2006 and expire on 21 April 2007. Count 2: a fixed term of 9 months imprisonment to commence 22 April 2007 and expire 21 January 2008. Counts 3a and 4a : on each count to imprisonment with a non-parole period of two years and six months, concurrent, to commence on 22 January 2008 and expire on 21 July 2010, with a parole period of two years to commence on 22 July 2010 and expire on 21 July 2012. Counts 5, 6 and 7 : on each count to a fixed period of six months imprisonment to be concurrent with the non-parole periods on counts 3a and 4a to commence on 22 January 2008 and expiring on 21 July 2008. The offences 10 An agreed statement of facts was placed before the Judge and may be conveniently summarised. 11 The victim of the offences of assault occasioning actual bodily harm and false imprisonment was Karin Hiron with whom the applicant had been in a de facto relationship for three years. At the time of the offences she was 23 weeks pregnant. Following the applicant's release from prison in February 2005, Ms Hiron under questioning had informed him that during his imprisonment she had been involved in a number of relationships, including one with a serving prison officer. This had become a source of tension and dispute between them as did the subsequent pregnancy. Count 1a 12 On 25 August 2005, Ms Hiron inadvertently sent an SMS text message to the applicant saying that she was leaving him. This resulted in the applicant demanding that she tell him about the details of a previous relationship, which she declined. The applicant then flicked her right eyeball with his finger and punched her to the left side of the head. Ms Hiron sustained redness to the white of her eye and significant pain to the head. Later that day, the applicant drove with Ms Hiron on the M2 Tollway at Seven Hills where he stopped the vehicle by the side of the road. He told the applicant to get out of the car which she did. Having taken a tyre lever from the car, the applicant took Ms Hiron down an embankment where he told her to get down on her hands and knees and said, "Right start talking cunt". He nudged her on the back of the head with the tyre lever which resulted in Ms Hiron urinating on herself. The applicant told her to get up and they returned to the car. The applicant subsequently drove to Parramatta and parked on a vacant block. The applicant held Ms Hiron's right wrist and twisted it to expose her elbow. He then said "start talking cunt" and held the tyre lever in one hand whilst holding Ms Hiron's other arm behind her back. He held the tyre lever above Ms Hiron and repeated the demand to start talking. When a stranger walked nearby, the applicant stopped his threats and drove away. Count 2 13 On 1 October 2005, at around 6pm, the applicant began questioning Ms Hiron about two of the men with whom she had had a relationship whilst he was in prison. He kicked Ms Hiron in the chest and punched her to the face, causing redness and soreness. He then grabbed her by the throat squeezing it for a few seconds, making it difficult for her to breath and said "You deserve to die, die, die". This occurred in the bedroom of their home and ended when their six-year-old daughter entered the room. The applicant contacted his mother who came to the house a short time later and took the child to her home. Count 3a 14 Over the next few hours Ms Hiron was questioned by the applicant about her relationship with the two men. During this time he hit her with a series of "boxing jabs" around the hairline. This caused redness and pain. The applicant continued to threaten her. Count 4a 15 At about 5pm on the next day, the applicant recommenced questioning Ms Hiron about the two men. He told her to lie down on the lounge. The applicant then kicked her to the upper legs/buttock area and on a number of occasions punched her to the head. Ms Hiron was in extreme pain. Count 5 16 The applicant had possession of Ms Hiron's mobile phone and had connected the internet to the house phone preventing Ms Hiron from using either phone. She was forced to sit on the lounge room for a number of hours while the applicant questioned her. He subsequently took Ms Hiron in the car with him for some time before returning home. Upon returning home the applicant began checking the home computer to ascertain if she had been contacting other men. This continued for some hours. At about 11am the following morning (3 October) when the applicant fell asleep, Ms Hiron ran to a neighbour's house and asked them to call police. Police officers arrived a short time later and observed that Ms Hiron had extensive bruising to both eyes and face. Counts 6 and 7 17 The police officers entered the house and placed the applicant under arrest. They attempted to handcuff him but he resisted by throwing his arms and body around. The officers took approximately two to three minutes to subdue him. Subjective circumstances 18 Evidence of the applicant's subjective circumstances was put before the Judge by way of a pre-sentence report. The applicant was born on 7 March 1967 and at the time of offending was aged 38 years. He was adopted at the age of two weeks and is the youngest of three siblings. He had a normal upbringing and there were no alcohol or other issues in the family life. He was educated to year 8 leaving school at the age of 15. 19 He commenced cannabis use at the age of 12 graduating from the age of 15 to a serious heroin addiction and cocaine use. He has in the past participated in a methadone program and whilst in custody completed a drugs counselling course and accessed counselling. 20 The applicant's relationship with Ms Hiron commenced approximately eight years before the present offences. They have two children. He told the author of the probation and parole report that he was very angry that his partner had relationships with other men whilst he was serving his last sentence and he did not want the assaults to happen but they did. He acknowledged that he should not have behaved in this way. The author of the report states that the applicant impresses as having the capacity to achieve at a much higher level than he has in the past and has demonstrated motivation at times to avoid conflict with the law. The need to address anger and relationship issues to appropriately resolve conflict situations is recognised, the author opines, by the applicant. 21 The applicant has a record of previous convictions which the Judge summarised in the following way (ROS p2): "He is 36 years old and has a lengthy record for offences, mostly of dishonesty and traffic matters but including assault police and resisting arrest, and in 1994 assault in a domestic violence situation and in 2001 common assault. He has served a number of gaol sentences." 22 At the time of the present offending, the applicant was on parole for the offence of robbery in circumstances of aggravation, that being the infliction of corporal violence under s 95 of the Crimes Act. He had been sentenced on 13 December 2002 to a term of six years imprisonment to date from 13 June 2001 and to expire on 12 June 2007. A non-parole period of three years and eight months was fixed to date from 13 June 2001 and to expire on 12 February 2005. The applicant had been released to parole but as a result of being charged with the present offences, his parole was revoked on 24 August 2006. His sentence for the balance of parole was to date from 3 October 2005 and expire on 21 July 2007. Dealing with the Appeal 23 Ground 1 of the appeal is that his Honour erred in that he did not have proper regard to the maximum penalty for assault occasioning actual bodily harm. The applicant's complaint is confined to counts 3a and 4a for which he was sentenced on each count to a total term of imprisonment of four years and six months. As the Judge stated that he allowed a 20 per cent discount for the utilitarian value of the pleas, the length of the sentences imposed bespeak error. The maximum penalty for an offence of assault occasioning actual bodily harm is five years imprisonment and the undiscounted starting point of each sentence if a twenty per cent discount was allowed must have been five years seven months (rounded down). The Judge in his sentencing remarks identified the statutory maximums for each of the offences and it may be that his Honour applied the utilitarian discount to the total sentence imposed for all seven counts. His Honour was, however, required to fix an appropriate sentence for each offence before considering whether the total sentence properly reflected the totality of the criminality. The Crown concedes that whatever way the Judge approached the application of the discount the result in respect of these two counts is an error. 24 Ground 2 of the appeal is that his Honour erred in not having proper regard to the principle outlined in Pearce v The Queen (1998) 194 CLR 610. Ground 3 is that the overall sentence imposed as accumulated is manifestly excessive. As these grounds are related, it is convenient to deal with them together. 25 The applicant submits that the principle of totality was not sufficiently reflected in the aggregate sentence which given the objective circumstances and the subjective case for the applicant is manifestly excessive. The principle of totality applies, the applicant points out, not only where a judge is sentencing for two or more offences but also when he is serving the balance of a sentence when his parole has been revoked. 26 His Honour was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality. He was required to impose an overall aggregate sentence that fairly and justly reflects the totality of the criminality involved: see Pearce, R v Knight (2005) 155 A Crim R 252. The principle of totality also applies where a sentence is being served: see Mill v The Queen (1988) 166 CLR 59, Regina v Hajjo (Court of Criminal Appeal, 31 August 1992, unreported). At the time of sentence the applicant was serving the balance of a sentence following the revocation of his parole. The Judge was required to apply the principle of totality to the seven offences for which the applicant was to be sentenced and to the existing sentence being served. 27 His Honour's approach to the sentencing task indicates that he was mindful of the principle of totality. He expressly referred to the Crown prosecutor's submission that there had to be some degree of accumulation of sentence in line with Pearce and went on to remark: "and of course bearing in mind the principal (sic) of totality". (ROS at 7). 28 The Judge recognised that the applicant was serving the balance of parole and backdated the sentence for count 1a so that it commenced on 22 July 2006 although the sentence being served did not expire until 21 July 2007. He did so to avoid what he regarded as the consequence of double punishment as the applicant's parole had been revoked because of the offences for which he was to be sentenced. This was a matter within his Honour's discretion: Callaghan v The Queen (2006) 160 A Crim R 145 at [21] which was exercised favourably to the applicant. The Judge was not obliged to backdate the sentence to 3 October 2005. 29 His Honour made some sentences cumulative and others concurrent to arrive at the total sentence. Count 1a was made partially concurrent on the existing sentence, count 2 was cumulative on the preceding count, counts 3a and 4a were cumulative on count 2 but to be served concurrently with each other and counts 5, 6 and 7 were concurrent with counts 3a and 4a. The course adopted by the Judge was open to him and would have been consistent with the principles in Pearce if he had first fixed appropriate sentences for counts 3a and 4a. Indeed the concurrency of these sentences was generous to the applicant as counts 3a and 4a represented separate episodes of violence. 30 Applying to the total effective head sentence of six years a discount of 20 per cent for the plea, the notional starting point of the sentence is seven years and six months. The applicant submits that this starting point is beyond the appropriate range. 31 Judicial Commission sentencing statistics and cases imposing sentences for the offence of assault occasioning actual bodily harm have been included in the written submissions. I have not found the material to be of much assistance as the present case involves repeated acts of violence in a domestic setting. 32 Offences for violent attacks in domestic settings, this Court has emphasised, must be treated with real seriousness. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community: see for example R v Edigarov (2001) 125 A Crim R 551, R v Dunn (2004) 144 A Crim R 180, R v Hamid [2006] NSWCCA 302. As was said by Wood CJ at CL (Studdert and Bell JJ agreeing) in Edigarov at 558 [41]: "…such conduct is brutal, cowardly and inexcusable, and the courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence." 33 It is evident that the Judge was mindful of the relevant sentencing principles which were summarised by Johnson J (with whom Hunt AJA and Latham J agreed) in Hamid and recognised that the facts in Hamid involved more extensive episodes of violence and three separate victims. Hamid, however, was a successful Crown appeal and Johnson J when re-sentencing [at 149] acknowledged the restraint of the double jeopardy principle and imposed sentences "at the lower end of the available range". 34 In the present case, each of the four offences of assault occasioning actual bodily harm involved separate episodes of violence towards Ms Hiron who was then pregnant. The seriousness of the offence of false imprisonment is not to be overlooked as the circumstances of Ms Hiron's detention were plainly distressful. After each of the individual offences of assault, the appellant was afforded the opportunity to reflect upon his actions and to appreciate that the violent abuse of his partner was wrong. 35 The applicant's offending was compendiously summarised by the Judge as follows: "… on the dates in question, the subject of the charges, he inflicted upon the victim brutal and savage assaults. Photographs of the victim following the final assault indicate to some extent the ferocity of his abuse. It is also clear to me that the prisoner is a man of large and strong physique. The Crown tendered a Victim impact Statement from the victim and a report from Mariela Occelli, clinical psychologist, which indicates that the victim has continued to suffer on going trauma as a result of these offences. It is clear that the injury and emotional harm caused to the victim is substantial. The offences, or some of them, involved the actual use of a weapon, namely a tyre lever. The offences involved gratuitous cruelty, punching and kicking his domestic partner 23 weeks pregnant, and threatening her. The offences were committed while the prisoner was on conditional liberty, that is on parole. He abused a position of trust as a partner of the victim and father of their child and expected child. The victim was vulnerable in the sense that she was a pregnant female of much smaller build totally under the domination of the prisoner" (ROS at 3). 36 At the time of the commission of the offences the applicant was on parole for the offence of robbery in circumstances of aggravation. The commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: see for example Regina v Fernando [2002] NSWCCA 28 at [40-42]. 37 The circumstances of aggravation of the offence of robbery involved serious acts of violence whereby the victim, a 23-year-old female, was physically assaulted and threatened with injury by the use of a knife, although a knife was not produced. As the Judge remarked in the passage I have quoted at paragraph 21 the prisoner has a lengthy criminal record. Having regard to the applicant's criminal history, the Judge was entitled to give more weight to considerations of personal deterrence and protection of the community than otherwise would be the case: see R v McNaughton [2006] NSWCCA 242, R v M.A.K., R v M.S.K. [2006] NSWCCA 381. 38 It is evident that his Honour gave sympathetic consideration to the subjective case advanced on behalf of the applicant. 39 The repeated episodes of violence committed by the applicant whilst on parole required a deterrent sentence. I am not persuaded that the notional starting point of the aggregate sentence is manifestly excessive. The aggregate sentence to my mind fairly and justly reflects the totality of the criminality of his conduct. 40 The second and third grounds of appeal fail. 41 Although error has been identified, I am not of the opinion that some other sentence is warranted in law and should have been passed: s 6(3) of the Criminal Appeal Act 1912. No lesser sentence is warranted and this Court should not intervene other than to impose appropriate sentences for counts 3a and 4a. 42 Whilst it is necessary to re-sentence for counts 3a and 4a the orders that I propose will not impact upon the overall sentence imposed by the Judge as these counts will be partially accumulated. 43 I propose the following orders: (i) Leave to appeal be granted. (ii) Quash the sentence imposed by Viney ADCJ for count 3a being an offence contrary to s 59(1) Crimes Act 1900. (iii) Sentence the applicant on count 3a to imprisonment with a non-parole period of 1 year and 9 months commencing on 22 January 2008 and expiring on 21 October 2009 and a balance of term of 2 years commencing on 22 October 2009 and expiring on 21 October 2011. (iv) Quash the sentence imposed by Viney ADCJ for count 4a being an offence contrary to s 59(1) Crimes Act 1900. (v) Sentence the applicant on count 4a to imprisonment with a non-parole period of 1 year and 9 months commencing on 22 October 2008 and expiring on 21 July 2010 and a balance of term of 2 years commencing on 22 July 2010 and expiring on 21 July 2012. The total effective sentence of imprisonment comprised of a non-parole period of four years commencing on 22 July 2006 and expiring on 21 July 2010 with a balance of term of two years expiring on 21 July 2012 remains unaltered. The earliest date on which the applicant will be eligible for release to parole remains 21 July 2010. ********* 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. 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