New South Wales Court of Criminal Appeal CITATION: GHAZI v R [2006] NSWCCA 320 HEARING DATE(S): 9/8/2006 JUDGMENT DATE: 10 October 2006 JUDGMENT OF: Tobias JA at 1; Howie J at 2; Rothman J at 8 DECISION: a Leave to appeal be granted; b The sentence imposed on the applicant by his Honour Judge Delaney on 7 June 2005 be quashed; c For the offence of maliciously wound with intent to do grievous bodily harm contrary to s.33 of the Crimes Act 1900 (NSW), committed on 15 December 2003, the applicant be sentenced to imprisonment for a non-parole period of 5 years to commence on 16 December 2003 and expire on 15 December 2008, with a balance of sentence of 4 years and 7 months to commence on 16 December 2008 and expire on 15 July 2013. The earliest date the applicant would be eligible for release is 15 December 2008. CATCHWORDS: CRIMINAL LAW - CRIMINAL APPEALS - sentence appeal - wounding with intent to murder - malicious wounding - malicious infliction of grievous bodily harm - proper method or use of standard non-parole period - use of special circumstances - principles of sentencing misapplied - manifest error - misuse of prior convictions Crimes Act 1900 (NSW) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) AJP v The Queen (2004) 150 A Crim R 575 CASES CITED: R v Moffitt (1990) 20 NSWLR 114 R v Veen (No. 2) (1998) 164 CLR 465 R v Way (2004) 60 NSWLR 168 PARTIES: Mohammed Ghazi Regina FILE NUMBER(S): CCA 2006/1273 COUNSEL: J Manuell (A) D M L Woodburne (R) SOLICITORS: J Pearson - LAC (A) S Kavanagh - Public Prosecutions (R) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/21/0186 LOWER COURT JUDICIAL OFFICER: Delaney DCJ LOWER COURT DATE OF DECISION: 7/6/2005 LOWER COURT MEDIUM NEUTRAL CITATION: R v Ghazi (unreported, DCNSW, Delaney DCJ, 7 June 2005) - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/1273 TOBIAS JA HOWIE J ROTHMAN J 10 October 2006 MOHAMMED GHAZI v REGINA Judgment 1 TOBIAS JA: I agree with Rothman J and with the additional comments of Howie J. 2 HOWIE J: I have read in draft the judgment of Rothman J and agree with the orders proposed by his Honour generally for the reasons given by him. This was a bad case of wounding with intent to inflict grievous bodily harm and I would not set aside the finding of Delaney DCJ that it fell within the upper midrange of seriousness of the type of offending that can be covered by the applicable section. I am not persuaded that a sentence of 10 years and six months of itself was manifestly excessive whatever might be shown by the statistical information. The statistics tend to suggest that insufficient regard is being given to the seriousness of the offence and the statutory maximum penalty. 3 However, there appears to me to be a clear error in his Honour applying the principles laid down in Veen v The Queen (No 2) (1998) 164 CLR 465 as to the manner in which previous convictions are to be taken into account. The applicant relevantly had one offence for common assault and one offence for being in possession of a knife in a public place, each offence occurring in 2002. While the latter offence might be of concern having regard to the applicant being armed with a knife at the time of the present offence, these convictions could not be taken either singly or together to indicate that the applicant "manifested in his commission of the instant offence a continuing attitude of disobedience to the law". Nor could they legitimately signify that personal deterrence was an especially important factor or that the protection of the public from the applicant was of prime concern. They might suggest that the present offence was not an aberration in so far as the applicant had a knife with him in public and had resorted to violence on a previous occasion, but in my opinion they could do no more. The offence itself warranted condign punishment but not because of the existence of these previous convictions. 4 It was in my opinion erroneous for his Honour to place the weight he did on the earlier convictions and the reference to the principles in Veen (No2) were uncalled for in circumstances of this case. His Honour in effect used the convictions as a matter of aggravation in determining the sentence, notwithstanding that he said he was not doing so. The only way that previous convictions can be used as an aggravating factor is by applying the principles in Veen (No 2), which is precisely what his Honour did: see R v McNaughton [2006] NSWCCA 242. 5 I am also troubled by a sentence which raises doubts as to whether the Judge could properly have taken into account the discount for the plea of guilty, which was in any case overly-generous, when the starting figure before the application of the discount is such a curious one, as Rothman J has shown. 6 In any event, there being a clear error revealed in the sentencing remarks, I am not persuaded that no lesser sentence is warranted. The sentence proposed by Rothman J is a lenient one in my view, having regard to the nature and number of the wounds and the circumstances in which they were inflicted upon the victim, but I am prepared to accept that it is an appropriate response by this Court to the erroneous exercise of the sentencing judge's discretion especially having regard to the fresh material placed before the Court as to the effect upon the applicant of a serious attack upon him while in custody. 7 The orders of the Court should be those proposed by Rothman J. 8 ROTHMAN J: The applicant, Mohammed Ghazi, seeks leave to appeal against the sentence imposed upon him by Delaney DCJ on 7 June 2005 and, to the extent leave is granted, seeks a lesser sentence. 9 The applicant was originally charged with wounding with intent to murder contrary to s.27 of the Crimes Act 1900 (NSW); in the alternative maliciously wound with intent to do grievous bodily harm contrary to s.33 of the Crimes Act 1900 (NSW); and further in the alternative, malicious infliction of grievous bodily harm contrary to s.35(1)(b) of the Crimes Act 1900 (NSW). The applicant pleaded guilty to the alternative charge of malicious wounding with intent to do grievous bodily harm. This plea was accepted in full satisfaction of the indictment. The charge carries a maximum penalty of imprisonment for 25 years and a standard non-parole period of 7 years' imprisonment. His Honour sentenced the applicant to imprisonment for a non-parole period of 6 years to commence on 16 December 2003 and expire on 15 December 2009, with a balance of term of 4 years and 6 months, to commence on 16 December 2009 and expire on 15 May 2014 [sic]. It seems his Honour intended that the remainder of term expire on 15 June 2014. 10 The applicant raises two grounds of appeal: a His Honour erred in his application of s.44 of the Crimes (Sentencing Procedure) Act 1999; and b The sentence is manifestly excessive. 11 Before dealing with the grounds of appeal I will summarise the facts giving rise to the offence, which facts were agreed before the sentencing judge. The following reflects the terms of those agreed facts and is largely taken from them. Summary of Facts 12 The offence occurred on 15 December 2003. About 7.45 pm, the victim, Mr Sadek, was at the gym in Bankstown. He was there with two others. The applicant and his brother were also at the gym with another person who is unidentified. They too were working out. There were a number of other people, as one would expect, using the facilities. 13 The applicant began a "staring contest" with one of the friends of the victim. The applicant approached this person and said to him: "What the fuck is wrong with you bro!" 14 The victim intervened and the applicant said to him: "Fuck off you dickhead!" 15 Other patrons intervened and pushed the parties apart and followed the applicant and his brother towards the exit stairs. 16 As the applicant departed he was swearing and aggressively yelling words threatening the physical safety of the victim. Before reaching the exit stairs, the applicant turned and went back towards the victim. A further confrontation ensued between the applicant, the victim and his friend. Sometime during this confrontation the applicant produced and threatened the victim with a knife, and the victim threw a five kilogram weight at the applicant, hitting him around the rib cage area. 17 After the weight was thrown by the victim, the applicant's brother, in reply, began punching the victim. The applicant's brother and the victim traded punches and wrestled each other over towards some exercise mirrors on one of the interior walls of the gym, knocking over a stand of large exercise balls as they went. 18 The applicant ran over to join the fight at the mirrors, stabbing the victim a number of times to the stomach, back and arms. The applicant's brother continued to punch the victim to the body at the same time. Bystanders broke up the fight, and the applicant and his brother ran from the gym to their father's car and drove off. 19 The victim was transported to the hospital by one of his friends in a critical condition. He had received 7 stab wounds: 2 to the back, 2 to the right side of his stomach, 1 in the right side of his ribs, 1 in his right forearm and 1 in his left forearm. One of these stab wounds punctured his liver, resulting in a large loss of blood. He remained in hospital for 10 days and required two separate operations to treat his left forearm and liver. Upon discharge from hospital the victim was assessed to have good prognosis of recovery. 20 Police executed a search warrant on the applicant's family house and seized some clothing. 21 The applicant attended the Bankstown Police Station on 16 December 2003. He was interviewed and admitted that he and his brother were involved in a fight at the gym. He claimed he did not know how the victim received his injuries. He stated that he had only used his fists and threw punches after the victim had thrown a weight at him. 22 On 12 May 2004, the applicant and his brother were charged and committed to the District Court on the three original charges set out in this judgment. Negotiations occurred between the Crown and the applicant's solicitor and, by letter dated 19 May 2004, the applicant's solicitor wrote to the DPP advising of the applicant's willingness to plead to the charge for which he was ultimately sentenced. On 22 November 2004, the applicant pleaded guilty to that charge and the plea was accepted by the Crown prosecutor in full satisfaction of the indictment. While the plea of guilty was not at the earliest possible time, it was a plea of guilty which the sentencing judge held had significant utilitarian value and which the sentencing judge reflected by a reduction of sentence of 20 percent. No party disputes that assessment. Remarks on Sentence 23 The applicant had previous summary convictions: drive while disqualified, which, it seems, is unrelated to other substantive criminal activity; custody of a knife in a public place, for which the applicant received a fine; and common assault, for which the applicant was sentenced to 8 months' imprisonment wholly suspended on the entering of a s.12 bond. There were no prior offences involving significant violence or offences of the kind for which he is before the Court. Nevertheless, the sentencing judge described his prior offences as including an act of violence which necessarily was a reference to the common assault. A common assault, by definition, does not occasion actual bodily harm. His Honour cited the well known passage in R v Veen (No. 2) (1998) 164 CLR 465, and in particular a passage at 477, which refers to the use of antecedent criminal history to show whether the offender "has manifested in his commission of this instant offence a continuing attitude of disobedience of the law". As the High Court said, "It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." After citing that passage his Honour said: "The previous convictions for violence [sic: there was only one] and having in possession a knife relevant to the sentencing process applying as those principles [sic]." I take this to mean that his Honour considered that the previous conviction for common assault and possession of a knife in a public place were matters which, in accordance with the principles adumbrated in Veen (No.2) , supra , manifested in this offender a continuing attitude of disobedience of the law rather than this offence being an uncharacteristic aberration. Further, the sentencing judge took into account these prior convictions as convictions which illuminated the moral culpability of the applicant and showed a dangerous propensity and a need to impose condign punishment to deter the applicant from committing further offences of a like kind. The use of the plural to refer to the one prior conviction for common assault is an unfortunate aspect of his Honour's comment. His Honour, while describing the applicant's prior convictions as "limited", expressed the view that they could be taken into account because "they are of a similar nature." I do not agree. Nor do I consider they meet the conditions in Veen (No. 2) , supra , which are necessary in order for them to be taken into account in the manner in which his Honour has done. 24 His Honour's remarks on sentence dealt with the question of remorse and took a view, which was open to him, that the applicant had sought to "shift the blame to others and to minimise the effect that his relatively unprovoked attack had on the victim." This, and other matters, caused his Honour to qualify any acceptance by him of the contrition or remorse of the applicant. The other matters to which his Honour was referring in relation to remorse included what his Honour described as an equally disturbing aspect of a comment by the clinical psychologist, Peter Champion, relating to the view expressed by the applicant that the victim was, at least in part, culpable. The comment of Mr Champion noted the distinction made by the applicant between regret for his actions and sympathy for the victim and a belief, vindicated in the mind of the applicant by evidence given at his brother's trial, that the victim's actions were in part responsible for the incident. Nevertheless, the same passage spoke of the applicant's nightmares and feelings of guilt relating to the injuries suffered by the victim. 25 His Honour came to the view that the objective seriousness of the offence was at the "upper mid range of seriousness of criminality". Neither party to the appeal takes issue with that assessment. His Honour noted that in coming to that view his Honour meant "to reflect the maximum penalty of 25 years as the reference or guide post for that determination." (my emphasis) 26 The remarks on sentence deal at length with the subjective circumstances of the applicant. There is evidence before this Court and there was evidence before the sentencing judge from a psychiatrist, Dr Allnutt, and from Mr Champion, a consulting clinical psychologist. That evidence is to the effect that the applicant has suffered and is suffering epilepsy and a history of substance abuse and mental state disturbance. He is the middle child of seven and came from a loving and supportive family. Both of his parents suffer from diabetes. The psychiatric/psychological reports describe his state as depressive with a current vulnerability to paranoia. He suffers from a number of symptoms including a depressed mood, reduced energy, sleep, concentration and motivation with some suicidal ideation. The psychiatrist described the applicant, which description was accepted by the sentencing judge, as having an underlying paranoid personality. The sentencing judge also referred to that part of the report that discussed the possibility that in the past these problems (including thoughts that people might be plotting to kill him) had reached delusional proportions. The sentencing judge recited two passages from the report of Dr Allnutt, which were: "He tends to be oversensitive to the gestures of others and tends to derive negative connotations from their behaviour towards him. That being that they are in some way demeaning him, criticising him or judging him. On these occasions he experiences his anxiety with symptoms of panic including shortness of breath, palpitations, sweatiness and tremulousness. … At the time of the alleged offence your client would have been more vulnerable to misinterpreting the intent of the victims, exaggerating that intent in his mind. He would have been vulnerable to responding to the situation with a high degree of anxiety. In addition to this at the time your client was taking anabolic steroids. Your client described a number of symptoms consistent with anabolic steroids including a sense of euphoria, increased energy and a sense of increased power. He also describes increased irritability. The effect of the anabolic steroids combined with his underlying paranoid personality would have compounded and increased his vulnerability in responding to what, to others, would be a seemingly innocent situation in a manner in which he felt he was under threat. It is therefore probable that at the material time of the alleged offence, your client misinterpreted the intent of the victims and responded in an aggressive manner." 27 Before finalising the summary of relevant matters and the remarks on sentence, I make a further comment about one aspect of the remarks. During the course of the remarks Delaney DCJ said: "I state that in the case of any ambiguity or imperfection of expression during the course of these reasons I have not counted or taken into account any matters of aggravation, any element of an offence to which the offender has pleaded guilty. … I note that I am required in sentencing to impose, firstly, a non-parole period and then a balance of sentence. … [His Honour then set out s.44(1) and s.44(2)] … That section does not authorise the extension of the sentence to take into account any alteration under s.44(2) and I do not do so, although I propose in this case to find special circumstances." (see R v Styman [2005] NSWCCA 129). 28 The latter part of that comment relates to the first ground of appeal. However, the first part of the citation above is an inappropriate expression, which has, and can have, no effect. The task of sentencing is a difficult one. It requires an intuitive determination which reconciles sometimes conflicting goals. Those goals are set by the legislative scheme and the principles adumbrated by the High Court of Australia and other courts. It is made more difficult because the expectation of the community has added to the burden of judges in sentencing, particularly in the District Court, where resources are limited and the number of offences with which the Court must deal creates a huge burden on each judge. No appellate judge is unmindful of those difficulties. However, an appeal is one of the few means by which consistency of approach and comparability of sentences can be maintained. Appeals are a means by which offenders can ensure that the law is applied. A general, overriding "limitation or intention clause" in remarks on sentence will not have the effect which, it seems, Delaney DCJ is seeking. The remarks and the sentence will speak for themselves. If there has been double counting in fact, no expression of opinion of that kind will overcome it. If any element of an offence has been taken into account as a matter of aggravation, that is a matter that must be ascertained from the sentence imposed and the remarks and reasons for imposing it. An expression such as this may engender in an offender a view that the sentencing judge, like Lady Macbeth, "protesteth too much". The second aspect of the above quotation is a matter with which I will deal when dealing with the grounds of appeal. Ground 1: Misapplication of s.44 of the Crimes (Sentencing Procedure) Act 1999 29 This ground of appeal alleges that the principles applicable under s.44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were not applied by his Honour. Section 44 relevantly provides: "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). (3) The failure of a court to comply with subsection (2) does not invalidate the sentence." 30 His Honour recited both subsections 44(1) and 44(2) in his remarks on sentence and thereafter made the following comment: "That section does not authorise the extension of the sentence to take into account any alteration under s.44(2) and I do not do so although I propose in this case to find special circumstances. (See the [sic] R v Styman [2005] NSWCCA)" 31 His Honour, quite correctly, found that special circumstances existed and they included: a the need for rehabilitation for drug and alcohol counselling; b the need for rehabilitation to obtain proper and secure employment when released; c that this will be the first time the offender has served a period of full-time custody. 32 Other matters going to special circumstances included the need for general counselling for the psychological issues raised in the report of the psychiatrist and psychologist and referred to above. This is counselling beyond drug and alcohol rehabilitation counselling. There is little doubt that the nature of this offence had been occasioned by, not only the effect of drugs, including steroids, but also the apparent paranoia and inability to control anger which is part of the psychological make up of the applicant. As noted on a number of occasions, and referred to by Delaney DCJ, the effect of drugs on a person committing an offence may explain the offence but does not excuse the criminality. Society expects of persons who have reached some maturity and who do not suffer mental impairment an ability to control their emotions and reactions to ordinary inoffensive (and sometimes marginally offensive) interactions with others in society. 33 Criticism is made of his Honour's remarks because his Honour said in his remarks on sentence: "In my opinion the starting point for sentence is well above the standard non-parole period." 34 It is said this puts the standard non-parole period as more than a reference point or guidepost. His Honour had previously made clear that the standard non-parole period was not directly applicable because of the applicant's guilty plea and the standard non-parole period was therefore "a reference point or guidepost as to what the appropriate non-parole period in any case ought to be". 35 The criticism of his Honour's remarks is, if it be a valid criticism at all, a counsel of perfection. 36 The other criticism that is made of his Honour's process may have more merit. It is submitted that the manner in which his Honour arrived at the sentence involved the fixing of a non-parole period, the finding of special circumstances and the lengthening of the total sentence to be imposed on account of the special circumstances. There is no doubt that there are aspects of the remarks of his Honour which give some credence to this submission. 37 In R v Way (2004) 60 NSWLR 168 the Court (Spigelman CJ, Wood CJ at CL and Simpson J) discussed the proper method of using a standard non-parole period and the method of sentencing. The Court there said: "[117] A sentencing judge must ask and answer the following question: 'Are there reasons for not imposing the standard non-parole period?' [118] That question will be answered by considering: (i) the objective seriousness of the offence considered in the light of the facts which relate directly to its commission including those which may explain why it was committed so as to determine whether it answers the description of one that falls into the midrange of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation and of mitigation, which are present in the subject case or which apply to the particular offender, as listed in s.21A(2) and (3), and as incorporated by the general provisions in s.21A(1)(c) and by the concluding sentence to s.21A(1). [119] Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply. … [121] The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect of the purposes mentioned in s.3A of the Crimes (Sentencing Procedure) Act 1999 . [122] In this approach, a standard non-parole period can properly take its place as a reference point or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. … [123] The reference point has, in this sense, an important role to play ensuring consistency in sentencing. [124] The desirability of the judge adopting the practice of standing back after reaching that provisional sentence and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSW CCA 335 at [45]) can not be understated, as the existence of a standard non-parole period is likely to be of assistance in this respect." 38 As earlier stated, his Honour determined that the offence in question fell within "the upper mid-range of seriousness of criminality, and by that I [Delaney DCJ] mean to reflect the maximum penalty of 25 years as the reference or guidepost for that determination." (emphasis is mine) 39 However, his Honour went on to cite AJP v The Queen (2004) 150 A Crim R 575 to the effect that the standard non-parole period, even when not directly applicable, ought not be overlooked and is to be retained as a guidepost for consideration of what an appropriate sentence might be. 40 As was made clear in Way, supra, the approach that has been adopted at least since R v Moffitt (1990) 20 NSWLR 114 is to continue. That process, and the judgment of the Court in Moffitt, makes clear that it is not the reasoning process of a judge which is mandated by the provisions of s.44 and/or s.45 of the Act. Section 44 controls the judicial act, not the process of reasoning leading to such an act (Moffitt, per Badgery-Parker J at 134.E); it prescribes the form of sentence to be pronounced, not the mental process in reaching it. It is permissible for a sentencing judge who intuitively arrives at a view, taking into account all of the circumstances, to fix the length of a non-parole period then to calculate an additional term. If the Judge has not already taken into account special circumstances that the judge may have found, in fixing the non-parole period, the judge is entitled to revisit the length of the non-parole period in the reasoning process, in order to arrive at a non-parole period within the terms of the total sentence commensurate with those special circumstances. Alternatively, a sentencing judge is entitled to take into account the special circumstances when first arriving at the non-parole period. The reasoning process (leaving aside the debate between structured and intuitive sentencing) is not mandated by the provisions of s.44 of the Act. Sentencing involves an exercise of discretion which can not be confined within rigid limits (Moffitt, supra, per Sammuels JA at 118.D) and, so long as there is no error of principle in the reasoning process undertaken, the remarks on sentence ought not be scrutinised for nuances for the purpose of inferring an error of law where one is not expressed. 41 His Honour did not, in this regard, mistake the principles on sentencing. Nor does any part of his remarks allow the Court to identify a misapplication of them. Ground 2: Manifest Error 42 As already stated, his Honour discounted the sentence by 20 percent on account of the applicant's plea. On that basis, the starting point for the sentence was 13 years and 1½ months and the starting point for the non-parole period was 7 years and 6 months. One can understand an applicant feeling aggrieved that discounts have not been in fact applied when calculating the effect of the discount renders the starting point at such an odd figure. I make the comment that we must bear in mind that there is a significant degree of rounding and, for all we know, such rounding could have been in the applicant's favour. Nevertheless, it is essential that a discount that is applied ought display a transparent process which does not give the parties the impression that there is a degree of arbitrariness in the figures that have been chosen. 43 Manifest error, as the term indicates, is an error manifest in the sentence imposed, which allows an appeal court to interfere with an exercise of discretion even though the Court is unable to identify a particular error. Possibly because of the perception in the profession of the operation of s.6(3) of the Criminal Appeal Act 1912, there is a tendency to include identifiable errors, for example the misapplication of the principles in Veen (No. 2), supra, under this general heading. This was done here. It should not be encouraged. 44 Appeals against sentence exist, at least in part, to ensure a degree of consistency of approach and result. This is so that the appeal court can correct sentences which are imposed outside the range of sentences for an offence and offender of that kind, bearing in mind objective criminality and all of the subjective factors involved. 45 As the sentencing judge noted, this is an extremely serious offence. But for good grace and the skill of the medical profession in Australia, it is highly possible that the applicant could have been facing a murder charge. That is not a factor that can be taken into account in determining sentence, but is an indicator to the level of violence and damage occasioned by the conduct of the applicant. Nevertheless, as the sentencing judge noted, at least by implication, this is not in the worst category of case for an offence of this kind. It involves no premeditation or planning; there is no extensive period where the applicant could have cooled off. It displays violence, loss of temper and inability to control one's emotional reactions to everyday occurrences. It is a crime of impulse and bespeaks an inability to control one's anger. This is one of the reasons that his Honour found special circumstances and the need for a rehabilitation process in the community. 46 The applicant put before the Court a summary of cases in which sentences have been imposed for offences in contravention of this provision where the offence was wounding by knife. In so doing, the applicant puts forward 14 cases, only two of which were delivered during the currency of the legislation imposing the standard non-parole period. A schedule of cases of that kind is not usually helpful. It tends to undermine the necessary level of individuality in any sentencing process. Furthermore, 14 cases is not a particularly good sample, if one were to apply statistical averages. 47 The statistics provided by the Crown assist a little more. The Judicial Commission's statistics provide 33 cases of offences in contravention of s.33 of the Crimes Act committed after 1 February 2003. The mid-range for all offenders, including upper mid-range, is well below the sentence imposed on the applicant. Those same statistics show that 63 percent of offenders would have received something less than 6 years' non-parole period or fixed term. If one is confined to pleas of guilty, there are only 25 such cases and the respective figures for mid-range suggest 5 to 7 years for whole of sentence and 4½ years for the non-parole period. Nevertheless, the incidence of offences is such that the sample is too small to show a true range. Further, one must be exceedingly careful in applying statistics arithmetically. To do so is to perpetuate an arithmetic process which becomes self fulfilling. It also undermines the necessary discretion that must be brought to bear. 48 Notwithstanding those cautionary notes, it is fair to say that on the basis of those statistics, even in relation to pleas of guilty, the sentence that has been imposed is within the range of worst case sentences rather than in the high mid-range sentences. There may be reasons for this. It may be that the comments by his Honour on s.44 of the Act do indicate an approach which lengthened the remainder of the term rather than shortened the non-parole period. It may be that his Honour over-emphasised the prior convictions or that the violence of the prior convictions and the mistaken reference to more than one act of violence has infected his Honour's thinking in reaching, intuitively, the non-parole period and remainder of sentence. It also seems that the courts have been lenient in sentencing for a particularly violent offence. Whatever is the case, given the ranges that are usually imposed, there is available to the applicant a justifiable sense of grievance that he has not been sentenced in the mid-range and the sentence is excessive. 49 In these circumstances, one is now required to assess whether a lesser sentence is warranted. In my opinion, it is. I have taken into account the references before his Honour, the psychiatric and psychological report and other material tendered before his Honour. I have also taken into account, at this stage, the additional material presented before this Court. This is the first occasion the applicant has been incarcerated. In terms of total sentence, in the circumstances of this offence and this offender, a starting point, before discount for plea of guilty, of 12 years seems appropriate. I continue, with some reluctance, the 20 percent discount for the plea of guilty. I also find special circumstances, as did his Honour, but, because this is not an issue, I do not set out or repeat each of the factors. I propose the following orders: a Leave to appeal be granted; b The sentence imposed on the applicant by his Honour Judge Delaney on 7 June 2005 be quashed; c For the offence of maliciously wound with intent to do grievous bodily harm contrary to s.33 of the Crimes Act 1900 (NSW), committed on 15 December 2003, the applicant be sentenced to imprisonment for a non-parole period of 5 years to commence on 16 December 2003 and expire on 15 December 2008, with a balance of sentence of 4 years and 7 months to commence on 16 December 2008 and expire on 15 July 2013. The earliest date the applicant would be eligible for release is 15 December 2008. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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