New South Wales Court of Criminal Appeal CITATION: R v Joel TORY; R v Luke TORY [2006] NSWCCA 18 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 7 February 2006 JUDGMENT DATE: 16 February 2006 JUDGMENT OF: Hunt AJA at 1; Adams J at 5; Latham J at 40 DECISION: Orders made in the District Court quashed; New sentences as follows - Luke Tory: sentenced to a non-parole period of 7 months' imprisonment and balance of term of 7 months; Joel Tory: sentenced to a non-parole period of 4 months' imprisonment and a balance of term of 6 months; Sentences suspended CATCHWORDS: Sentence - Crown appeal - home invasion - relevance of motives - significance of positive good character - objective seriousness - relevance of standard non-parole period LEGISLATION CITED: Crimes Act 1900 s 105A Crimes (Sentencing Procedure) Act 1999 ss 12, 21A, 54B Pellew v The Queen [2004] NSWCCA 434; 150 A Crim R 575 R v Davis [2004] NSWCCA 319 CASES CITED: R v Elmir & Anor [2003] NSWCCA 192 R v Thomson & Houlton (2000) 115 ACrimR 104 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Regina PARTIES: v Joel Clayton TORY; Luke Albert TORY FILE NUMBER(S): CCA 2005/1700; 2005/1708 COUNSEL: G Rowling - Crown R Webb - Respondents SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions KQ Lawyers - Respondents LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/41/0063 LOWER COURT JUDICIAL OFFICER: Phelan DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1700 2005/1708 HUNT AJA ADAMS J LATHAM J 10, 16 February 2006 REGINA v Joel Clayton TORY REGINA v Luke Albert TORY Judgment 1 HUNT AJA: I have read the judgment prepared by Adams J. I agree with the orders he has proposed, but I do not agree with the reasons he has expressed for those orders in one important respect. 2 When this Court comes to re-sentence the respondents, it must take into account the effect of the double jeopardy to the respondents in having to stand twice for sentence. That means that sentences imposed by this Court in a successful Crown appeal will usually be lower than the sentences which should have been imposed at first instance. Adams J has concluded that, having regard to the double jeopardy and the exceptional subjective circumstances of the respondents, the custodial sentences he has proposed should be suspended. I agree that the two respondents have each exceptional subjective circumstances, but these have already been given substantial weight in the sentences now to be imposed. 3 In my opinion, the offences warranted custodial sentences without suspension at first instance, notwithstanding the exceptional subjective circumstances of the respondents, and for a somewhat longer period than the total sentences of fourteen and ten months now being imposed. Nevertheless, I agree that the custodial sentences proposed by Adams J should be suspended, but only because of the double jeopardy element inherent in Crown appeals. 4 Since preparing this judgment, I have read the judgment prepared by Latham J, and I agree entirely with what she has said. 5 ADAMS J: Introduction 6 Luke Anthony Tory and Joel Clayton Tory, the respondents, were each convicted following their pleas of guilty on a charge of aggravated breaking and entering and committing a serious indictable offence on 31 July 2004. The circumstances of aggravation as prescribed by s105A of the Crimes Act 1900 were that the respondents were armed with a golf club, they were in company, they used corporal violence and they knew there were persons in the house. The maximum sentence prescribed for this offence is twenty years imprisonment. The standard non-parole period applying to a case in the middle of the range of objective seriousness is five years. On 28 July 2005 each respondent was ordered to enter into a good behaviour bond for two years. In Luke Tory's case, the court took into account a charge of common assault that was committed at the same time as the principal offence. The Crown has appealed against the orders imposed in the District Court on the ground of manifest inadequacy. Notice of intention to appeal was given on 24 August 2005. The Facts 7 The facts were not in dispute. The following narrative is largely taken from the learned sentencing Judge's reasons for sentence. I have added some details which are not controversial. On Saturday 31 July 2004 the victim Mark John Hughes was at his residence at Cambewarra. Also present were Michael and Wendy Roberts. The two respondents and Mr Cannan, their father, had arrived at the premises in a motor vehicle and walked directly to the front door of Mr Hughes' home. It was about 5.30pm. Also in the vehicle were the respondents' sisters. They did not alight. Luke Tory carried a golf putter, which he had removed from his golf bag in the boot. 8 Mr Hughes was standing near the back door of the premises having a cigarette whilst the Roberts were seated in the lounge room. It was about 5 o'clock in the evening. Without warning, the front door of the premises was forced open and male voices yelled, "Where's Mark?" Mr Hughes walked from the back door towards the front door and saw the respondents moving towards him. Mr Roberts stood up from his chair. Luke Tory pushed Mr Roberts to the chest, causing him to fall back on to his chair. It was this act which comprised the common assault taken into account in his case. Luke Tory, followed by his brother, walked towards the kitchen area. Both of them yelled, "Where the fuck's Mark?" About this time Mr Cannan entered the premises and stood in the lounge room. He told the Roberts, "Get out". They were frightened and left the premises through the front door, Mrs Roberts calling to a neighbour across the road to telephone the police. The yelling inside the house continued. 9 Inside the house, the respondents pushed Mr Hughes against the architrave near the back door. Both were shouting at him. Luke Tory hit the left side of Mr Hughes' head with the golf putter. He fell to the floor and was hit again when he was down. The respondents then lifted him onto his feet, pushed his head into the architrave of the back door a number of times and shouted, "Just leave her alone". Mr Hughes promised he would. The "her" in question was the 14-year-old sister of the respondents, a matter I deal with later. Mr Cannan, who was standing just behind the respondents, stepped forward and punched Mr Hughes to the left side of his head causing him to fall to the ground again. The three assailants then left the premises, got into their car and drove away. The whole incident probably took no longer than two minutes or so. The Roberts, together with some neighbours went to Mr Hughes' assistance and police and ambulance attended his home shortly after. 10 The photographs show a number of facial injuries described by the learned sentencing Judge as largely superficial, with some blood on the left side of the victim's face near his ear and a number of other markings to his forehead, particularly on the left. 11 The respondents and Mr Cannan went to the Nowra police station a few hours after the attack, where they were arrested and charged with the present offences. All three men participated in video taped interviews. Their versions differed somewhat but, in substance, they admitted to violently entering the premises and behaving in a violent manner towards Mr Hughes. They also admitted that a golf putter had been taken into the premises. However, the respondents understated the extent of the violence and the use of the putter. In Joel's case, he took the blame for using the putter because he said that he was worried about his older brother's situation. He was about 23 at the time and Luke Tory about 30, married and with children. I interpolate that at the sentence proceedings agreed facts were entered and the respondents candidly admitted their actions. Affidavits made by them were read and they gave evidence. There was no suggestion that what they said in their affidavits or in their evidence was untrue. The respondents pleaded guilty to the charges in the Local Court and adhered to their pleas in the District Court. Cautionary note 12 Evidence was given in the sentence proceedings highly adverse to Mr Hughes' character. He has not had any opportunity to make reply to these claims. There is no doubt that the witnesses, including particularly the respondents, believed the evidence that they gave was truthful. However, it was not necessary for the Court to determine in any ultimate sense whether their descriptions of Mr Hughes' conduct were accurate and, given the nature of the proceedings, it was not necessary for Mr Hughes to have been called as a witness. As Mr Hughes has not been given any opportunity to reply to the allegations made about him, it would not be fair or appropriate to publish the adverse material without at the same time noting that he has not had an opportunity to reply and that it was not necessary for the Court finally to determine whether his conduct was indeed that which the witnesses described. The background to the offences 13 Having regard to the undoubtedly good character of all three assailants, their actions on the evening in question are difficult indeed to understand. The respondents gave evidence, supported in significant respects by their sisters, as to the events leading up to and explaining (though not excusing) what happened. It is to this matter that I now turn. Shanay is the elder of two sisters, she being aged 20 years at the time of the offences and Jayde having just turned 14 years at that time. Shanay had been in a relationship with Mr Hughes for about six weeks in 2004. He was then aged 21 years. Their relationship broke up in large part because she became aware that Mr Hughes was frequently using amphetamines, ecstasy and marijuana. Sometime about mid 2004, a relationship was starting to develop between Jayde and Mr Hughes. Jayde had disclosed certain sexual conduct to her elder sister and it was clear that she, as Shanay put it, "had a crush on Mark and was obviously sexually interested in" him. She took the course of calling Mr Hughes and telling him that her sister had a crush on him but that he should not see her or return any of her calls or text messages. However, two weeks later, Jayde called Shanay from Bomaderry station, crying and upset and told Shanay, when she went to pick her up, that Mr Hughes had invited her down with a view to staying overnight at his place. It appeared that, indeed, he had invited her but, when she got to Bomaderry, had declined to collect her from the station, telling her to walk. Jayde thought that his house was about 10 to 15 kilometres from the station, making walking plainly impossible and, very upset, called Shanay. Earlier that day, Jayde had made elaborate and misleading arrangements with her family about her movements that day and overnight, to disguise from them what she intended to do. 14 Not surprisingly, when Shanay heard the truth she became very upset and called her father and brothers who were then playing golf. Shanay had taken Jayde to a friend's house at East Nowra and Mr Cannan and the respondents arrived there shortly after the telephone call. She told them what had happened and Jayde was questioned about it. It seems that she was also upset, crying and in substance refusing to answer their questions. It is clear that this confrontation was highly charged, Mr Cannan, especially, becoming quite emotional. 15 The respondents, Mr Cannan and Shanay then decided that they would talk to Mr Hughes. Luke Tory obtained Mr Hughes' telephone number from Shanay and called him saying that he wanted to talk to him. Mr Hughes said that he was at the putt-putt golf course in South Nowra and the whole group – Mr Cannan, the respondents, Shanay, and Jayde – went off to find him. He was not there when they arrived and they went to another location in South Nowra after being told that he was there. He was not there either, nor at another house at East Nowra to which they had been directed. 16 There seems to be little doubt that by this time the respondents and, for that matter Mr Cannan, were angry and frustrated. They believed that Mr Hughes had acted inappropriately towards Jayde who was, after all, only just 14 years of age. They were very concerned about the possibility of a sexual relationship between Jayde and Mr Hughes, fears which were exacerbated by what they believed about his serious drug use. They inferred from the fact that they had not found him at any of the places to which they had been directed that he had indeed been guilty of very wrong behaviour so far as their young sister was concerned and did not wish to face them. They had been undoubtedly very upset when Shanay had told them about the situation, including Jayde's behaviour and attitude and it is reasonable to infer that this state of high emotions had not been resolved by the time the men arrived at Mr Hughes' house. The respondents' accounts 17 The bringing of the putter (which, I accept, had simply been available in the boot of the car because they had driven directly from the golf club) was a particularly nasty element in the violence. Luke Tory, who wielded the putter, said that he had initially taken it to the house in case Mr Hughes had friends and he wished to frighten them with it and stop them from interfering with their intended emphatic warning off of Mr Hughes. His account of what happened and of his state of mind (which was not sought to be controverted by the Crown prosecutor) is as follows – "… I thought at the time that Mark was trying to run away because he had done something wrong. I was angry and fearful for Jade as to what may have occurred or what might occur in the future. After I had been given the run around with my Dad with Joel, Shanay suggested that we go to Mark's place. By the time I had arrived at Mark's place I had jumped to all sorts of conclusions. It was never my intention to in any way seriously hurt Mark when I went in to the house. I wanted to give him a very stern verbal warning and, I suppose, verbally abuse him and shake him up a bit. I though that by doing this it would put an end to Jayde being able to do anything about her sexual interest in Mark…Joel and I confronted Mark. My Dad came behind Joel and I. He did not enter the house until some time after Joel and I. I recall that Joel and I started shouting at Mark and then I lost my temper and pushed Mark backwards. I wanted to frighten him and things got out of hand. Joel pushed Mark against the wall. We were both shouting at him and I hit Mark with a golf stick which I had taken from the boot of the car when I went into the house. I deliberately didn't hit Mark hard because I didn't want to seriously hurt him or occasion any significant injury to him. At the time of going into the house I didn't really have any plan to use the golf stick, however, at the time I thought Mark might be with friends and that I would be able to scare them with it for long enough to berate Mark and to leave him in no doubt that any further invitations to Jayde would not be tolerated…Everything happened very quickly. At the time when I set upon Mark with my Dad and Joel I honestly believed that Mark had done something very wrong with Jayde and that he needed to be warned off. However, being part of the violent episode was so ugly that I felt sick and ashamed even while it was going on. The whole episode in the house lasted one or two minutes and then I left with Joel and my Dad." 18 I have already mentioned the concern about what was believed to be Mr Hughes' serious drug habit. An additional factor was that a member of the respondents' family had been sexually molested when she was 10 years of age by a family member who later moved to another State. Luke Tory had always felt that he had somehow let that young girl down by not preventing what had happened. This issue also played on his mind at the time. 19 Luke Tory added – "I am very ashamed and embarrassed about what I did that day. Everything just got out of hand once we got to the house. I hope that Mark can accept my sincere apology for my stupid and violent conduct. I have never done anything like that before in my life. I will never do anything like that again." 20 In his evidence at the sentence proceedings, Joel Tory said that his initial intention when going to the victim's house was to speak to him, find out actually what was going on between him and his "little sister" and to warn him off. He explained why he had attempted to minimise his older brother's involvement saying that he was trying to protect him. His Honour said – "Q: Is that wise, it could have got you a longer jail sentence? A: I know but I, I felt that my brother had a lot more to lose than I did, he had two young, two young children, a partner, a substantial mortgage he is still paying for and a very successful career and I felt I didn't have anything to lose, I just wanted to help my brother." COUNSEL Q: You are aware of the real seriousness with which the courts and the community regard this sort of behaviour, breaking into people's premises, their own home and using force, you understand that now? A: I do now. Q: Looking back on it now, what do you feel about what you did? A: I deeply regret what I did, I realise it was wrong, just very sorry." The Objective Seriousness of the Offence 21 The objective circumstances of a crime include, of course, not only the elements of the offence, the physical circumstances of its commission and the nature and extent of any injury or loss caused but also the purpose and intention of the offenders and the extent of any planning. Here, the offence involved breaking into a person's home and the infliction of physical injury upon him that, it is obvious, must have been not only terrifying but also very painful and that for some time. All unlawful violence must be regarded as a serious infraction of the criminal law. Indeed, it can fairly be said that the primary purpose of the criminal law is to safeguard the physical integrity of each citizen. Nor can the law permit this protection to be undermined by persons who think, for some reason or another, that they are entitled to inflict violence on others, least of all in the security of the victim's own home. 22 In this case, a significant mitigating objective feature is that the respondents were not motivated by personal gain and the extent of violence, including bursting through the front door, resulted from a temporary loss of control by the respondents whose judgment had become temporarily warped by the sudden situation with which they were confronted affecting the youngest member of their family, a girl who had only just turned 14 years of age. In my view, having regard to the manner in which the proceedings were conducted below, it should be accepted that they did not intend at first to do more than to frighten Mr Hughes and that they did not intend any actual violence. 23 It was not submitted by the prosecutor below that the respondents were motivated by a desire to revenge themselves on Mr Hughes. It is obvious that they were angered by what they believed was his conduct towards their sister and that this anger fuelled the violence that occurred. However, there is no proper basis for concluding that they were motivated by the desire for revenge. The learned sentencing judge accepted the truthfulness of the respondents' evidence about their motives and his Honour's conclusions should be accepted for the purposes of this appeal. 24 It is clear, however, that the respondents – at least at the time when they committed these offences – considered that they were somehow acting rightly. This aspect of the case demonstrates the continued relevance of the element of general deterrence, even where, at one level, motives are not conventionally criminal. 25 Other objective features of Joel Tory's offence are that it was committed in the company of his father and his older brother. He was not the first to enter the house and he did not wield the club. He was, of course, a participant in both the violent entry and the infliction of violence. The subjective features 26 I come now to the subjective circumstances of the respondents. Joel Tory had no prior criminal convictions. This was his first offence. The learned sentencing Judge rightly described the character evidence in respect of Joel Tory as "most impressive", noting that they demonstrate that he was steady going, conscientious, hard working and a law abiding citizen. His Honour concluded, again I think rightly, that an offence of the kind which he committed is completely out of character. 27 Luke Tory had several convictions, one for stealing electricity when he was 18 years of age, a conviction for mid-range PCA and two low PCA offences. On the other hand, there was overwhelming evidence of his personal integrity and the high respect in which he is held in the community in which he lives and works. For many years he has been actively involved in charitable work in the district. That has included not only raising substantial sums for various voluntary welfare organisations, the children's ward at Wollongong Hospital, the St Vincent de Paul Society and the Aboriginal community, but also being actively personally involved in assisting and counselling persons in need. Conduct of this kind, in which an offender actively makes a real and substantial contribution to his or her community, must always be given considerable significance when a question arises as to the appropriate punishment which should be meted out when he or she breaches the criminal law. This is especially so, in my view, where the offence is not committed for motives of personal gain and as the result of a temporary aberration of judgment. 28 As I have already indicated, the substantial good character of the respondent Luke Tory provides a strong basis for inferring that, indeed, his involvement in this offence was a momentary and aberrant error of judgment brought about by his being suddenly confronted with what he perceived as not only serious misbehaviour on the part of his younger sister but the serious risks to her posed by a combination of that misbehaviour and the conduct and character of the victim. I should add, though it is not necessary I think to detail this material, that extensive psychological testing of both respondents support this characterisation of what occurred. 29 The learned sentencing judge accepted (as this Court should) that the respondents were truly remorseful and contrite for what they had done. There is every reason for accepting the evidence of both respondents that they will not offend in this way again. 30 I should mention, as affecting Joel Tory, that the restrictive conditions of his bail had the result that he was unable for a season to play representative football for his club. This meant that he could not earn the $250 per game that he would have been paid. He was also required to report to Blacktown Police Station daily for some months. Section 21A, Crimes (Sentencing Procedure) Act 1999 31 So far as s 21A of the Crimes (Sentencing Procedure) Act 1999 is concerned, all the aggravating factors are elements of the offence and hence should not be counted additionally. So far as the listed mitigating factors are concerned, the injury was not more substantial than already implicit in the elements of the offence, the activity was not part of a planned or organized criminal activity, neither offender has a record or significant record of criminal offences, both offenders are of good character, are unlikely to re-offend, have good prospects of rehabilitation, are remorseful and have pleaded guilty. This appeal 32 As I have already said, the Crown submits that, despite the character and antecedents of these respondents and the motives which incited them to commit their offences, the giving to them of bonds to be of good behaviour indicated such a disregard for the objective seriousness of those offences as to manifest error. In my view this submission is correct. Furthermore, the Crown submits, the learned trial Judge should have reflected in his sentence of Luke Tory, though perhaps not in any substantial way, the additional criminality involved in the common assault which he asked to be taken into account. Upon the assumption that a custodial penalty must have been imposed, I cannot see that increasing that custodial penalty by taking into account the common assault would have been justified since it is clear that dealing with a common assault separately would not have involved a period of custody at all, even one to be served concurrently. 33 I mention for the sake of completeness that the Crown placed considerable weight upon the decision in R v Elmir & Anor [2003] NSW CCA 192, in which this Court increased sentences imposed for offences identical to those charged in this case from periodic detention to full time imprisonment. It is unnecessary to analyse the circumstances of Elmir. It is sufficient to say that objectively the offences committed in Elmir were very much more serious than those committed here; nor were the subjective circumstances of the respondents as favourable as those of the respondents in the instant case. 34 It is important to bear in mind that, even if this Court finds, on a Crown appeal, error in the Court below and that the sentences imposed were manifestly inadequate it retains an overriding discretion depending upon the circumstances of the case not to vary the sentence. Moreover, even where this Court determines that the sentence should be varied to increase the penalty, the principles applying to Crown appeals, mainly that concerning double jeopardy, will result in an outcome less severe than that which could or should have been imposed below. 35 It is clear that in both cases the full utilitarian discount specified in Thomson & Houlton (2000) 115 A Crim R 104 should be applied. Section 54B of the Crimes (Sentencing Procedure) Act 1999 does not have the effect of applying the standard non-parole period to the present circumstances as the respondents both pleaded guilty: R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131. The standard non-parole period is nevertheless to be borne in mind: R v Davies [2004] NSWCCA 319; R v AJP [2004] NSWCCA 434; 150 A Crim R 575. This does not mean, of course, that it should be regarded in any sense as the dominant or most significant factor in assessing the objective seriousness of a particular offence: it is simply one of the matters that must be taken into account. The need for an instinctive synthesis of all the relevant sentencing considerations is as great at appellate level as it is at first instance. Of course, where a particular error is plain, it must be identified. 36 In this case the patent error in the learned sentencing judge's reasons for sentence is the failure to identify sufficiently the reasons for which he considered that it was appropriate to regard the case as significantly less objectively serious than a case falling within the middle of the range of objective seriousness. This requirement applied even though the respondents pleaded guilty and even though the standard non-parole period was but a signpost (to use one of the metaphors proposed in R v Way (2004) 60 NSWLR 168). It is, I think, obvious that, if the sentencing court concludes that the objective circumstances of a particular case bring it within the middle of the range of objective seriousness, reasons must also be given explaining how this conclusion was reached and identifying the particular matters that bring the case within the statutory category. 37 It is, in my view, clear that the objective seriousness of the offences committed here is significantly less than the middle of the range of objective seriousness for offences of this kind. The following objective features seem to me to differentiate this case from the middle of the range case: firstly, the respondents were motivated by a genuine desire to protect their sister from inappropriate, indeed, criminal conduct (both sexual and drug use) that had the potential to cause significant harm; secondly, the infliction of bodily violence was spontaneous and unplanned; and, thirdly, the offence was of very brief duration. Once the subjective considerations are placed in the scales, it is evident that an appropriate non-parole period must be significantly below the standard non-parole period. It is obvious, I hope, from this discussion that I have not overlooked the indicative significance of the standard non-parole period, at least in terms of marking, to the extent that it does, the seriousness of the offences. Proposed orders 38 In my view, this Court should mark the seriousness of the offences committed by the respondents by the imposition of full time terms of imprisonment. The orders made in the District Court should therefore be quashed. Accordingly, I propose the following sentences: Luke Tory: sentenced to a non-parole period of 7 months' imprisonment and a balance of term of 7 months. Joel Tory: sentenced to a non-parole period of 4 months' imprisonment and a balance of term of 6 months. The special circumstances justifying departure from the statutory calculus comprise the fact that for both respondents this will be their first term of imprisonment. 39 Having regard to the double jeopardy arising because this is a Crown appeal and the exceptional subjective circumstances of each of the respondents I propose that the sentences be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 upon their entering into the appropriate bonds. 40 LATHAM J: I have read the Judgment in draft of Adams J and I agree with the orders proposed. However, I wish to add some brief remarks. 41 The only references to the standard non-parole period in the remarks on sentence appear at the very beginning and at the very end. In the first paragraph of the remarks, his Honour says "The offence involves a maximum sentence of 20 years' imprisonment and a standard non-parole period of 5 years". In the penultimate paragraph of the remarks, his Honour says "I note that there is a minimum non-parole period imposed relevant to cases which are taken to trial". Moreover, whilst his Honour recounts the circumstances of the offence in some detail, at no time does he assess its objective gravity relative to an abstract offence in the middle of the range: R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434: R v Porteous [2005] NSWCCA 115. The most his Honour says on the subject of objective gravity is "that there is a serious aspect to these offences", in that the offenders took the law into their own hands. The Appellant relies upon this specific error in support of the appeal, and in my view, rightly so. 42 This Court has stressed that it is not sufficient to pay mere lip service to the standard non-parole period. The fact that a plea of guilty may convert the role of the standard non-parole period into a benchmark or checkpoint does not relieve a sentencing judge of the requirement to provide adequate reasons for a departure from the standard non-parole period: R v Mills [2005] NSWCCA 175. Clearly, his Honour determined to depart from the standard non-parole period to a very marked degree, yet no meaningful reasons are given. In my view, the Appellant's submission on this aspect of the appeal has been made good. 43 I have read the judgment of Hunt AJA in draft and I agree with what his Honour has said. ********** 24/02/2006 - Typographical error in date on coversheet - Paragraph(s) N/A 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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