New South Wales Court of Criminal Appeal CITATION: McDonald v Regina and Slater v Regina [2007] NSWCCA 50 HEARING DATE(S): 22 February 2007 JUDGMENT DATE: 1 March 2007 JUDGMENT OF: Sully J at 1; Bell J at 24; Hoeben J at 25 DECISION: In the case of each application ; leave to appeal against sentence granted; appeal against sentence dismissed LEGISLATION CITED: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) PARTIES: Clarrie Percy McDonald v Regina Adrian Joseph Frederick Slater v Regina FILE NUMBER(S): CCA 2006/1685; 2006/2345 N. . Norman - Crown COUNSEL: C. Smith - McDonald S. Kluss - Slater S. Kavanagh - Crown SOLICITORS: Walker Smith - McDonald R. Hill - Slater LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/31/0172 LOWER COURT JUDICIAL OFFICER: Woods DCJ LOWER COURT DATE OF DECISION: 15 December 2005 IN THE COURT OF CRIMINAL APPEAL 2006/1685 2006/2345 SULLY J BELL J HOEBEN J 1 March 2007 Clarrie Percy McDONALD v REGINA Adrian Joseph Frederick SLATER v REGINA Judgment 1 SULLY J: The two applicants, Mr. McDonald and Mr. Slater, were presented jointly before his Honour Judge Woods QC in the District Court at Taree. They were so presented upon a joint indictment charging each of them with two offences alleged to have taken place on 6 March 2005 at Glenthorne. The first charge thus laid was one of aggravated break and enter with intent to steal. Such an offence is a contravention of section 113(2) of the Crimes Act 1900 (NSW), and it attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 14 years. The second charge was one of an assault in company and occasioning actual bodily harm. Such an offence contravenes section 59(2) of the Crimes Act, and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for 7 years. 2 Both applicants pleaded guilty to both charges. They were dealt with upon the footing that their respective pleas had been early pleas and that they were entitled, in accordance with well established principle, to some proper discounting of sentence on that account. 3 In the event the learned primary Judge sentenced each applicant to imprisonment for each offence. The sentence passed on Mr McDonald in connection with the section 113(2) offence was one of a non-parole period of 4 years and 6 months to commence on 6 March 2005 and to expire on 5 September 2009, with a balance of term of 3 years to expire on 5 September 2012. The sentence passed in respect of the section 59(2) offence was one of a fixed term of imprisonment for 2 years to commence on 6 March 2005 and to expire on 5 March 2007. 4 The sentence passed on Mr. Slater in connection with the section 113(2) offence was one of a non-parole period of 4 years and 1 month to commence on 6 March 2005 and to expire on 5 April 2009, with a balance of term of 2 years and 8 months to expire on 5 December 2011. The sentence passed in respect of the section 59(2) offence was one of a fixed term of imprisonment for 2 years to commence on 6 March 2005 and to expire on 5 March 2007. 5 Each applicant now seeks leave to appeal against his sentences. Each applicant advances one ground of appeal, namely that the sentences imposed are manifestly excessive. 6 The relevant facts are set out as follows in the remarks on sentence: "At the relevant time Lance Porter and his family were at home at 22 Kookaburra Drive, Glenthorne. They had all gone to bed and prior to retiring to bed Lance Porter had locked the house. About 4.00 am he woke to go to the toilet and heard an unusual noise from somewhere in the house. He went to the living room and realised that someone was there. Before he approached he watched the person search through the sideboard drawers. The victim approached the intruder who was one or other of these offenders. The offender turned to face him and it appeared that he was wearing a dark beanie, a dark sloppy joe and dark track pants. Mr. Porter said that he appeared to have a rounded piece of wood in his hand. The fellow swung the piece of wood at his head. Mr. Porter put up his arms to fend off the blow. He managed to block most of the blow but the piece of wood still struck him on the top of the head. While Mr. Porter initially said he thought that was Slater, subsequently, recollecting the event, he said he was not sure whether he was struck on the head before there was a struggle with both of them or when he was only dealing with one of them. But in any event both of them grappled with Mr. Porter. McDonald tried to grab Porter off Slater and Mr. Porter called out for his two sons for assistance. Sean and Jason Porter came to the assistance of their father, and pulled McDonald off. The offender Slater grabbed Mr. Porter by the testicles and caused extreme pain whereupon Mr. Porter bit him until the grip was relaxed. Lance Porter called his son Jason to get a camera, which he did, a digital camera, taking close up facial photographs of both offenders. Mrs. Porter phoned the police and she called out that the police were two minutes away. Things then calmed down to a degree and one or other of the offenders said, "It's a mistake. It's a mistake. We're in the wrong house". The occupants of the house selected by the criminals in alleged error kept them there until the police arrived. They struggled, but the father and the two sons were obviously adequate to the task of keeping them under control. This must have been a fairly frightening exercise for the occupants of the house. The digital photographs were printed out after the police arrived and downloaded onto a disk. The police immediately recognised the offenders, McDonald and Slater. Police recovered from the Porters' house a circular piece of timber about 90 centimetres in length and a hollow metal pipe of about 80 centimetres in length. As well, there was a dark wool balaclava and a dark sloppy joe. None of those recovered items belonged to any of the occupants of the house, the Porter family. Although no fingerprints were found on those objects, I conclude that they belong to one or other of the offenders. Of course, there is on behalf of each of them the plea of guilty to being armed with an offensive weapon and the offensive weapon, I have no doubt, was the hollow metal pipe about 80 centimetres in length, and the circular piece of timber about 90 centimetres in length. Mr. Porter suffered an abrasion to the left side of his forehead in the hairline, abrasions to the left side of his face near the mouth and ear, abrasions to the lower right arm, to both knees, to the right ankle and right big toe, to the right shoulder blade, to the rib area under the right arm and bruising to the inside of the left bicep and the lower left arm. His treating doctor described the injuries as minor. Nonetheless I note that they were multiple." 7 Speaking of the objective criminality of the behaviour thus described, the learned primary Judge said this: "The conduct is so gross and frightening that members of the public expect a sentence to deter other people in the community from similar conduct. All of us who live in any community expect to be able to have peace and tranquillity in our own houses. People are not required to make their houses into armed fortresses." 8 I am in complete and respectful agreement with that assessment of objective criminality. 9 The subjective matters relevant to the respective individual cases of the two applicants were not identical but there were, nevertheless, some broad similarities. 10 Mr. McDonald, when he stood for sentence on 15 December 2005, was within about two months of his 36th birthday. Mr. Slater was then aged about 29 years and 6 months. Each of the applicants had what the learned sentencing Judge described as "….. a major drug problem arising from his early history". Each was a multiple drug abuser. There were other broad similarities in the respective backgrounds of the two applicants, and it is convenient to note them in the words of the learned primary Judge: "Mr. McDonald's history was that of some measure of deprivation and underprivilege, which I note. He has had various jobs but he's been unemployed for the majority of the past 14 years. His main difficulty of course, and society's difficulty, has been his history of intense substance abuse. Cannabis, amphetamine, heroin have all affected him and he has been persistent in this regard. So far as Mr. Slater is concerned, the Probation and Parole Service report refers to his history of legal contacts. It refers to his having had short prison sentences previously. It refers to his background of some degree of under-privilege and deprivation. He came to Taree having been raised primarily in Redfern by his father following an early separation. As with Mr. McDonald I accept that these disturbances in early childhood have no doubt contributed to their problems later in life. Again, Mr. Slater is a person who has worked from time to time and is clearly not incapable of working. Again, he had an early association with illicit drugs, commencing cannabis use at 16, heroin and amphetamines from age 22. He has from time to time made gestures at least if not deeply serious efforts towards rehabilitation from drug use." 11 Both applicants had significant criminal histories. 12 Mr. McDonald stood for sentence with an antecedent criminal history involving a variety of stealing offences; numerous offences of break, enter and steal; offences of assault, of resisting a police officer in the execution of his duty, of violent and disorderly behaviour, of assaulting a police officer, and of dangerous driving causing death, of dangerous driving occasioning grievous bodily harm, and of aggravated break, enter and steal. In December 2001 he was sentenced in the Lismore District Court to various terms of imprisonment; he was released to parole in September 2003; that parole was revoked in July 2004; and he was again released to parole in December 2004 upon conditions with which he did not comply. The two offences committed at Glenthorne were committed, thus, at a time when this applicant was at liberty on parole. 13 Mr. Slater stood for sentence with an antecedent criminal record which was not as bad as that of his co-offender; but it was, nevertheless, a not insignificant criminal record. 14 Mr. Slater's antecedent record embraces a miscellany of driving offences, some of them very serious. The record embraces, also, offences of violence such as assault; resisting arrest; assaulting police; and breaches of apprehended violence orders. In April 2000 Mr. Slater was sentenced to imprisonment for 4 years and 6 months commencing on 11 August 1999, a non-parole period of 2 years and 6 months being stipulated, that non-parole period to expire on 10 February 2002. That sentence of imprisonment was passed in respect of an offence of robbery. At the same time Mr. Slater was sentenced to a fixed term of 1 year for each of two offences; an offence of assault occasioning actual bodily harm, and an offence of attempted stealing from the person. Both of those sentences were dated to commence on 11 August 1999. 15 Mr. Slater was eventually released to parole; and on 13 February 2203 the NSW Parole Board revoked that parole. As best I can divine from the available particulars, that parole was revoked by reason of a number of connected motor vehicle offences which brought Mr. Slater before the Local Court at Taree on 2 February 2003; and which resulted, as to one of the charges, in the passing upon Mr. Slater of a sentence of imprisonment for a fixed term of 3 months to date from 3 February 2003. 16 The learned primary Judge was, of course, mindful of the individual variations of the two particular cases with which he was dealing; and his Honour's ultimate approach was to deal with Mr. Slater a little less severely than the way in which he dealt with Mr. McDonald. There is no room for argument based upon the parity principle; and the contrary was not contended at the hearing of the applications. 17 The learned primary Judge found special circumstances in the case of each applicant. It is unnecessary to say more on that topic than that the findings thus made by his Honour, and the way in which his Honour gave effect to those findings, were well open to his Honour on the material then before him. 18 His Honour's starting point in connection with the section 113(2) offences was a starting point of imprisonment for 10 years in the case of Mr. McDonald; and imprisonment for 9 years in the case of Mr. Slater. His Honour discounted each such provisional starting point by 25 per cent to allow for the respective pleas of guilty; and then set, respectively, non-parole periods and balances of term such as would give practical effect to his Honour's finding, in the case of each applicant, of special circumstances. 19 The case now made on behalf of each applicant focuses essentially upon the provisional starting point taken by the learned primary Judge in connection with the section 113(2) offence committed by each applicant. Provisional starting points of, in the one case 10 years and in the other case 9 years, are said to be manifestly excessive. Reliance is placed upon, essentially, two propositions. One is that the sentence manifests error on its face in that it is so severe that it is reasonably to be inferred that the learned sentencing Judge gave inadequate weight to the particular applicant's subjective circumstances. The other proposition is that the provisional starting point, in the case of each applicant, is manifestly excessive when tested against the relevant sentencing statistics as published from time to time by the Judicial Commission of NSW. 20 I accept, of course, that the relevant sentencing statistics are properly to be considered, but only as broad indicators of a broad range within which a just sentence according to law might be thought to fall in the particular case. I accept that each of the sentences now in issue is, when tested against the relevant statistical material, a severe sentence. It is, surely, trite that a sentence that is severe is not, on that account, necessarily excessive so as to warrant the intervention of this Court. 21 The section 113(2) offence committed, admittedly, by each of the two present applicants was, in my opinion and as I have previously stated, an offence of high objective criminality. It is true, of course, that each applicant was entitled to have taken properly into account such relevant subjective matters as the evidence before the sentencing Court sufficiently established. It is, however, trite that subjective circumstances, however exigent, cannot properly be allowed simply to swamp the relevant objective criminality. Each applicant committed, admittedly, two very serious criminal offences. Each applicant stood for sentence, admittedly, with a bad antecedent criminal record that indicated plainly a need to take proper account of the protection of the public. It seems to me that by any correctly principled reasoning the case of each applicant warranted amply the passing of severe sentences, especially in connection with the section 113(2) offence. 22 In the end, the question which this Court has to decide is set for the Court by section 6(3) of the Criminal Appeal Act 1912 (NSW). That question is whether a less severe sentence "is warranted in law and should have been passed". Having read and considered the remarks on sentence; and having considered also the submissions and other materials that were placed before this Court in connection with the hearing of the present applications, I am unpersuaded that the section 6(3) question, as I have stated it, should be answered favourably to either applicant. 23 In the case of each application, therefore, I favour the following orders: [1] that the application for leave to appeal against sentence be granted; [2] that the appeal against sentence be dismissed. 24 BELL J: I agree with Sully J. 25 HOEBEN J: I agree with Sully 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. 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