New South Wales Court of Criminal Appeal CITATION: WATERS v REGINA [2007] NSWCCA 219 HEARING DATE(S): 25/06/07 JUDGMENT DATE: 2 August 2007 JUDGMENT OF: Giles JA at 1; James J at 2; Hislop J at 45 DECISION: Leave to appeal against sentence granted - Appeal against sentence allowed in part CATCHWORDS: Criminal law - sentencing - intoxication - Aboriginal offender LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Fernando (1992) 76 A Crim R 58 R v Henry (1999) 46 NSWLR 346 PARTIES: Phillip Mark WATERS v REGINA FILE NUMBER(S): CCA 2007/768 CCAP COUNSEL: R Herps - Crown Helen Cox - Applicant SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) Julian Schimmel (Aboriginal Legal Service) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/51/0142 LOWER COURT JUDICIAL OFFICER: PAYNE DCJ IN THE COURT OF CRIMINAL APPEAL 2007/768 CCAP GILES JA JAMES J HISLOP J Thursday 2 August 2007 Phillip Mark WATERS v REGINA Judgment 1 GILES JA: I agree with James J 2 JAMES J: Phillip Mark Waters applied for leave to appeal against sentences imposed on him in the District Court on 5 September 2006 by her Honour Judge Payne for an offence of breaking and entering and committing a serious indictable offence, namely assault occasioning actual bodily harm, and for an offence of common assault, both of the offences having been committed on the same day 20 December 2005. The applicant had pleaded guilty to both offences. In sentencing the applicant for the first offence her Honour took into account a further offence of common assault, also committed on 20 December 2005. 3 For the offence of breaking and entering and committing a serious indictable offence and taking into account the additional offence of common assault, her Honour sentenced the applicant to a term of imprisonment of four years three months two weeks with a non-parole period of two years six months commencing on 20 December 2005, the date on which the applicant had been arrested and from which he had remained in custody. Her Honour arrived at the period of four years three months two weeks for the head sentence, by applying a 25 per cent discount for the utilitarian value of the applicant's plea of guilty to a putative head sentence, before allowing the discount, of five years nine months. For the offence of common assault her Honour imposed a sentence of imprisonment for a fixed term of eleven months commencing on 20 December 2005 and hence totally concurrent with part of the sentence for the first offence. 4 Breaking and entering and committing a serious indictable offence is an offence under s 112(1) of the Crimes Act for which the maximum penalty is imprisonment for fourteen years. Common assault is an offence under s 61 of the Crimes Act for which the maximum penalty is imprisonment for two years. There is no standard non-parole period for either offence. 5 In her remarks on sentence the sentencing judge stated the facts of the offences in a way which was not the subject of any criticism on the hearing of this application. Her Honour had taken her statement of the facts from an agreed statement of facts which was admitted into evidence in the proceedings on sentence. The following statement of the facts of the offences is derived from her Honour's statement in her remarks on sentence. 6 In the late afternoon of 20 December 2005 the victims of the offences, a young man aged twenty and his sister aged sixteen were in their flat in a country town. The front window of the flat was open but the fly screen to the window and the curtains were closed. 7 The applicant, who was not previously known to either of the victims, opened the closed fly screen from outside the flat and climbed into the flat. In doing so he knocked over a Christmas tree inside the flat. 8 The victims were understandably startled by the applicant's intrusion into their flat. The applicant said, "I'm looking for a present for my baby". The male victim told the applicant that he and his sister did not have any presents and he asked his sister to telephone the police. 9 The female victim dialled the police emergency number. The applicant, using crude language, told her to get off the 'phone and she, fearful of what the applicant might do, terminated the call. 10 The applicant approached the male victim and with his left hand grabbed hold of the young man by his hair. With his right hand the applicant punched the victim five or six times in the face. The applicant pulled the victim's head downwards and kneed the victim in the stomach several times. 11 The applicant then directed the male victim to "clean up" the flat. The victim, fearing that he would be assaulted further, got a bag and started picking things up off the floor of the flat. 12 When the male victim approached his sister the applicant told him to "get away from her or I'll shoot you in the groin and give you a pussy". These statements made by the applicant formed the basis of the additional offence of common assault committed against the male victim. The male victim said "Okay" and moved away from his sister. The applicant told the female victim "don't move or I'll shoot you too". This statement by the applicant formed the basis of the offence of common assault which was charged. 13 Neither the male victim nor the female victim in fact knew whether or not the applicant was armed. 14 The applicant said to the male victim, "put the bag down. I love you guys and wouldn't do anything to hurt you". The male victim then stopped picking up things. 15 The applicant told the female victim to follow him outside the flat. The male victim, fearing a further assault, told his sister to comply. The applicant walked outside the flat, followed by the female victim. 16 A conversation took place near the doorway to the flat between the applicant and the female victim. The applicant asked her about the telephone call she had started to make. She said that she had telephoned a friend. She asked the applicant whether she could go. The applicant said that she could. The applicant said that his name was "Phil" and he asked her what her name was. She told him her name. The applicant extended his hand towards her and she shook his hand, fearing being assaulted if she did not do so. The applicant kissed the female victim on the cheek and told her that he loved her. She walked slowly away from the premises. Once she was out of sight of the applicant, she ran to the nearby home of a friend and the police were telephoned. 17 After the female victim had gone, the applicant turned to face the male victim, who was standing in the doorway to the flat. The applicant walked back into the flat. The applicant again grabbed the male victim by his hair and punched him about ten times to the face with a closed right fist. The applicant forced the victim's head down and tried to knee the victim in the face but this time the victim was able to block the applicant's attempts. 18 The applicant started yelling and screaming that the victim did not belong in the premises and should not be there. The applicant demanded that the victim "sign it". The victim, not knowing what the applicant meant, asked if he could get a pencil and the applicant let go of the victim. Shortly afterwards the applicant ran towards the victim but he tripped on a keyboard which was lying on the floor of the flat and fell. The applicant pulled himself up onto a chair and sat there for some time. The applicant then went into the kitchen and started opening a drawer. He said, "where is a knife so that I can stab you". 19 The victim ran from the flat to the home of a friend. 20 Police arrived in the area and spoke to the two victims. The police found the applicant lying down in a backyard. He was well affected by alcohol. The applicant gave police his correct name. He admitted to police having been inside the flat. He said, "I'm looking for my sister. She lives here". 21 The male victim told police that during the incident the applicant had appeared to him to be "really drunk". The female victim told police that the applicant had been "very drunk". 22 As a result of the physical assaults the male victim suffered "several red marks to the left and right side of his face, as well as swelling and soreness to the left side of his face and head". The female victim told police that for most of the time the applicant was in the flat, she had remained sitting on a chair, frozen with fear. 23 In her remarks on sentence the sentencing judge commented on the level of objective seriousness of the offences. Her Honour noted that the applicant had intruded into the home of the victims and then assaulted them. He had struck the male victim a number of times. Aggravating factors were the threats by the applicant to use a firearm and the threat to use a knife. 24 Her Honour accepted that the applicant had been very drunk and that the applicant's offending had not been planned or organised criminal behaviour. However, her Honour considered that the applicant's drunkenness could have led to the victims experiencing increased fear. 25 Her Honour made findings that the breaking committed by the applicant was "at the lower end of the scale" and that the actual bodily harm inflicted on the male victim was also "at the lower end of the scale". 26 In her remarks on sentence her Honour referred to some of the subjective features of the applicant. He was born on 10 April 1973 and was accordingly thirty-two years old at the time he committed the offences. He was an Aboriginal man in a de facto relationship. 27 Her Honour said that she accepted "that there are Fernando considerations in this case" (R v Fernando (1992) 76 A Crim R 58). Some of these considerations were that the applicant's mother had died of alcohol abuse when he was young, the applicant himself had been drinking alcohol since he was thirteen years old, the applicant had a very serious and long-term addiction to alcohol and as a consequence of his addiction to alcohol he had serious health problems, including liver disease and thrombocytopenia. 28 Her Honour remarked that, although the applicant had a criminal history, it was not one which in her view disentitled the applicant completely to any leniency. She had formed that view, because in the four and a half years which had elapsed between the applicant last being released from custody and the commission of the offences, the applicant had not been charged with any offence, apart from two contraventions of an apprehended domestic violence order, for one of which he had been placed on a bond and for the other of which he had been fined a small amount. Her Honour commented that, compared with some other offenders who had come before the court in that country town, the amount of time the applicant had spent in prison "was not extensive". 29 Her Honour considered it extremely difficult to make a finding on the applicant's prospects of rehabilitation, because the applicant's prospects of rehabilitation were so dependent on the applicant being able to control his use of alcohol. However, she was prepared to find that there were some very limited prospects of rehabilitation. Her Honour discerned some evidence in a pre-sentence report of the applicant having some insight into his condition. 30 Her Honour allowed a discount of 25 per cent for the utilitarian value of the applicant's pleas of guilty. The applicant had not pleaded guilty until after committal proceedings had been held. However, after the committal proceedings had been held, a charge of a more serious offence, which was an offence of specific intent, had been abandoned by the Crown, in the light of the evidence about the applicant's state of intoxication on 20 December 2005, and her Honour accepted that the applicant had always been prepared to plead guilty to the lesser charges which were ultimately pursued by the Crown. 31 Her Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act and made a recommendation that the Probation and Parole Board make it a condition of any grant of parole that the applicant attend a residential rehabilitation programme. 32 The only ground of appeal against sentence was that the sentences, and particularly the sentence for the first offence of breaking and entering and committing a serious indictable offence, were manifestly excessive. 33 In her submissions counsel for the applicant referred to some of the findings the sentencing judge had made about the objective facts of the offences, to the applicant's state of intoxication at the time of committing the offences, to the applicant's background and its bearing on the commission of the offences, to the applicant's state of health and to statistics kept by the Judicial Commission which, it was submitted, showed that the sentence the sentencing judge would have imposed, but for the plea of guilty, would have been an unusually high sentence. 34 Counsel for the Crown submitted that there were two offences and two victims, that the offences involved the actual use of physical force and a threat to use weapons, that the sentencing judge had taken into account the applicant's background and the sentencing decision of Wood J in Fernando and that caution had to be exercised in using the statistics of sentences kept by the Judicial Commission. 35 There were, undoubtedly, some serious features of the offences for which the applicant was sentenced, including the invasion of the victims' home, that there were two victims and that the male victim was struck a number of times. Contrary to a submission made by counsel for the applicant, the sentencing judge was entitled to take into account, in sentencing for each victim, the threat which had been made to shoot that victim and, in sentencing the male victim, the threat to stab him with a knife. 36 However, the sentencing judge did find some mitigating factors, including that both the breaking in and the injuries suffered by the male victim were "at the lower end". 37 It is clear from the evidence, both the evidence of observations of the applicant and the evidence about the actions of the applicant, that the applicant was highly intoxicated at the time of committing the offences. 38 The fact that an offender was intoxicated at the time of committing an offence is not of itself a reason for mitigating the sentence which should be imposed on the offender. However, the fact that an offender was intoxicated at the time of committing the offence may be taken into account as mitigating the objective criminality of the offence, insofar as it indicates that the offence was impulsive and unplanned and that the offender's capacity to exercise judgment was impaired. See R v Henry (1999) 46 NSWLR 346 per Wood CJ at CL at 397-398 (273). In the present case, it is clear that, by reason of his state of intoxication, the applicant's conduct was impulsive and unplanned and his capacity to exercise judgment was seriously impaired. 39 It was appropriate for the sentencing judge to refer to Fernando. The present case exhibited many of the features listed by Wood J in Fernando, including the applicant's deprived background, his early introduction to alcohol and longstanding abuse of it, that he was substantially disinhibited by alcohol at the time of committing the offences, his early plea of guilty and that his criminal record displayed a significant period of freedom, or close to freedom, from criminality. Contrary to a submission made by the Crown, I would not regard the approach to sentencing Aboriginal offenders outlined in Fernando as being limited to Aborigines who live in isolated communities. 40 Counsel for the applicant referred to statistics kept by the Judicial Commission of sentences for the aggravated offence of breaking and entering and committing a serious indictable offence (s 112(2) of the Crimes Act). I am mindful of the numerous statements in the Court about the caution which should be exercised in applying such statistics. However, the statistics for sentences for the aggravated offence under s 112(2), of which there are a large number, do suggest that the sentence which the sentencing judge would have imposed, but for the plea of guilty, of five years nine months would have been a high sentence. 41 I have come to the conclusion, after taking into account all the objective facts of the offences and the subjective features (apart from the plea of guilty) that a head sentence of five years nine months, if there had been no plea of guilty, would have been a manifestly excessive sentence and that, consequently, leave to appeal against sentence should be granted and the appeal against sentence should be allowed. 42 In sentencing the applicant for the first offence I would adopt a starting point, before allowing for the plea of guilty, of four and a half years. I would allow a discount of 25 per cent, which would produce, with some rounding off, a sentence of three years four months; I would find special circumstances, as the sentencing judge did; and I would divide the sentence into a non-parole period and a balance of the term in approximately the same proportions as the sentencing judge did, producing a non-parole period of two years and a balance of the term of one year four months. 43 I would retain the same sentence for the second offence and, as the sentencing judge did, I would make the sentence for the second offence fully concurrent with part of the non-parole period of the sentence for the first offence. 44 I consider that the following orders should be made:- Leave to appeal against sentence granted. Appeal against sentence allowed. Sentence for offence of breaking and entering and committing a serious indictable offence quashed. In lieu thereof, set a non-parole period of two years commencing on 20 December 2005 and expiring on 19 December 2007 with a balance of the term of one year four months commencing on 20 December 2007 and expiring on 19 April 2008. Confirm the sentence of a fixed term of eleven months for the offence of common assault. The earliest date on which the applicant will be eligible for release on parole will be 19 December 2007. 45 HISLOP J: I agree with James J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.