New South Wales Court of Criminal Appeal CITATION: Widders v Regina [2007] NSWCCA 96 HEARING DATE(S): 26 March 2007 JUDGMENT DATE: 12 April 2007 JUDGMENT OF: Simpson J at 1; Howie J at 2; Hislop J at 3 DECISION: 1. Grant leave to appeal; 2. Allow the appeal as to counts 1 and 2; 3. Quash the sentence as to count 1 and in lieu thereof sentence the applicant to imprisonment for a fixed term of 2 years and 6 months to commence on 28 January 2006 and expire on 27 July 2008; 4. Quash the sentence in respect of count 2 and in lieu thereof sentence the applicant to imprisonment for a fixed term of 1 year and 9 months to commence on 28 April 2008 and expire on 27 January 2010; 5. Confirm the sentence on count 3 of imprisonment for a non parole period of 6 months to commence on 28 January 2010 and expire on 27 July 2010 with the balance of term of 18 months to expire on 27 January 2012. The earliest date on which the applicant will be eligible for release to parole is 27 July 2010. CATCHWORDS: Criminal law - Sentence - Ratio of sentence to maximum term of imprisonment - Effective overall sentence. Crimes Act 1900 - ss 35(1)(a), 59(1) LEGISLATION CITED: Crimes (Sentencing Procedure) Act - s 44(1) Criminal Appeal Act 1912 - s 6(3) Pearce v R (1998) 194 CLR 610 R v Dickinson [2005] NSWCCA 284 CASES CITED: R v Romano [2004] NSWCCA 380 R v Simpson (2001) 53 NSWLR 704 R v Zreika [2003] NSWCCA 47 Thomas (1993) 65 A Crim R 269 PARTIES: Applicant - Jamie Scott Widders Respondent - Regina FILE NUMBER(S): CCA 2006/2913 COUNSEL: Applicant - Mr C.B. Craigie SC Respondent - Ms V. Lydiard SOLICITORS: Applicant - Aboriginal Legal Service Respondent - Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/31/0126 LOWER COURT JUDICIAL OFFICER: Bell DCJ LOWER COURT DATE OF DECISION: 8 June 2006 - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/2913 SIMPSON J HOWIE J HISLOP J 12 April 2007 Jamie Scott WIDDERS v REGINA Judgment 1 SIMPSON J: I agree with Hislop J. 2 HOWIE J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty to the following charges: Count 1 - Malicious wounding contrary to the Crimes Act 1900 s 35(1)(a). Count 2 - Assault occasioning actual bodily harm contrary to the Crimes Act 1900 s 59(1). Count 3 - Assault occasioning actual bodily harm contrary to the Crimes Act 1900 s 59(1). The maximum penalty for malicious wounding is 7 years imprisonment. The maximum penalty for assault occasioning actual bodily harm is 5 years imprisonment. 4 On 8 June 2006 the applicant was sentenced for those offences in the District Court as follows: Count 1 - Imprisonment for a fixed term of 3 years to commence on 28 January 2006 and expire on 27 January 2009; Count 2 - Imprisonment for a fixed term of 2 years and 3 months to commence on 28 January 2008 and expire on 27 April 2010; Count 3 - Imprisonment for a non-parole period of 6 months to commence on 28 January 2010 and expire on 27 July 2010 with the balance of the term, 18 months, to expire on 27 January 2012. The effective overall sentence is 6 years imprisonment with a non-parole period of 4 years and 6 months. 5 The victim of each of the offences was Ms Chatfield who at the time of the first offence was 27 years of age and had been living with the applicant for approximately 12 months. The applicant was born on 13 September 1976 and was of aboriginal heritage. 6 The facts constituting each offence, as found by the sentencing judge, were as follows: Count 1 - The applicant and Ms Chatfield attended a party during the afternoon of 26 August 2005. Both consumed alcohol and the applicant admitted to also having had a couple of cones of marijuana. After leaving the party Ms Chatfield and the applicant were walking home when an argument developed. Ms Chatfield was ahead of the applicant who was demanding to know who she was "hanging around for". He produced a knife with a blade 10 to 15 centimetres long, ran toward Ms Chatfield and stabbed her in the back with it. She sustained a wound some 3 centimetres long and 1 centimetre deep, which later required 6 stitches at Tamworth Base Hospital. The applicant was arrested and charged. He was held, bail refused, until released on bail on 17 October 2005. On 13 February 2006 his bail conditions were changed to include a condition that he was not to contact or approach Ms Chatfield. Count 2 - On 11 March 2006 Ms Chatfield was walking in a park when she was approached from behind by the applicant who struck her on the head with a stick measuring some 1 to 1.5 metres long. The attack was unprovoked. Ms Chatfield sustained lacerations to the back of her head, the larger laceration was 7 centimetres long and required 5 stitches, the smaller one was 3 centimetres long and required two stitches. Count 3 - On the afternoon of 18 March 2006 the applicant went to Ms Chatfield's house and an argument took place. The applicant then kicked Ms Chatfield a number of times and she attempted to go outside the house. He grabbed her by the hair and pulled her back inside and again kicked her a number of times. She was able to escape and the police were called. The extent of the bruising to Ms Chatfield's face is readily discernible in two photographs which were exhibited at the sentencing hearing. 7 The applicant has sought leave to appeal against sentence on the grounds that: (1) The fixed terms for count 1 (malicious wounding) and count 2 (assault occasioning actual bodily harm) are manifestly excessive. (2) His Honour erred in failing properly to apply principles relating to totality in sentencing for multiple counts. (3) His Honour erred in limiting a finding of special circumstances only to the consideration of maintaining a seventy-five percent ratio between the total non-parole period and the effective head sentence. (4) The overall sentences are manifestly excessive, in particular as to the effective non-parole period. Ground One - The fixed terms for count 1 (malicious wounding) and count 2 (assault occasioning actual bodily harm) are manifestly excessive. 8 It was submitted for the applicant: (a) that the fixed terms of 3 years (Count 1) and 2 years 3 months (Count 2) were minimum terms as required by section 44(1) of the Crimes (Sentencing Procedure) Act 1999. The Crown accepted that this submission was correct (see in this regard Thomas (1993) 65 A Crim R 269, R v Zreika [2003] NSWCCA 47, R v Romano [2004] NSWCCA 380, and R v Dickinson [2005] NSWCCA 284). (b) his Honour's starting point, after allowing for a discount of 25% for the early pleas of guilty and a parole period corresponding with the statutory ratio must have been 5 years 4 months in respect of Count 1 and 4 years in respect of Count 2. (c) the maximum penalty for the Count 1 offence was imprisonment for 7 years and for the Count 2 offence, 5 years. (d) his Honour's starting point for sentencing on Counts 1 and 2, having regard to all of the circumstances, was disproportionate to the maximum penalties and demonstrated manifest excess. 9 In my opinion the sentences for counts 1 and 2 demonstrate a disproportion to the maximum penalties such as to demonstrate manifest excess. Accordingly I would uphold this ground of appeal. I would substitute fixed terms of 2 years and 6 months (count 1) and 1 year and 9 months (count 2) respectively. Having regard to my ultimate conclusion in this matter it is unnecessary to provide further reasons for this conclusion. Ground Two - His Honour erred in failing properly to apply principles relating to totality in sentencing for multiple counts. 10 His Honour, in quantifying sentence, first fixed an appropriate sentence for each of the offences. He then proceeded to consider questions of cumulation, concurrence and totality. This accorded with the principles in Pearce v R (1998) 194 CLR 610 [45]. I perceive no error of principle in his Honour's approach. Ground Three - His Honour erred in limiting a finding of special circumstances only to the consideration of maintaining a seventy-five percent ratio between the total non-parole period and the effective head sentence. 11 His Honour concluded that, to have proper regard to the overall degree of criminality involved, it was appropriate that the sentences should accumulate to 6 years. This rendered it necessary to readjust the non-parole period for count 3 to ensure the statutory non-parole/parole ratio was preserved. 12 His Honour did not otherwise make a finding as to special circumstances. It was submitted he erred in failing to make a specific finding as to whether the applicant's rehabilitation prospects gave rise to special circumstances meriting a further adjustment of the non-parole period. 13 Although his Honour did not otherwise make a specific finding as to special circumstances it is clear he did not regard the applicant's prospects of rehabilitation as justifying such a finding. In his remarks on sentence his Honour noted the applicant had had a chronic cannabis addiction since his teenage years. He had experimented with harder drugs and petrol. He had a problem with alcohol. His Honour said: … he committed offences in 2000 and 2001 including an 18 month sentence for armed with intent to commit an indictable offence. His parole was conditioned to undertake drug and alcohol counselling. In 2003 he received a 22 month sentence suspended with bond conditions that he attend drug and alcohol and anger management counselling as required…Despite his assertion of growing maturity, Mr Widders failed attempt at rehabilitation with the Roy Thorne Centre in 2005 – resulting in a return to alcohol, drugs and violence – does not give this Court any confidence that this control is developing. Having listened carefully to Mr Widders as he gave evidence, I am satisfied that he has no real insight into the seriousness of his violent behaviour and that any steps he has taken toward rehabilitation are more token than motivational. 14 It was well open to his Honour to make these findings and well within his discretion not to find special circumstances. I would reject this ground of appeal. Ground Four - The overall sentences are manifestly excessive, in particular as to the effective non-parole period. 15 Each of the subject offences was committed whilst the applicant was on conditional liberty. The objective seriousness of each of the offences was substantial. A weapon was involved in the first 2 offences. 16 The applicant, as his Honour observed, is a repeat offender who has demonstrated low commitment to abandoning his violent conduct toward other persons. He has a lengthy criminal record extending from 1993. That record includes assault charges in relation to both citizens and police (12) and offences of malicious wounding, damage to property (5), stealing, larceny, receiving, break enter and steal, offensive conduct (3), driving while disqualified, midrange PCA and other miscellaneous matters. 17 In sentencing the applicant his Honour concluded that to have proper regard to the overall degree of criminality involved, it was appropriate that the sentences should accumulate to 6 years. His Honour stated: The community rightly condemns crimes of violence. Those who persist in such activities turning their backs upon offers of rehabilitation can expect to receive punishment that seriously takes into account the need for personal deterrence. For those who are tempted to also commit such crimes, the sentence should also provide general deterrence. …There is really little or nothing in the circumstance of the Applicant's ongoing criminal activity that provides much basis for leniency other than the discount for the pleas. 18 His Honour's findings were well open to him and the overall sentence imposed was within his sentencing discretion. In my opinion the effective overall sentence of a non parole period of 4 years and 6 months with a balance of term of 18 months is not manifestly excessive. I would not disturb the overall sentence. 19 Accordingly, whilst I would uphold the appeal in respect of the sentences imposed for counts 1 and 2 the overall result will remain the same. 20 I propose the following orders: 1. Grant leave to appeal; 2. Allow the appeal as to counts 1 and 2; 3. Quash the sentence as to count 1 and in lieu thereof sentence the applicant to imprisonment for a fixed term of 2 years and 6 months to commence on 28 January 2006 and expire on 27 July 2008; 4. Quash the sentence in respect of count 2 and in lieu thereof sentence the applicant to imprisonment for a fixed term of 1 year and 9 months to commence on 28 April 2008 and expire on 27 January 2010; 5. Confirm the sentence on count 3 of imprisonment for a non parole period of 6 months to commence on 28 January 2010 and expire on 27 July 2010 with the balance of term of 18 months to expire on 27 January 2012. The earliest date on which the applicant will be eligible for release to parole is 27 July 2010. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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