New South Wales Court of Criminal Appeal CITATION: Martin v R [2008] NSWCCA 225 HEARING DATE(S): 19 September 2008 JUDGMENT DATE: 2 October 2008 JUDGMENT OF: Giles JA at 1; Rothman J at 2; McCallum J at 8 DECISION: Leave to appeal granted, but appeal dismissed. CATCHWORDS: SENTENCING - malicious wounding - robbery in company - co-offender - partial accumulation - disparity - applicant's psychological condition LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Douglas v R [2006] NSWCCA 94 Johnson v R [2004] HCA 15 Lowe v R (1984) 154 CLR 606 McKenna v R [2007] NSWCCA 113 Mill v R (1998) 166 CLR 59 at 63 Pearce v R [1998] HCA 57 CASES CITED : Postiglione v R [1997] HCA 26 R v AN [2005] NSWCCA 239 R v Boney [2001] NSWCCA 342 R v Henry (1999) 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v Pham [2005] NSWCCA 314 R v Rushby [1999] NSWCCA 104 R v Wright (1997) 93 A Crim R 48 PARTIES: Chay Aric Martin (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/5678 COUNSEL: Mr G Brady (Applicant) Mr D Arnott SC (Respondent) SOLICITORS: Brenda Duchen (Applicant) S Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0144 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ LOWER COURT DATE OF DECISION: 7 December 2007 - 16 - IN THE COURT OF CRIMINAL APPEAL 2007/5678 GILES JA ROTHMAN J McCALLUM J 2 OCTOBER 2008 CHAY ARIC MARTIN V R Judgment 1 GILES JA: I agree with McCallum J. 2 ROTHMAN J: I have had the opportunity of seeing in draft the reasons for judgment of McCallum J. I agree with the orders proposed by her Honour and generally with the reasons therefor. 3 Sentencing is not a science. It is an exercise of discretion that seeks to balance goals that are, at least in part, conflicting. Subject to compliance with the statutory regime and sentencing principles, and subject to any sentence imposed not being manifestly excessive (or inadequate), a sentencing judge must be given the flexibility to impose a sentence structured in the manner which the judge considers best reflects that balance: Johnson v R [2004] HCA 15; (2004) 78 ALJR 616. 4 Neither of the individual sentences imposed by her Honour below discloses error. Nor does the overall sentence imposed. 5 The appellant raises, inter alia, the issue of parity between the sentence imposed and the sentence imposed on his co-offender. As McCallum J notes, the co-offender was subject to a different sentencing regime: the Children (Criminal Proceedings) Act 1987. Of itself that would usually be sufficient to deny a justifiable sense of grievance. Equal justice requires that where circumstances (subjective and objective) are the same between co-offenders, they should receive the same treatment. Where circumstances are not the same, due discrimination should account for the differences: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; McKenna v R [2007] NSWCCA 113. 6 Where an offender is almost 18 years of age and the co-offender is just over 18 years of age, there can (and should) be an application of parity. That is because, even though different regimes apply, the two offenders are both of similar age and the offender over 18 years of age still has applied to him/her an exercise of discretion in which his/her youth is a most relevant factor: R v AN [2005] NSWCCA 239 at [53], [54] per Howie J, James and Rothman JJ agreeing. 7 In this matter, the age difference between the appellant and the co-offender is significant and, with the different applicable sentencing regimes, provides a justifiable basis for disparity. 8 McCALLUM J: On 17 July 2007 the applicant pleaded guilty to malicious wounding in company and to aggravated robbery. He was sentenced on 7 December 2007 to an aggregate sentence of 4 years with a total non-parole period of 2 years. The sentence imposed for the malicious wounding offence was a non-parole period of 1 year commencing on 26 October 2007 with an additional term of 1 year. The sentence for the aggravated robbery was a non-parole period of 1 year commencing on 26 October 2008 with an additional term of 2 years. 9 The structure of the sentence was accordingly that the non-parole periods were to be served consecutively, and the only terms to be served concurrently were the additional term for the first count and the non-parole period for the second count. The offences 10 Both offences were committed on 1 July 2006 in the early hours of the morning. The applicant and his co-accused, BD (a juvenile), had been drinking at a bar near Taylor Square in Sydney. They left shortly before 2 am and, together with three or four other males, set upon a man, Mr Carney, while he was walking along a nearby street. Mr Carney was punched and kicked and left lying on the footpath. He suffered head injuries including severe bruising to both sides of the head, a broken nose and a black eye. He also suffered a laceration to one side of the head requiring eleven stitches and a laceration to his lip requiring three stitches. 11 Mr Carney has no recollection of the assault or the events of the following two days. In a victim impact statement tendered at the sentence hearing, he complained of on-going effects of his injuries including feeling aggressive when frustrated, being nervous around people and finding it hard to walk alone at night. 12 About fifteen minutes after assaulting Mr Carney, the applicant and BD returned to the bar at which they had been drinking earlier in the evening, where they stayed until about 3.30 am. Shortly before 4 am, the applicant, together with BD and another male, approached three men walking through Hyde Park. One of the members of the applicant's group punched one of the men, who started to run away with his companions. The applicant and BD chased them and caught Mr Rudd. The applicant held Mr Rudd on the ground from behind with his arm around Mr Rudd's throat. While the applicant was holding Mr Rudd, BD kicked and punched him around the head and upper body. 13 The co-accused, BD then began to search Mr Rudd's pockets. At that stage, the applicant released Mr Rudd and ran off. He did not take anything from Mr Rudd. At some stage, either before or after the applicant left, the co-accused took Mr Rudd's wallet and a digital camera. 14 Mr Rudd suffered small lacerations and bruising to the face and body. In his victim impact statement, he said that he also suffered from a fractured jaw. However, it is unclear whether that diagnosis was confirmed by x-ray. Mr Rudd said that he now thinks twice about walking home at night and does not feel safe walking in the city after dark. Remarks on Sentence 15 The non-parole period was half the term of the sentence: cf s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The judge found special circumstances in the fact that it was the applicant's first custodial sentence, the likely effect of his psychological condition on his coping in custody and his need for a long period on parole to continue his rehabilitation. Her Honour reflected the utilitarian value of the plea, which was entered on the date for trial, in a discount of 15%. The sentence was backdated to commence on 26 October 2007 to take account of 6 weeks of pre-sentence custody. 16 The judge sentenced the co-offender, BD, for the malicious wounding at the same time. He was 16 at the time of the offence and her Honour decided to deal with him pursuant to the provisions of the Children (Criminal Proceedings) Act 1987 rather than according to law. He was sentenced to a control order of 12 months, wholly suspended upon his entering into a bond with conditions. 17 The co-offender had been dealt with for the aggravated robbery by a Children's Court Magistrate in April 2007. In respect of that offence, he was released without conviction upon his entering into a good behaviour bond. 18 The judge noted that the applicant was 23 at the time of the offences. Her Honour recorded the deprivations he suffered due to his parents' adherence to the doctrines of the Jehovah's Witnesses, which had entailed a level of social isolation and had required him to go door-knocking with his parents. Her Honour accepted that, as a result of those matters, the applicant felt excluded and humiliated at school. He had also suffered physical abuse at the hands of his father. 19 Evidence was adduced on sentence that the applicant had a history of depression, low self-esteem and insomnia for which he had sought medical help from the age of 18. There was evidence from two general practitioners who had counselled the applicant and prescribed him various anti-depressant medication. There was also evidence from a psychologist, Dr Lennings, who concluded that the applicant experienced a severe degree of psychological abuse as a child and as a result had developed "a conflict-ridden personality with remaining significant psychopathology". The psychologist's evidence was that the applicant's psychopathology and personality disturbance appeared "directly contributory to the offence". The judge accepted Dr Lennings' opinion and accepted that the psychological condition he described contributed to the applicant's offences. 20 The judge rejected a submission on behalf of the applicant that, notwithstanding the fact that the aggravated robbery offence fell broadly within the guideline judgment in R v Henry (1999) 46 NSWLR 346, there were exceptional circumstances such as to warrant his not being sentenced to a full-time custodial sentence. In particular, her Honour rejected the submission that the robbery was at the bottom of the scale of objective seriousness. Her Honour found that, in holding Mr Rudd down whilst the co-offender kicked and punched him, the applicant had participated in callous violence to another human being. Her Honour held that the offence was not at the upper end of the scale of seriousness but was not at the bottom end of the range of offences of that type. 21 In respect of the charge of malicious wounding, her Honour also held that the offence was not at the bottom of the range of seriousness. Her Honour said: "It was a random, unprovoked, alcohol-fuelled attack on a man going about his own life and expecting to do so in peace". 22 Her Honour concluded that the circumstances of the offences and the applicant's subjective circumstances did not amount to exceptional circumstances such as to warrant a suspended sentence or a sentence of periodic detention, and that the only appropriate sentences were full-time custodial sentences. Partially accumulated sentences 23 The applicant seeks leave to appeal against the sentences imposed. The first ground of appeal is: "The Learned Sentencing Judge erred in determining that the sentences for the count of malicious wounding and the count of aggravated robbery should be wholly cumulative". 24 The judge said: "I have fixed and partially accumulated sentences, so that the total effective sentence is applicable to the total criminality of Mr Martin's offences". 25 The thrust of the applicant's principal argument was that those remarks must be taken to refer to partial accumulation of the non-parole periods (implying partial concurrence of those periods) because it is meaningless to speak of accumulation in the context of "head sentences". The applicant submitted that head sentences (which I understood as a reference to the full term of a sentence that has a non-parole period) cannot sensibly be imposed to be served consecutively because that would entail the prisoner's being released to parole for the additional term of the first sentence and then returned to prison to serve the non-parole period of the second sentence. 26 The applicant's complaint is that, contrary to the intention reflected in the remarks on sentence, the judge in fact imposed sentences with wholly cumulative non-parole periods. 27 In my view, there are two difficulties with that argument. First, it assumes that concurrency between an additional term for one sentence and a non-parole period for another is not capable of reflecting an appropriate reduction in sentence where there are relevant similarities between the offences. That in turn assumes, wrongly in my view, that the only punitive aspect of a sentence is its non-parole period. 28 A prisoner is not released to parole as of right at the end of the non-parole period. Even when he is released, his liberty is conditional until the end of the term of the sentence. I can understand, from a prisoner's perspective, the perception that the non-parole period is the burden of the sentence imposed but it is a misconception to treat the balance of term as being necessarily irrelevant to questions of concurrency. 29 In my view, it is open to a sentencing judge in an appropriate case to reflect relevant similarities between offences by permitting a non-parole period to be served concurrently with the balance of term of a sentence commenced earlier. Whether that approach will adequately reflect the appropriate reduction will turn on the circumstances of the individual case. 30 The second difficulty with the applicant's argument is that it assumes the sentencing judge sought to achieve the relevant reduction by first fixing the appropriate sentences and then partially accumulating them. However, it is possible that her Honour took the alternative path of "lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed": Mill v R (1998) 166 CLR 59 at 63. There is no inconsistency between that approach and the principles stated in the joint judgment in Pearce v R [1998] HCA 57; (1998) 194 CLR 610: see Johnson v R [2004] HCA 15; (2004) 205 ALR 346. 31 The judge's remarks are consistent with her having adopted that approach, and it is not unlikely that she did, having regard to the individual sentences imposed, which must be regarded as relatively lenient in the circumstances. 32 The applicant also submitted that the judge 'did not properly assess whether the two offences should have an element of concurrency about them'. He said that the offences involved the same co-accused, they occurred on the same night, although some hours apart, they were 'effectively within the same area', they were 'effectively the same type of offending behaviour' although the robbery was more serious, and they were both contributed to by the applicant's psychological condition; those common features meant that the non-parole periods should have been at least partly accumulated. It is plain that the judge turned her mind to the matter. There were in my view sound reasons for regarding the offences as separate acts of criminality for which that accumulation would not provide proper punishment, and the course taken by the judge was well open to her. Disparity 33 The second ground of appeal is: "The Learned Sentencing Judge erred in that she sentenced the appellant to a markedly more excessive sentence when compared to his co-offender such that, even given due allowance for their differing antecedents, personal circumstances and mitigating factors, it gives rise to a justifiable sentence (sic) of grievance." 34 The applicant noted that each offender committed the same offences and neither had prior convictions. He submitted that, whilst he is older than BD, he is still a young man. 35 The applicant submitted that BD's role was objectively more serious than his and that his own moral culpability was reduced by reason of his psychological condition. As to the subjective circumstances of each offender, it was submitted that, aside from youth, the circumstances of BD were not more favourable than those of the applicant. 36 The Crown referred to a number of other differences between the two offenders but I do not think that they are of any great significance. The critical question is whether the difference in age between the two offenders and the fact that BD was sentenced under a different sentencing regime were factors that warranted the different sentences imposed, such that there could not be a justifiable sense of grievance. The Crown submitted that they were, citing Douglas v R [2006] NSWCCA 94 at [16] where this Court held that an age difference of 4 years was on its own a feature capable of distinguishing the applicant from his co-offender. 37 In Douglas the Court relied on the decision in R v Rushby [1999] NSWCCA 104 where it was held that a difference of 2 years and 7 months was "large and significant" and correctly regarded by the sentencing judge as a basis for distinguishing between the co-offenders. The co-offender was 16 when they raped a girl aged 13. Each offender had been sentenced to a term of imprisonment but the applicant had received a minimum term that was 40% greater and a total term 25% greater than the terms imposed on the co-offender. 38 The difference in sentences in the present case is greater. In respect of the armed robbery I accept that, even allowing for the differences in age and the different sentencing objectives applicable in the sentencing of BD, there is a measure of disproportion between the sentences imposed on each offender. However, as explained in R v Boney [2001] NSWCCA 342, two further sentencing principles arise for consideration in such a case. First, where there is a degree of disparity such as to invite a reduction in the sentence imposed, the Court need not do so if the result would be to produce a sentence disproportionate to the objective and subjective criminality involved. 39 Second, there is a point at which the inadequacy of the sentence imposed on the co-offender is so great that the sense of grievance can no longer be regarded as a justifiable one in the relevant sense (as explained in Lowe v R (1984) 154 CLR 606 and Postiglione v R (1997) 189 CLR 295). In Boney, Wood CJ at CL stated that, in such a case, the Court may exercise its discretion by declining to interfere "because it does not wish to duplicate what appears to have been gross error in the sentencing of the co-offender". 40 The judge appears to have had regard to the second principle in respect of the aggravated robbery sentence imposed on BD when her Honour said that the Magistrate's sentence did not provide a "proper guide" for her to follow: see ROS 18.3. In my view that was a correct approach. 41 In respect of the malicious wounding, the co-offender received a control order for 12 months, wholly suspended. That is a more severe sentence than release without conviction. It had the effect that the co-offender's liberty was, for that year, conditional upon his complying with the terms of his bond. In my view, the different sentences imposed for the malicious wounding are adequately explained by reference to the age difference between the two offenders and the different regimes under which they were sentenced. 42 Further, the first principle referred to in Boney is also applicable. Even if the sentences could be regarded as disproportionate, the result of intervening would be to produce a sentence disproportionate to the objective and subjective criminality involved in the offence, which saw a man on his own set upon by a group against whom he could scarcely have protected himself. Participation in an assault that involves an attack to the head must, in my view, be regarded as particularly serious since it can so easily result in death or serious brain damage. Errors in fact finding 43 The third ground of appeal is: "The Learned Sentencing Judge erred in her fact finding task by failing to distinguish between the roles of the co-offenders and the evidence given and tested on oath by the appellant compared to the hearsay contentions of the co-offender". 44 In respect of the offence of malicious wounding, the judge said: "In the histories given to the authors of reports which were presented and in the presentation of their cases on sentence each offender sought to blame the other as the instigator. That obviously cannot be correct. I cannot say on the material before me who started the incident but I am not prepared to accept each blaming the other". 45 The applicant submitted that the judge fell into error in using the untested hearsay assertions of the co-offender to reject the applicant's version of the incident, which was supported by evidence given under oath. The hearsay contentions of BD were what was found in a psychological report tendered on his behalf. He did not give evidence. The applicant did give evidence. He did not give an account of the offences in his evidence in chief, but in cross-examination was taken to an account in a psychological report tendered on his behalf in which he put BD forward as the instigator. He was challenged as to some aspects of the account, and said that he was very drunk and didn't remember it fully. 46 I do not think it is correct to say that the judge used the hearsay evidence of the co-offender to reject the applicant's version of the incident. The judge was not bound to accept the applicant's version simply because it was given on oath. The weight of the evidence brought in through the cross-examination was well open to doubt. If, as appears to have been the case, her Honour was not satisfied on the balance of probabilities as to either offender that it was the other offender who instigated the offence, her Honour was correct to proceed as she did. It may have been an error to sentence the applicant on the basis that he was the instigator, but that is not the basis on which her Honour proceeded. 47 In respect of the aggravated robbery offence, the applicant's submission at the sentence hearing had been that his role was at the bottom end of the scale of objective seriousness because there was no preconcert, he did not take anything and he only held Mr Rudd down while BD went through his pockets. It was submitted that the sum of the applicant's culpability was that he did not withdraw once the co-offender commenced the robbery. 48 In respect of that submission, the judge said: "That submission perhaps gives insufficient weight to the principles of joint criminal enterprise" 49 The applicant submits on that basis that her Honour erred in failing to take into account on sentence the role of the offender. I do not think the judge did fail to take into account what the applicant actually did in the offence. In a later passage in her Honour's remarks on sentence not referred to in the applicant's submissions, her Honour referred to the fact that Mr Rudd was kicked and punched repeatedly about the head and upper body and said: "For Mr Martin to hold Mr Rudd down while [BD] kicked and punched and then robbed him is callous violence to another human being. It was not at the upper end of the scale of seriousness, but nor was it at the bottom end of the range of offences of this type". 50 Those remarks disclose that her Honour did take into account the role of the applicant in the aggravated robbery offence, but took a different view of that role from the view contended for in the submissions. The applicant's psychological condition 51 Ground 4 is: "The Learned Sentencing Judge erred in failing to give sufficient weight to the psychological condition of the appellant and, in particular, its effect on a. The appellant's moral culpability b. The role of general deterrence in the sentencing exercise c. The role of specific deterrence in the sentencing exercise." 52 The applicant acknowledged that ground 4 did not reflect his principal complaint, which was that her Honour applied the wrong test. At the outset of the hearing of the appeal, the Court granted leave to the applicant to rely on the following additional ground to reflect that complaint: "The Learned Sentencing Judge applied the wrong test to determine whether the appellant's psychological condition reduced the appellant's moral culpability and the objective seriousness of the offending behaviour." 53 The complaint was based on what the judge said at 17.4 (emphasis added): "There is no evidence Mr Martin's psychological condition prevented him from understanding the wrongfulness of his actions". 54 The applicant submitted that the test propounded by the judge in that passage was effectively one of avoiding criminal responsibility, not reducing moral culpability. 55 It may be accepted that the word "prevented" in her Honour's remarks evokes the test for mental illness amounting to an excuse at law, which is a different test. It is necessary, however, to consider her Honour's words in their context. The Crown pointed to the previous passage in the remarks on sentence where the judge said: " I accept Mr Martin has the condition which Dr Lennings has diagnosed. I accept that it has contributed to the offences. However his anger, resentment, depression, identification with the skinhead culture and attitudes in reaction to his upbringing do not reduce his moral culpability in the way, or to the extent, of the illness, incapacity or disabilities in the cases to which I was referred, R v Israel [2002] NSWCCA 255, Rv Fahda (1999) NSWCCA 267 and the cases cited therein, or R v Wellings [2005] NSWCCA 318". 56 That passage discloses that, contrary to the applicant's submission, her Honour did turn her mind to the extent to which the applicant's psychological condition reduced his moral culpability for the offences so as to warrant a reduction in the appropriate punishment: cf R v Pham [2005] NSWCCA 314 per Hall J at [35]; R v Israil [2002] NSWCCA 255 at [23] per Spigelman CJ. In that context, in my view, it is clear that her Honour did not misapprehend the relevant test and, by 'prevented', meant so affected his understanding of the wrongfulness of his actions as to reduce his moral culpability. 57 The second complaint was that the judge failed at all to consider the question whether the applicant's psychological condition moderated the considerations of general deterrence. 58 The applicant did not press that argument in oral submissions. The Crown noted that the judge did refer, in terms, to the relevant principles including the principle that psychological condition may make an offender an inappropriate vehicle for general deterrence. Her Honour did so in the context of recording the submissions put by the applicant as to why there were exceptional circumstances for not imposing a full time custodial sentence, notwithstanding the apparent applicability of the Henry guideline judgment, but nonetheless it is apparent that her Honour was aware of the relevant principle. 59 As noted by the Crown, the judge's discussion of the applicant's psychological condition disclosed that, while she accepted that it had contributed to the offences, her Honour did not regard it as a matter that warranted a significant degree of moderation of the principle of general deterrence: cf R v Wright (1997) 93 A Crim R 48 at (50-51) per Hunt CJ at CL. The cases to which her Honour referred by way of comparison support that conclusion. This was not a case of severe mental illness. Her Honour gave careful consideration to the extent to which the psychological condition contributed to the offences, and concluded that it did contribute but not to any great degree. 60 The third complaint was that it was contrary to the evidence for her Honour to conclude (at ROS 17.5): "The evidence does not show that Mr Martin's psychological condition is such as to make specific deterrence more difficult to achieve, as per R v Israel (sic) at para 25, to which I was referred". 61 The applicant submitted that her Honour's remarks were contrary to the evidence of Dr Lennings accepted by her Honour. Dr Lennings said that the applicant was likely, if jailed for a lengthy period, "to fall back into adopting a pessimistic and aggressive demeanour if only to survive". Her Honour specifically accepted that would probably retard his psychological rehabilitation. 62 The point in R v Israil [2002] NSWCCA 255 at [25] was that an offender's mental illness may mean that, because the mental illness may make the deterrence more difficult to achieve, personal deterrence is entitled to less weight in the sentencing exercise than would otherwise have been the case. That gaol for a lengthy period might be adverse to psychological rehabilitation does not mean that specific deterrence might be more difficult to achieve, and Dr Lennings did not say that it would. In any event, Dr Lennings did not say what he meant by a lengthy period. 63 The remarks on sentence disclose that her Honour carefully weighed the evidence as to the applicant's psychological condition and appropriately took that evidence into account, giving it the weight she thought it deserved. I do not think that any error has been demonstrated. 64 The application has raised substantial issues that warranted the consideration of this Court. Accordingly, the orders I propose are that leave to appeal be granted but that the appeal be dismissed. ********** 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.