Reported Decision: 184 A Crim R 565 New South Wales Court of Criminal Appeal CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v LOMBARD [2008] NSWCCA 110 HEARING DATE(S): 23 April 2008 JUDGMENT DATE: 27 May 2008 JUDGMENT OF: Basten JA at 1; Barr J at 35; Buddin J at 36 DECISION: Appeal dismissed. CATCHWORDS: CRIMINAL LAW – requirements for an appeal by Director of Public Prosecutions – specification of grounds of appeal – Criminal Appeal Act 1912 (NSW) s 5D(1) – Criminal Appeal Rules (NSW) r 23E - SENTENCING – discounts – advantages and risks of arithmetical deduction –mitigating factors – contrition and remorse – weaknesses in Crown case – Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3) - SENTENCING – manifest inadequacy – tailoring the length of a sentence to permit a favoured order – reliability of cases with "similar sentences" Crimes Act 1900 (NSW), s 33 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 21A Criminal Appeal Act 1912 (NSW), s 5D(1) Criminal Appeal Rules (NSW), rr 23C, 23E CATEGORY: Principal judgment Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mulato v Regina [2006] NSWCCA 282 CASES CITED : R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 Regina v Deng [2007] NSWCCA 216 Regina v Dickinson [2004] NSWCCA 457 Regina v Zamagias [2002] NSWCCA 17 PARTIES: Director of Public Prosecutions (NSW) (Appellant) Daniel Lombard (Respondent) FILE NUMBER(S): CCA 2007/15906 COUNSEL: J Dwyer (Appellant) G A Farmer (Respondent) SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Appellant) C H Watson (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 07/11/0504 LOWER COURT JUDICIAL OFFICER: Tupman DCJ LOWER COURT DATE OF DECISION: 1 February 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CCA 2007/15906 DC 07/11/0504 BASTEN JA BARR J BUDDIN J 27 May 2008 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v LOMBARD Headnote On 1 October 2006, the respondent, Mr Lombard, stabbed a security guard in the neck outside a nightclub following an earlier altercation between the two, in which the respondent had suffered facial injuries. The respondent was charged with maliciously wounding the security guard with intent to do grievous bodily harm, under s 33 of the Crimes Act 1900 (NSW). On 1 February 2008, the respondent appeared before Tupman DCJ in the District Court at Sydney on a plea of guilty. He was sentenced to 3 years imprisonment with a non-parole period of 2 years to be served by way of periodic detention. Her Honour permitted a discount of 1/3 from what would otherwise have been the appropriate sentence (a discount of 20% for the guilty plea and a further discount of 13.3% for contrition and remorse and a weak Crown case on the element of intent). On 13 February 2008, the Director of Public Prosecutions filed a notice of appeal, challenging the sentence as manifestly inadequate. The issues for determination on appeal were: (i) whether the additional discount of 13.3% was excessive or involved double counting of mitigation factors in sentencing; (ii) whether the sentence was manifestly inadequate; and (iii) if so, whether the Court should intervene. The Court held, dismissing the appeal: In relation to (i) (per Basten JA, Barr and Buddin JJ agreeing) 1. The suggestion that there is necessarily error in identifying a proportionate discount for factors other than the utilitarian value of a plea is to adopt an overly mechanical rule: [22]. 2. Whilst potentially being transparent, the provision of an arithmetical deduction for mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) may be misleading and may result in "double counting": [22]–[23]. R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159, considered. Markarian v The Queen [2005] HCA 25; 228 CLR 357, referred to. 3. Since it was accepted as a fact that the respondent's guilty plea warranted a finding of remorse and contrition and this was enhanced by the weak Crown case on intent, a degree of alteration of the sentence was justified. Moreover, it was not demonstrated that the 13.3% additional discount was erroneous because it involved "double counting" or took the sentence outside the appropriate range: [23]. In relation to (ii) (Basten JA, Barr and Buddin JJ agreeing) 4. It is inappropriate to "tailor" sentences so that they can be served by way of periodic detention. Independently of the assertion of manifest inadequacy, there was no basis for suggesting that course had been taken: [25]. Regina v Zamagias [2002] NSWCCA 17, referred to. 5. An assessment of whether the sentence imposed was manifestly inadequate must be made in light of her Honour's findings, which the Director did not challenge: [31]. 6. The sentencing judge is responsible for characterising the objective seriousness of an offence. The Court of Appeal is slow to set aside that assessment or independently determine such matters, and should only consider whether the primary judge's characterisation of the circumstances was open: [31]. Mulato v Regina [2006] NSWCCA 282, followed. Regina v Deng [2007] NSWCCA 216; Regina v Dickinson [2004] NSWCCA 457, considered. 7. Given the findings as to the circumstances of the offence, the sentence was not manifestly inadequate: [33]. (Issue (iii) did not require to be addressed.) IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CCA 2007/15906 DC 07/11/0504 BASTEN JA BARR J BUDDIN J 27 May 2008 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v LOMBARD Judgment 1 BASTEN JA: In the early hours of 1 October 2006, the respondent was involved in an altercation with a security guard outside a nightclub in Kings Cross. He took out a knife, with which he stabbed the guard in the neck. He was subsequently charged with maliciously wounding the guard with intent to do grievous bodily harm, under s 33 of the Crimes Act 1900 (NSW). On 1 February 2008, he appeared before Tupman DCJ in the District Court at Sydney on a plea of guilty and was sentenced to 3 years imprisonment, with a non-parole period of 2 years to be served by way of periodic detention. On 13 February 2008, the Director filed a notice of appeal, challenging the sentence as manifestly inadequate. Basis of challenge 2 The right of appeal is conferred on the Director by s 5D(1) of the Criminal Appeal Act 1912 (NSW). The Criminal Appeal Rules require that where an offender seeks to appeal against conviction or seeks leave to appeal against sentence, the notice of appeal must be accompanied by a statement of the grounds for appeal and written submissions in support of the appeal: r 23C. No such requirements apply to an appeal by the Director under s 5D: r 23E. Nor is there any requirement that the Director file written submissions or serve them on the offender, within any specified period or at all. 3 It is common in practice for the Director to file a notice of appeal without any grounds being specified beyond a generic description such as "manifest inadequacy" and for the written submissions to follow sometime later, often without any precise identification of the grounds. In the present case, the notice of appeal was dated 13 February 2008, but the Director's written submissions were dated 22 March 2008. The submissions were 22 paragraphs in length, the first 15 paragraphs being devoted to setting out the background and the sentence. It was left to this Court to glean, as best it could, the basis of the appeal. 4 Where the gravamen of the challenge is that the resulting sentence is simply outside the permissible range, given the objective criminality found by the trial judge, and given the subjective circumstances of the offender, the ground may not be susceptible to more precise particularisation. On the other hand, where some specific complaint is made about the sentencing process or the judgment, that should be particularised and the respondent should be given early notice of the grounds to be relied upon. Failure to do so will ordinarily be a matter relevant to the exercise of discretion in determining whether to intervene. 5 In the present case, the submissions assayed two tasks. The first was merely to elaborate upon the proposition that the sentence was manifestly inadequate and failed to reflect the objective criminality of the offence. The second was directed specifically to the allowance of "an additional discount of approximately 13.3% for contrition and remorse, and a 'plea to an otherwise weak Crown case on the element of intent'". The additional discount appears to have been challenged in two ways: first, it was said to be excessive; secondly, it was said to be inappropriate to provide a "rolled-up discount … contrary to decisions of this Court [in] R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [41]-[42]". 6 No challenge was made, either in the written submissions or orally, to the findings of primary fact made by the sentencing judge, nor to the inferences drawn from those facts. Circumstances of offence 7 Before evaluating the challenges outlined above, it is convenient to set out some further background to the offence and to note the findings made by the sentencing judge and her Honour's reasons for adopting particular inferences in relation to the offender's conduct. 8 The relevant events of the night in question commenced when the respondent and at least one friend went to the Dragonfly nightclub in Earl Place, Kings Cross. They arrived at about 2.15am, having previously attended a party in the city, by which stage the respondent "had been drinking but was not intoxicated". The sentencing judge found that the respondent "gained entry either by jumping a queue or not paying or some similar event because they knew staff on the front door and had been there before". As a result, the respondent did not have a stamp on his hand which would permit re-entry if he left the club. In fact he did leave the club about 30 minutes after arriving to get some food. The respondent sought to leave by a rear door and asked the security guard to let him back in that way as he was only going to get some food. The guard, Mr Ademi, refused to allow him re-entry by the exit door and told him he would have to re-enter through the front door. Her Honour said that it was "not clear on the evidence" why Mr Ademi did this. However, there was no finding that it was an unreasonable direction. 9 The refusal aroused the respondent to annoyance and he called Mr Ademi an idiot. Mr Ademi "then reacted by grabbing [the respondent] on the arm and pulling him away from the door". Her Honour found that there was a "physical altercation between the two of them" which was joined by other security guards from adjoining premises on Darlinghurst Road. It would appear that the respondent was not an entirely passive party in the "altercation", but her Honour made no finding as to why other security guards became involved and assaulted the respondent. She accepted that he sustained facial injuries, including cuts, a bruise to his forehead and a broken nose. Her Honour concluded, however: "On the evidence before me, I accept that the only reason the victim and the other security officers acted in the way they did was because the prisoner himself had insulted the victim by calling him an idiot." 10 In several places in her judgment, her Honour commented on the culpability of the victim, Mr Ademi. She described his conduct on this occasion as "an unprofessional over-reaction to a fairly mild insult". She also described his conduct as "provocation" and, without wishing "to be blaming Mr Ademi, the victim of this offence, for its commission", treated his conduct as a circumstance of mitigation. She further equated his conduct to throwing petrol "on the flames of an over-heated young male" and stated that Mr Ademi "acted in a physically violent way, entirely unnecessarily". 11 The respondent lived approximately 20 metres away in Earl Place. After being beaten, her Honour said that he was "in a state of shock" and washed the blood from his face in the El Alamein Fountain and then went home. He changed his clothes, took a knife from the kitchen, placed it in his jeans pocket and returned to the nightclub. Her Honour stated: "Why he went back at all, let alone armed with a knife, is not clear on the evidence." 12 Referring to the record of interview taken by police, she noted that the respondent appeared to have some difficulty in English but concluded that he "could not even explain his behaviour to himself at that stage". 13 One inference open on the evidence was that the real explanation was less than entirely exculpatory and that, when interviewed in the early afternoon of the same day, it was possible that he was conscious of that fact. Nevertheless, her Honour rejected that available inference, stating: "The Crown submits that, in finding the circumstances of aggravation, I would make a finding that [the respondent] went back to the nightclub armed, with revenge on his mind – and that was the reason he armed himself with a knife – in order to confront the victim and those who had attacked him. To make such a finding would amount to a circumstance of aggravation, namely a premeditated planning of this offence. As such, such a finding would need to be made beyond reasonable doubt. I do not accept that this has been proved to that standard or at all." 14 Her Honour further stated that: "I accept that in going back, armed, he acted without considered thought, more or less spontaneously, in a state of shock after being beaten by the victim and the other bouncers when he first left the club. … I do not accept that he went with the intention of confronting the victim, and take into account in making that finding that he did not immediately go back to the rear door of the premises where he knew the victim would be, but rather entered the nightclub through the front door. He there met up with his friend Kevin Osifo who he had initially gone to the nightclub with." 15 Having found Mr Osifo, the respondent told him he had been assaulted by security guards and Mr Osifo noticed some injuries to his face. Mr Osifo noticed that he was agitated and decided to take the respondent home. He followed the respondent through the rear exit where the respondent again came into contact with Mr Ademi. Mr Osifo did not catch up with him, however, until other security guards were approaching, following the attack on Mr Ademi. Mr Osifo did not witness the attack which resulted in the charge. 16 Mr Ademi's statement was to the effect that he had sought to take the respondent from the club, whereas the respondent, in his statement to the police, suggested that he had found his friend, stayed in the club for a very short time, during which he invited his friend to go with him because "they smashed me", then left with his friend following, saw Mr Ademi, called him something like "cunt, bastard" and, when he saw Mr Ademi's angry face, pulled the knife out and stabbed him in the neck. 17 Her Honour did not accept that the respondent left by the rear exit "merely in anticipation of meeting up with Mr Ademi", but preferred the statement of Mr Osifo that it was his decision to take the respondent home. However, she did accept that when he saw Mr Ademi he behaved "like a wounded hothead", "went up to him and swore at him in retaliation for the beating he had suffered earlier". She accepted that the men started to wrestle, concluded that Mr Ademi "should have known how to quell the situation without yet another physical altercation" and found that the respondent did not have the knife in his hand at the time he swore at Mr Ademi. Once the fight had started, her Honour accepted that the respondent "believed at that stage that he needed to defend himself" and that "in doing so at that stage he pulled a knife out of his pocket and stabbed Mr Ademi in the neck and head area twice or perhaps possibly three times". 18 The "facts for sentence" prepared by the police recounted the event as follows: "Lombard led the way up the stairs to the rear exit on Darlinghurst Road. This is where he had encountered the victim Ademi earlier. The victim was still standing at the door working. Lombard said 'Look I am fucking did you cunt'. The victim and Lombard began wrestling. Lombard took the knife from his right pocket where he had concealed it and struck the victim twice to the back of the head and neck with the knife. The victim suffered two puncture wounds, one to the scalp and the other more serious wound to the left side of his neck. Ademi started throwing punches at Lombard on sighting the knife and being stabbed." 19 The statement recorded that in the course of the interview, the respondent had "indicated that he was angry about having his nose broken earlier and as a result getting blood on his watch and clothes" and that these "were the reasons he returned to the club with a knife and stabbed Ademi". 20 The trial judge made findings as to Mr Ademi's injuries in the following terms: "There is … no material before me … from which I could make any definitive finding one way or the other about the ongoing impact on the victim of these injuries, either physically or psychologically. I do accept however that, fortunately for Mr Ademi, the injuries do not appear to have been significant. There is nothing on the evidence before me from which I could make a finding that the severity of the injuries could amount to any circumstance of aggravation." Discount for additional factors 21 The respondent pleaded guilty to the charge in circumstances which permitted a discount on the otherwise appropriate sentence of 20%. There was no challenge to that finding. However, her Honour also found that there was "evidence of contrition and remorse over and above the entry of the plea of guilty". That conclusion was based on the fact that, in her Honour's view, it was "far from certain that the Crown would have been able to prove the necessary element of intent" if a trial had been required. So far as intent was concerned, her Honour expressed the view that it was "a relatively weak Crown case". It appears to have been on this basis that her Honour thought it appropriate to increase the discount because the plea evidenced something more than mere utilitarian value. 22 The suggestion that there is necessarily error in identifying a proportionate discount for factors other than the utilitarian value of a plea is to adopt an overly mechanical rule. In some circumstances, the provision of an arithmetical deduction may provide an element of transparency which promotes "accessible reasoning": see Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [39] (Gleeson CJ, Gummow, Hayne and Callinan JJ). The real risks in arithmetical calculation are twofold: first, the calculation may lend an air of precision which, far from promoting transparency, may be misleading. Secondly, to identify an arithmetical deduction in relation to a specified factor of mitigation, or more than one factor, may result in "double counting" if the factor is one which is "not susceptible to isolation from other relevant factors" or is not susceptible to "mathematical evaluation": see R v MAK, 167 A Crim R 159 at [45]. It was the element of double counting, which led to an unduly lenient sentence and to the interference of the Court in that case. Indeed, a specific discount for "remorse" was seen as inappropriate in circumstances where remorse was the underlying justification for treating other matters as mitigating factors: R v MAK at [42]. Thus, remorse would no doubt co-exist with the offender being a person of good character; would underlie a conclusion that the offender was unlikely to re-offend and had good prospects of rehabilitation, and is expressly identified as relevant to making reparation for an injury, loss or damage: see Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(f), (g), (h) and (i). 23 Taking into account, in a non-arithmetical way, each of the relevant mitigating factors identified in s 21A(3) will always run the risk of some degree of "double counting". As with allowance for factors of aggravation, care must always be taken to see that the end result does not appear overly lenient or harsh on what must be a largely impressionistic basis. Once it was accepted as a fact that the plea justified a finding of remorse and contrition and that the finding was enhanced by the fact that it was a plea to a weak Crown case, a degree of alteration of a sentence otherwise appropriate would have been justified. Accepting for the purpose of this contention the Crown's complaint that the overall sentence was manifestly inadequate, it is nevertheless not clear either that there had been double counting or that the additional discount of 13.3% itself demonstrated error taking the sentence outside the appropriate range. The specific complaint has not been made good. Manifest inadequacy: a factual assessment 24 The real question was whether the sentence, particularly when account is taken of the requirement that the non-parole period be served by way of periodic detention, in itself revealed manifest inadequacy. The Director's case was both that her Honour had "tailored the length of the sentence to enable her to order that it be served by way of periodic detention" and that, given the circumstances, a direction that the sentence be served by way of periodic detention demonstrated manifest inadequacy. The sentence imposed (3 years imprisonment) was the maximum that would permit a direction that the non-parole period be served by way of periodic detention: see Crimes (Sentencing Procedure) Act, s 6. 25 It is undoubtedly correct to say that it would have been inappropriate for her Honour to "tailor the sentence" in the way suggested. But if a sentence of 3 years imprisonment with a 2 year non-parole period was manifestly inadequate, that being the maximum sentence to which an order for periodic detention could apply, then error would be demonstrated without the need to determine whether the inadequacy was due to inappropriate manipulation of the figures: cf Regina v Zamagias [2002] NSWCCA 17 at [26] (Howie J, Hodgson JA and Levine J agreeing). There was no other basis for suggesting that the sentence had been inappropriately 'tailored'. Accordingly, the question remains the general one, namely whether the sentence was, in all the circumstances, manifestly inadequate. 26 The Director acknowledged that an offence of this kind may cover a wide range of circumstances and that there were difficulties in relying on sentencing statistics, which themselves revealed the extent of the range. Further, that range existed despite the fact that, as her Honour recognised, the offence carried a maximum penalty of 25 years imprisonment and was subject to a standard non-parole period of 7 years. There were significant reasons for departing from the standard non-parole period, the respondent having pleaded guilty and her Honour having made unchallenged findings that this was not a mid-range offence under s 33, but fell into the low range. 27 The Director sought to obtain support for his contention from other cases in which similar sentences had been set aside. Two, in particular, were referred to in the course of submissions. The earlier, Regina v Dickinson [2004] NSWCCA 457, was a case involving an attack with a knife by the offender on a man who was apparently living with a young woman with whom the offender had had a prior relationship and with whom he had had a daughter. The trial judge had imposed a sentence of 2 years imprisonment with a non-parole period of 12 months, and ordered that the sentence be suspended upon the respondent entering into a bond. This Court upheld an appeal against the inadequacy of the sentence and imposed a period of imprisonment of 2 years 2 months, to be served by way of periodic detention. 28 A second case, Regina v Deng [2007] NSWCCA 216, involved an appeal by the Director in relation to an offence under s 33 in which the sentencing judge had imposed an identical sentence to that imposed in the present case, which had been held on appeal to be manifestly inadequate, although this Court had determined, in the exercise of its discretion, not to intervene. 29 In describing these cases as 'similar', it is not intended to suggest that any dissection of the facts has been undertaken, in order to identify similarities and differences. Thus, in Deng, after referring to Dickinson, James J (with whom Mason P and Hislop J agreed) stated at [80]: "I accept that this Court should have some regard to the decision in Dickinson . However, Dickinson remains a single decision on its own facts, some of which are dissimilar to the facts in the present appeal and this Court should not endeavour to determine the present appeal by attempting to make a point by point comparison of the present case with Dickinson ." 30 The same cautionary note should operate in the present case. 31 In the final analysis, an assessment of whether the sentence imposed was manifestly inadequate must be made in the light of her Honour's findings. Some of those findings might well be described as generous to the respondent. However, they have not been challenged by the Director. There may be good reason for that. For example, to challenge a failure to make an adverse finding would require the Director to demonstrate that her Honour was in error in entertaining a reasonable doubt as to the correctness of the proposed finding. Further, her Honour's conclusions depended upon more than findings of primary fact; they involved the drawing of inferences and the characterisation of degrees of culpability. At that second level, a challenge by the Director would also run into obstacles. As was explained by Spigelman CJ in Mulato v Regina [2006] NSWCCA 282 at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open …." 32 In the present case, that exercise was undertaken on the papers: no witness gave oral evidence before her Honour. It may be appropriate in some cases to distinguish between the activities of primary fact-finding, inference drawing and characterisation of conduct. However, that is not necessary in the present case, the Director having eschewed a challenge to any of these aspects of the sentencing process. 33 Once it is accepted that the trial judge held that there was no premeditation or planning, that the removal of the knife from the kitchen was some form of spontaneous act without malicious intent, that the respondent did not seek out Mr Ademi for revenge, that on each occasion Mr Ademi reacted unprofessionally and provocatively with physical aggression in response to a verbal insult, that the respondent used the knife only after the commencement of physical violence and when in fear of further beatings, and that the injuries inflicted were not "significant", it is not possible to say that the sentence was manifestly inadequate. That it may well have been on a different view of the facts is beside the point. Conclusion 34 The ground of manifest inadequacy not having been made out, the Director's appeal should be dismissed. 35 BARR J: I agree with Basten JA. 36 BUDDIN J: I agree with Basten JA. ********** 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.