New South Wales Court of Criminal Appeal CITATION: English v R [2008] NSWCCA 134 HEARING DATE(S): 06/06/2008 JUDGMENT DATE: 20 June 2008 JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 2; Hidden J at 3 DECISION: Leave to appeal granted, appeal allowed. Sentence in District Court quashed. In lieu, applicant sentenced to non-parole of 1 year and 8 months, commencing on 30 October 2006 and expiring on 29 June 2008, and a balance of term of 6 months, commencing 30 June 2008 and expiring 29 December 2008. Direct his release on parole on 29 June 2008 CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - intimidation with intent to cause fear of physical harm - applicant with unfavourable criminal record, on parole at time of offence - sentence manifestly excessive, given objective circumstances of offence Crimes (Domestic and Personal Violence) Act 2007 (s13) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 (s21A(2)(d);s47) Crimes Act (s562AB) Veen v The Queen (No2) (1988) 164 CLR 465 CASES CITED : R v McNaughton [2006] NSWCCA 242, (2006) 66 NSWLR Callaghan v R [2006] NSWCCA 58, (2006) 160 A Crim R 145 PARTIES: Daniel Luke English (applicant) Regina (respondent) FILE NUMBER(S): CCA 2007/3754 COUNSEL: B Rigg (applicant) N Adams (Crown) SOLICITORS: Legal Aid Commission (applicant) Director of Public Prosecutions (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/21/3072 LOWER COURT JUDICIAL OFFICER: Keleman DCJ LOWER COURT DATE OF DECISION: 17 August 2007 IN THE COURT OF CRIMINAL APPEAL CCA 2007/3754 McCLELLAN CJ at CL SIMPSON J HIDDEN J Friday 20 June 2008 DANIEL ENGLISH v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hidden J. 2 SIMPSON J: I agree with Hidden J. 3 HIDDEN J: The applicant, Daniel Luke English, pleaded guilty in the District Court to a charge of intimidation with intent to cause fear of physical harm, an offence under s562AB of the Crimes Act which carried a maximum sentence of imprisonment for 5 years. (The section has since been repealed and replaced by s13 of the Crimes (Domestic and Personal Violence) Act 2007.) He was sentenced to imprisonment for 2 years and 8 months, comprising a non-parole period of 2 years and a balance of term of 8 months, commencing on 30 October 2006, the date of the offence and of his arrest. He seeks leave to appeal against that sentence. Facts 4 In the early afternoon of the day in question, the applicant boarded a city bound train at Liverpool. The victim, a university student from South Africa, boarded the train at Warwick Farm. The applicant entered the carriage in which the victim was travelling, sat next to him, began to read a newspaper and engaged him in conversation. He introduced himself and there was conversation about the victim's studies. In the course of the conversation, the applicant told the victim that he had just got out of prison that day. 5 The conversation continued until the applicant said, "Can you help me out with some money?" The victim said that he could not. The applicant said, "Listen, I've just come out of prison, I can hurt you, it doesn't mean anything to me." As he said this, he seized the front part of his own jumper. The victim thought that he might be concealing a weapon of some kind and feared that he would be harmed. 6 The applicant moved closer to the victim, and again asked him to help him out. He continued to hold his jumper in the same fashion. The victim said that he could not help him. The applicant then apologised to him, saying, "I thought you were messing around with me, you've got to see where I'm coming from, I've just come out. Sorry, OK." He extended his hand to the victim and they shook hands. The applicant then left the carriage. 7 At about this time the train arrived at Fairfield railway station. The victim went to the guard's compartment and told the guard what had happened. The guard notified police by phone, and the victim remained in the guard's compartment because he still feared the applicant. At Granville railway station police entered the train and arrested the applicant. He took part in a recorded interview, in which he denied intimidating the victim. Subjective case 8 The applicant was twenty-five years old at the time of the offence, and is now twenty-six. There was a body of subjective material before the sentencing judge, which it is not necessary to recount. It is sufficient to say that he appears to have had a disturbed upbringing, he suffers from several medical conditions, and has a history of addiction to alcohol and illicit drugs. 9 His criminal record is significant. In 1999 he was dealt with in a Children's Court for stealing. In the following year he was placed on a control order for robbery in company, and later in that year he was sentenced in the District Court to a term of imprisonment for a similar offence. In 2003 he was again before the District Court, when he was sentenced to a term of imprisonment for robbery, and in 2004 he was sentenced to further terms of imprisonment for robbery and armed robbery. He was on parole in respect of those last two offences at the time he committed the subject offence. 10 There was some similarity between the present offence and the modus operandi of the three offences for which he was sentenced in 2003 and 2004. Statements of the facts of those offences were before his Honour. In each case the offence was committed on a train. The armed robbery involved the use of a knife, and was committed after the applicant had sat next to the victim and engaged him in apparently innocent conversation. One of the robberies also began with the applicant conversing with the victim, and was perpetrated by his putting the victim in fear by saying that he had been in gaol for eight years for stabbing someone. In the other robbery the applicant sat next to the victim, moved his hand under his shirt and moved towards the victim, so that the victim felt a sharp object pressed against him. He threatened to stab the victim, who believed that he had a knife. All three victims were made to hand over their money and their mobile phones. 11 His Honour appears to have had regard to the facts of those offences only in so far as they tended to call into question the applicant's account of the present offence to a psychologist, whose report formed part of the subjective material. He told the psychologist that he thought that the victim was "looking down on him" and had reacted to him in a "rude" way, and that he was "overly sensitive" to any suggestion that people might think ill of him. Having made that observation about the evidence, his Honour said that he was "more than aware" that those robbery offences were of a different nature from the offence for which the applicant stood for sentence. 12 His Honour did not consider that the applicant had good prospects of rehabilitation, and did not find special circumstances warranting a departure from the usual proportion between sentence and non-parole period. However, his Honour was satisfied that he was genuinely remorseful. He considered that the utilitarian value of the plea of guilty merited a discount of sentence "in the order of twenty-five per cent". 13 His Honour saw personal deterrence as an important factor in sentencing the applicant, given his criminal history. At the time of sentence the applicant's parole had been revoked because of the present offence, and he was serving a balance of term to expire on 31 December 2007. His Honour recognised the fact that the present offence had been committed while on parole as an aggravating factor. Nevertheless, he backdated the sentence to the date of the applicant's arrest, 30 October 2006. In the result, only ten months of the period he would have to serve before being eligible for parole is exclusively referable to this offence. The application 14 The only ground of the application is that the sentence is manifestly excessive. For the reasons submitted by Ms Rigg, who appeared for the application, I am satisfied that this ground is made out. The sentence of 2 years and 8 months is a little over half the maximum sentence for the offence. Moreover, it was arrived at after a discount of about twenty-five per cent for the applicant's plea of guilty, so that his Honour's notional starting point must have been of the order of 3½ years. Such a sentence is more than could be justified by the objective gravity of the offence which, given the facts as outlined, must be regarded as relatively low. 15 Ms Rigg supplied us with Judicial Commission statistics of sentence for this offence. It can be dealt with summarily, and the figures show that the great majority of cases were. (That is not to suggest that the present offence should have been, given the applicant's criminal record and the fact that his offence was committed whilst on parole.) The figures go on to show that forty-one of the recorded cases were dealt with in the District Court, of which eleven resulted in full time custodial sentences. They ranged from 6 months to 2½ years, so that the present sentence is higher than any of them. Those statistics lend some support to Ms Rigg's argument, although they must be approached with the caution which this Court has urged more than once, particularly as the sample of District Court cases is rather small. 16 Ms Rigg suggested that his Honour may have fallen into error by giving undue weight to the applicant's criminal history, although she acknowledged that no such error is conveyed by his express reasons. She referred to the well known passage from the joint judgment in Veen v The Queen (No2) (1988) 164 CLR 465 at 477-8, in which their Honours explained the relevance of an offender's criminal history and emphasised that it must not be given "such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence". Their Honours went on to observe that, consistently with that basal principle, an unfavourable criminal record may mean that greater weight has to be given to retribution, deterrence or the protection of society. Those principles were revisited, in the context of s21A(2)(d) of the Crimes (Sentencing Procedure) Act, by a five judge bench of this Court in R v McNaughton [2006] NSWCCA 242, (2006) 66 NSWLR 566. 17 I would not readily find that a judge as experienced as the present sentencing judge had fallen into such an error but, in any event, that finding is not necessary for the applicant to succeed. There is no doubt that considerations arising from his criminal history, particularly personal deterrence, justified a sentence more severe than otherwise would have been warranted. However, I am persuaded that the sentence which his Honour passed exceeds "the outer boundary of a proportionate sentence…set by the objective circumstances of the offence": McNaughton, per Spigelman CJ at [24]. 18 What, then, of the fact that much of the sentence was concurrent with the balance of term the applicant had to serve following the revocation of his parole? The Crown prosecutor in the District Court submitted that it was appropriate for his Honour to backdate the sentence as he did. Nevertheless, a different Crown prosecutor in this Court argued, quite properly, that that is a matter which we should take into account in determining whether to intervene. His Honour sentenced the applicant on 17 August 2007. As is clear from Callaghan v R [2006] NSWCCA 58, (2006) 160 A Crim R 145, the determination of the commencement date was discretionary, although the effect of s47 of the Crimes (Sentencing Procedure) Act is that it could not have been later than the date on which sentence was passed. 19 However, Ms Rigg identified several reasons why the backdating of the sentence was appropriate, and I do not consider that the undoubted benefit which the applicant gained from it should stay this Court's hand. His parole was revoked only because of the present offence. He had been on parole for a significant period of time before re-offending, having been released on 31 December 2005 and having committed this offence at the end of October in the following year. The balance of term to be served, following the revocation of his parole, was a substantial period. Moreover, whereas prisoners whose parole is revoked may seek re-parole, the present sentence meant that he could not do so: cf Callaghan, per Simpson J at [23]. 20 The extent to which this Court can intervene is constrained by the fact that the applicant is now due for parole on 29 October 2008, a little over four months hence. Were it not for that fact, a lesser sentence than that which I propose might well have been warranted. In my view, the applicant should be released by the end of this month but it would be in the community's interest that he be subject to the sanction of parole, even though for a short period only. I would achieve this by reducing the sentence by 6 months and the non-parole period by 4 months, while preserving his Honour's commencement date. The result would be a sentence of 2 years and 2 months, with a non-parole period of 1 year and 8 months, dating from 30 October 2006. 21 I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court and, in lieu, I would sentence the applicant to a non-parole period of 1 year and 8 months, commencing on 30 October 2006 and expiring on 29 June 2008, and a balance of term of 6 months, commencing on 30 June 2008 and expiring on 29 December 2008. I would direct his release on parole on 29 June 2008. ********** 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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