New South Wales Court of Criminal Appeal CITATION: Black v R [2008] NSWCCA 337 HEARING DATE(S): 15 December 2008 JUDGMENT DATE: 22 December 2008 JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 25; Latham J at 26 1.Leave to appeal granted and appeal upheld. DECISION: 2.Sentence imposed in the District Court quashed. 3.Sentence the applicant to a non-parole period of 18 months commencing on 6 April 2009 and expiring on 5 October 2010 with a further term of 18 months expiring on 5 April 2012. CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applicant convicted of doing an act with intent to influence a witness - sentence manifestly excessive - Crimes Act 1900 s 323(a) LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment CASES CITED : MB v R [2007] NSWCCA 245 PARTIES: Michael Black (Applicant) The Crown FILE NUMBER(S): CCA 2007/7075 COUNSEL: H Cox (Applicant) P Calvert (Crown) SOLICITORS: Legal Aid Commission for NSW (Applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/41/0008 LOWER COURT JUDICIAL OFFICER: Conlon DCJ LOWER COURT DATE OF DECISION: 27 September 2007 IN THE COURT OF CRIMINAL APPEAL 2007/7075 McCLELLAN CJ at CL SIMPSON J LATHAM J MONDAY, 22 DECEMBER 2008 BLACK, Michael v R Judgment 1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against the sentence imposed upon him in respect of one count of doing an act with intent to influence a witness contrary to s 323(a) Crimes Act 1900. The maximum penalty for the offence is imprisonment for seven years. The applicant was sentenced to a non-parole period of three years commencing on 6 January 2008 and expiring on 5 January 2011 with a balance of term of two years imprisonment commencing on 6 January 2011 and expiring on 5 January 2013. 2 The practical effect of his sentence was to add one year to the sentence which had already been imposed for offences of malicious wounding and aggravated car-jacking. It was the complainant, in the malicious wounding matter who the applicant attempted to influence when committing the present offence. 3 In this Court the Crown did not resist the applicant's submission that the sentence imposed for the attempt to influence offence was excessive and requires the intervention of this Court. It is accordingly necessary to determine the appropriate sentence and in particular having regard to matters of totality the period of full time custody which the applicant should serve before being released to parole. The facts 4 After a trial in the District Court the applicant was found guilty of a charge contrary to s 154C of assaulting with intent to take a motor vehicle whilst in company (aggravated car jacking). James Koning and his partner Rebecca Noakes were Crown witnesses and gave evidence at the trial. 5 The applicant was in custody prior to the commencement of the trial and sent a letter via Australia Post to Mr Koning's home. The letter was received on 18 May 2006. The back of the envelope indicated that it was sent by the applicant and gave his prisoner identification number. 6 The letter said: "To Jimbo, what's going on? Why are you saying it was me and Kano that done this car jacking? What cause your dirty on us? Going doubles on your missus. Come on that's in the past. That was two years ago and don't think you're getting any money off us now for that ounce of ice and if I go down for something I didn't do because of you, you better watch your back. All right so think about who you're covering for and what you're doing. Be careful it's a dangerous game. Blacky." 7 Mr Koning made copies of the letter and handed the original to police. 8 As I have indicated notwithstanding receipt of the letter, Mr Koning gave evidence and the applicant was convicted. He subsequently pleaded guilty to an unrelated matter of malicious wounding. 9 The applicant was sentenced for both the aggravated car jacking and malicious wounding in the District Court on 6 October 2006. For the aggravated car jacking he was sentenced to imprisonment for 7½ years comprising a non-parole period of 5 years and a balance of term of 2½ years. For the malicious wounding he was sentenced to imprisonment for 4 years comprising a non-parole period of 2½ years and a balance of term of 18 months commencing on 8 December 2009. 10 The applicant appealed the sentences and on 14 August 2007 this Court allowed the appeal (MB v R [2007] NSWCCA 245) and the applicant was re-sentenced. The standard non-parole period for the offence of aggravated car jacking was varied by the Court due to his youth, his disturbed background and his prospects of rehabilitation. 11 The applicant was resentenced as follows: · For the offence of malicious wounding, a non-parole period of 18 months, commencing on 6 January 2006 and expiring on 5 July 2007 was imposed with a balance of term of 2½ years commencing on 6 July 2007 and expiring on 5 January 2010. · For the offence of aggravated car jacking, a non-parole period of 3 years was imposed commencing on 6 January 2007 and expiring on 5 January 2010, with a balance of term of two years, commencing on 6 January 2010 and expiring on 5 January 2012. 12 Accordingly, the expiry date of the non-parole period prior to the imposition of the sentence for the present offence was 5 January 2010 and his full term expired on 5 January 2012. The effect of the sentence imposed for the present offence was to increase the non-parole period of the applicant's sentence by one year and to extend the length of the overall sentence by one year. 13 Little was placed before the Court by way of subjective material on the applicant's behalf. However, the sentencing judge found that applicant is the youngest of a number of children. He lived with his mother in the Berkeley area of Wollongong at times when he was not in custody. He had had a troubled childhood and spent a significant period of his life in juvenile detention centres. 14 He has a brother Shane who is aged in his thirties. Shane is available to be a support and role model for his younger brother and wishes to try and influence the applicant away from criminal activity. 15 The applicant has a long history of substance abuse. He started using cannabis at the age of eleven and alcohol as a very young teenager. He has more recently become addicted to crystal methamphetamine or ice. 16 The applicant is now 21 years of age. He was aged 19 years at the time of the offence. 17 The sentencing judge accepted that the applicant had pleaded guilty at an early opportunity and allowed a discount of 20% for his plea. The consequence is that the starting point for the maximum term of the sentence must have been six years and three months. The offence carries a maximum penalty of seven years imprisonment. 18 The offence was serious and does, as the sentencing judge confirmed, strike at the heart of the criminal justice system. It was not the most serious offence or even a most serious offence of its type. The applicant's actions could properly be described as naïve in sending a letter which he signed making it inevitable that his offending would be detected. It bespeaks the actions of an immature person finding himself in distress following his incarceration for the primary offences. 19 When, as in the present case, a court is sentencing for a serious offence but where the sentence will be imposed in addition to a significant prison term for other matters, it is important to ensure that the overall sentence is not crushing. There must also be a recognition of the prospects of rehabilitation. 20 This Court was provided with the statistics collected by the Judicial Commission in relation to sentencing of offenders for the present offence. The statistics reveal that 17 cases have come before the District Court in the period during which statistics have been collected. Of these approximately half have received prison sentences while the others have been dealt with by way of bond, community service, suspended sentence or periodic detention. The statistics indicate that the applicant has received the most significant sentence of any offender. 21 In my judgment the offence was serious. It was aggravated by the fact that it was committed when the applicant was in custody, bail having been refused in relation to the primary offences. The applicant incorporated reference in the letter to the complainant being a drug dealer, a false allegation, which was no doubt made in order to deter the applicant from reporting the matter to the authorities. The crime was not impulsive. 22 However, the applicant is a young person and the period in custody which he must serve in relation to the other offences is significant. His troubled history indicates that he will need a significant period of supervision within the community if he is ever to put his life in order. That opportunity should be provided through a sentencing regime proportionate to his offending but which provides an opportunity for him to rehabilitate himself within the community. 23 In my judgment the appropriate sentence is a period of full time custody of 18 months with an additional term of 18 months. I would provide that the sentence commence on 6 April 2009 and accordingly he will be eligible for parole on 5 October 2010 the further term of his sentence being completed on 5 April 2012. The consequence will be that he serves a period of full time custody for this offence of 9 months. 24 I find special circumstances both because of the applicant's age and the need to provide a sentence which appropriately recognises the other sentences imposed upon him. Orders 1. Leave to appeal granted and appeal upheld. 2. Sentence imposed in the District Court quashed. 3. Sentence the applicant to a non-parole period of 18 months commencing on 6 April 2009 and expiring on 5 October 2010 with a further term of 18 months expiring on 5 April 2012. 25 SIMPSON J: I agree with McClellan CJ at CL. 26 LATHAM J: I agree with McClellan CJ at CL. ********** 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.