New South Wales Court of Criminal Appeal CITATION: SHILLINGSWORTH, Richard v R [2010] NSWCCA 19 HEARING DATE(S): 10 February 2010 JUDGMENT DATE: 10 March 2010 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 3 DECISION: 1. Grant leave to appeal. 2. Dismiss the appeal. CATCHWORDS: CRIMINAL LAW – appeal against sentence – assault and contravention of prohibition or restriction in an order – whether trial judge denied the applicant procedural fairness - whether trial judge erred in his consideration of applicant's remorse – whether trial judge erred in failing to find special circumstances – whether sentence is manifestly excessive – no error found - leave to appeal granted but appeal dismissed. LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment CASES CITED : Clare v R [2008] NSWCCA 30; (2008) 181 A Crim R 450 PARTIES: Richard Shillingsworth (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2008/11078 COUNSEL: R W Burgess (Applicant) J A Girdham (Respondent) SOLICITORS: S E O'Connor, Solicitor for Legal Aid New South Wales (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11078 LOWER COURT JUDICIAL OFFICER: King DCJ LOWER COURT DATE OF DECISION: 27 January 2009 IN THE COURT OF CRIMINAL APPEAL 2008/11078 McCLELLAN CJ at CL HOWIE J HARRISON J 10 March 2010 Richard SHILLINGSWORTH v R Judgment 1 McCLELLAN CJ at CL: I agree with Harrison J. 2 HOWIE J: I agree with Harrison J. 3 HARRISON J: The applicant seeks leave to appeal against a sentence imposed upon him by King DCJ in the Sydney District Court on 27 January 2009 for offences committed on 15 February 2008. The applicant pleaded guilty at the Central Local Court on 17 July 2008 to one charge of assault occasioning grievous bodily harm. Before the matter was dealt with, that charge was withdrawn and substituted by a charge of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900. The applicant pleaded guilty to the substituted charge as well. The maximum penalty for that offence is 5 years imprisonment. 4 The applicant also adhered to his plea of guilty to one charge on a s 166 certificate of contravene a prohibition or restriction in an order contrary to s 562ZG of the Crimes Act (since repealed) for which the maximum penalty was 2 years imprisonment. 5 The applicant was sentenced for the assault to a total term of 3 years with a non-parole period of 2 years and 3 months and a balance of term of 9 months. The sentence was backdated to take account of 250 days already spent in custody, to commence on 13 November 2008 and to expire on 12 November 2011. His Honour directed that the applicant be released to parole on 12 February 2011. The applicant was sentenced on the further charge to a term of imprisonment of 1 year, also backdated, to commence on 13 November 2008 and to expire on 12 November 2009. 6 The applicant appealed on four grounds, but only three now require consideration by this Court. This is because the applicant had originally contended that he had been denied procedural fairness inasmuch as his Honour was said to have come to a conclusion on credit unfavourable to the applicant without having given him the opportunity to give evidence about it or to be heard. This arose from a perceived failure by the applicant to report to a psychologist who examined him the fact that he had an extensive criminal record in Queensland. That procedural defect, if it was a defect, was cured in this Court by permitting the applicant to give evidence on the topic, and allowing his counsel to make such submissions upon it as were thought to be appropriate. In the events that occurred, that is what happened. The point was thereafter not pressed in support of the first ground of appeal. 7 The remaining grounds of appeal were as follows: Ground 2 : His Honour erred in his consideration of the applicant's remorse. Ground 3 : His Honour erred in failing to find special circumstances. Ground 4 : The sentence is manifestly excessive. Background 8 The applicant is a 34-year-old Aboriginal man who had been in a volatile relationship with the victim of the assault. He had previously been charged with other assaults on her on 25 September 2007 and 6 November 2007. He was on bail for those offences when he committed the subject offence. On 22 October 2008 the applicant was sentenced in the Local Court to 6 months imprisonment for assault to date from 22 October 2008 and to 12 months imprisonment to date from 22 October 2008 with a non-parole period of 9 months expiring on 21 July 2009 and a balance of term of 3 months for assault occasioning actual bodily harm. 9 On the evening of 14 February 2008 the victim and the applicant were at a friend's house where they consumed alcohol. The applicant claimed that the victim accused him of infidelity, which he denied. They left about midnight and walked towards the victim's home. On the way the victim again accused the applicant of infidelity and she struck him with a bottle, injuring his hand. The applicant punched the victim a number of times, knocking her to the ground. Whilst she was on the ground he kicked her four or five times dislodging her two top front teeth. By this assault he breached an interim domestic violence order then in force in respect of the victim. 10 The applicant gave evidence. He said that as a result of the preceding events he "ended up losing it". He said that he had been drinking all day and that he was "pretty drunk" at the time. 11 In his evidence at the sentencing hearing the applicant expressed remorse and said that he had written to the victim to tell her that he was sorry. He said that he had been using heroin prior to going into custody and agreed that he had a problem with alcohol and drugs. He had commenced the methadone programme and attended Alcoholics Anonymous. He expressed a resolve to stay away from alcohol. He was also willing to do the compulsory drug treatment programme if he was considered suitable. His version of the events on the evening in question was not challenged. He agreed that he could have walked away. 12 His Honour found that the objective seriousness of the offence was high. He said that whatever may have been the cause of the argument and whatever may have been its connection to the assault, the assault was a serious one and the injuries to the victim were significant. The applicant's subjective case 13 The applicant came from a very disadvantaged background. He was born in Brisbane in September 1973 of Aboriginal ancestry. He was the youngest of 10 half-siblings. He never met his father and his mother was an alcoholic who left the family when he was young. His grandparents raised him until their death when he was 14. He became a street kid. He left school after year 6. 14 He began sniffing petrol and glue when he was about 8 or 9 years of age, and started consuming alcohol at the age of about 12 or 13. He began to smoke cannabis at 14 and at 18 or 19 years of age he started using amphetamines. When he was 31 or 32 he commenced using heroin and developed an addiction. His only form of rehabilitation had been to join a methadone programme. 15 The applicant had an extensive criminal record in Queensland commencing when he was 12. He had served a number of custodial sentences, mostly for property offences such as breaking and entering and stealing motor vehicles. In 1993 he was convicted of stealing with actual violence. In 2000 he was convicted of wounding, and of entering a dwelling with the intention of committing an indictable offence. He was sentenced to 12 months imprisonment for each matter. He had no previous convictions for domestic violence. 16 The applicant was dealt with in the Children's Court in New South Wales in 1989 when he was 15 for a number of offences including break and enter, illegal use of a conveyance and possession of a prohibited drug. Nothing appears on his record thereafter until 2005 when a charge of resisting or hindering police was dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999. He was on this bond at the time of the assaults on the victim. 17 Mr Taylor, a psychologist, reported on the applicant in August 2008 and assessed his level of intellectual functioning as within the borderline range. His performance scale IQ was better than for only about eight per cent of the population of his age. Mr Taylor said that while a person with this level of disability may be able successfully to function independently in the community and hold a job, this was not the case with the applicant because of his family environment and a lack of structure and support. He had a substance abuse disorder. He was assessed to have a moderate risk of recidivism. 18 Mr Taylor saw the applicant again in December 2008 when he was also provided with his Queensland criminal record. Mr Taylor said that while the additional material affected his previous assessment of the applicant's recidivism, it did not alter his assessment that he still had a moderate risk of re-offending. He said that in light of the additional material he was in a stronger position to state that the applicant's early life had had a significant impact on his social and emotional development and that provided he remained motivated to do so there were reasonable prospects of rehabilitation. Ground 2 19 As a result of the applicant having given evidence in this Court, which included evidence of his remorse, this ground of appeal must be determined in those circumstances. That included the following material: "Q. Had that happened before when you were on the domestic violence order, that the complainant--? A. It happened a few times. I tried to move. I would be at a friend's place, she would come these [sic] screaming and carrying on;-I would have to leave because I had never - I'm not blaming her, I'm not putting all the blame on her, but I tried to get myself away from her, I tried to get up and move away from where I had been all day, just because she turned up. She had an AVO and if the police come I was the one that will be taken away. When I've seen her on the street, I've given her money for the kids. When I was at my auntie's place she'd come there and invaded my privacy. She knew she couldn't but she come there. She gets intoxicated and comes there and swears and carries on. Q. Is it also the case that your evidence in the District Court was that she struck you with a bottle or injured your hand? A. Yes, she stabbed me in the hand with a glass. That's what first started us arguing, she come there arguing and carrying on. I just -- I ignored her. She walked in and barged her way in. I was sitting there -- actually I was sitting with another girl which made it worse. We started arguing and she stabbed me in the hand. ***** Q. Even taking into account all these matters, what is your attitude to this offence? How do you feel now? A. It's bad; I've never had an AVO domestic violence in my life. I don't believe in hitting women. I was just -- I just lost it, you know, she stabbed me. I ignored it, I said 'don't worry about it', patched my hand up and walked away from it after that. I thought she grabbed my arm - I feel sorry for what I done to her; I didn't expect to be doing that. Of course I feel bad for her, real bad." 20 In the course of his remarks on sentence his Honour referred to the applicant's expressions of remorse in the context of the view he had formed about whether the applicant could be believed by reason of his failure to disclose his Queensland criminal record to Mr Taylor as previously noted. His Honour had this to say: "… although I note that the [applicant] expressed that he was remorseful for his conduct on this occasion, considering his previous criminal record, and his allowing Mr Taylor to be deceived, or actively misleading Mr Taylor in respect of his past history, I cannot accept his evidence that he has any remorse in respect of this matter. That is particularly so in circumstances where at the time of this offence he was the subject of a s 9 good behaviour bond for the offence of possessing a prohibitive [sic] weapon for two years, which was imposed at the Downing Centre Local Court on 24 April 2006." 21 When cross-examined in this Court the applicant gave the following evidence: "Q. You gave evidence before the sentencing Judge in relation to this matter? A. I did, yeah. Q. And there you stated that you were not putting the blame on her, that is the complainant in this matter? A. Mm. Q. But is it the case that you think that perhaps she causes the problems? A. Half and half. Q. Sorry? A. Half and half. Q. Half and half? A. Yeah. ***** Q. And you knew that you weren't to have contact with her? A. Yeah I knew that, yeah. Q. You knew that? A. Yeah. Q. And you knew you were not to hit her? A. Mm. Q. But you did hit her? A. Yeah. Q. And you say she is half to blame for that? A. Well yeah, I am not blaming, yeah. Q. Tell the members of the Bench what you think? A. I just had a brain explosion. She stabbed me in the hand, she come to my house where she isn't welcome in my own house and I just snapped. I walked down the road and she threw a bottle. After she stabbed me in the hand I just lost it. When she first stabbed me in the hand I just ignored it, you know, I said, yeah, you have to leave and then after she rang the police and when I was walking down the road I tried to talk to her and she threw a bottle at me. I thought she broke my arm because my arm went dead for a little and I just was losing it with her." 22 For my part I note that this evidence has to be considered in light of the fact that the applicant took the opportunity when giving evidence in this Court expressly to deal with the issue of remorse. Having regard to the circumstances of his attack upon the victim, including that he punched her and kicked her so that she lost her front teeth, I am not particularly impressed with his attribution of any fault on her part for what occurred. Putting aside completely any pejorative view of the applicant's credit that may have influenced his Honour, I find it difficult to accept expressions of remorse that even now remain qualified by the need to blame the victim in any way at all for what he did to her. Explanations such as "I just snapped" or "I just lost it" are not expressions of remorse but instead appear to align with some attempt to sheet home a degree of fault to the victim for what befell her. Nothing said by the applicant in this Court suggests to me that he is remorseful. A similar finding by his Honour, even if arrived at upon the basis of material that he should not have considered, cannot now be considered to be erroneous. 23 The applicant also submitted that his previous plea of guilty to a more serious charge was a matter to be taken into account in his favour as evidence of remorse. I do not accept that proposition. Why the original charge was not maintained is unexplained on the material before this Court and seems to me quite baffling. The injuries sustained by the victim would on any view appear to have qualified as really serious injury. In pleading guilty to the more serious charge the applicant was doing no more than giving recognition to that uncontroversial fact. It had nothing to do with remorse. He was in any event given a maximum discount for his early plea of guilty. 24 This ground of appeal fails. Ground 3 25 Having allowed a discount of 25 per cent for the early plea, his Honour went on to make the following remarks: "Accordingly, I would have imposed a sentence in respect of the assault occasioning actual bodily harm, viewed, as I have, as a serious matter above the mid range, and that is in the serious range of four years. After applying the twenty-five percent discount, the term of the sentence would be reduced to three years and that would then indicate, in the absence of special circumstances – which I do not find – a non parole period of two years and three months." 26 His Honour did not give reasons in support of his decision not to find special circumstances. Nor was he required to: s 44(2) of the Crimes (Sentencing Procedure) Act. The applicant contended that there were strong grounds for a finding of special circumstances, at the least because of what is said to have been the effect of the accumulation of the sentences on the overall ratio between the effective non-parole period and the head sentence. 27 This argument derived from what was said by McClellan CJ at CL in Clare v R [2008] NSWCCA 30; (2008) 181 A Crim R 450, at [37] - [38]: "[37] It was submitted that his Honour had not considered the question of whether the effect of accumulation of the sentences itself produced special circumstances calling for a variation in the proportion between the parole period and the head sentence pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999. [38] There are many cases in which this Court has recognised that the fact that sentences are made cumulative one upon the other may constitute special circumstances justifying a departure from the 'one-third' rule in relation to an individual sentence (see Close v Regina (1992) 65 A Crim R 55; Simpson v Regina (1992) 61 A Crim R 58; R v Ibrahim [2005] NSWCCA 43; Qing An v R [2007] NSWCCA 53 at [107]-[113])." 28 The applicant submitted that it was not clear that his Honour gave consideration to whether the decision to accumulate the sentences itself amounted to a special circumstance. Moreover, there was said to be material that strongly supported the need to foster the applicant's rehabilitation. Whilst he had numerous convictions in Queensland, his recent record in New South Wales, apart from the present offences, reflected a move away from offences of dishonesty. The applicant submitted that the present offences, as well as previous offences against the same victim, appear to be atypical of his general pattern of offending and were related to alcohol abuse. 29 The applicant contended that the structure of the sentences has led to a departure from the ratio contemplated by s 44(2), for which no reasons have been given and for which no reasons are otherwise apparent. The Chief Judge dealt with this type of issue in Clare v R as follows: "[39] Although his Honour considered the question of special circumstances in relation to count 2 it does not appear that he considered whether the decision to cumulate the District Court and Supreme Court sentences gave rise to a need to consider special circumstances having regard to the overall ratios. It would seem that the matter may not have been drawn to his attention. I am satisfied that consideration should have been given to this issue. It is apparent that the applicant will require both appropriate treatment and a significant period of supervision following his return into the community if he is ever to become a stable and law abiding member of society. I can see no reason to provide a period on parole shorter than the statutory ratio for his total sentence. If consideration had been given to this question in my view a finding of special circumstances was appropriate." 30 The applicant made the following written submission: "3. …[The applicant] previously had been charged with other assaults [on the victim] on 25 September 2007 and 6 November 2007, and was on bail as a result of those charges at the time of the present offence. In relation to these matters, on 22 October 2008 he was sentenced in the Local Court for common assault to 6 months imprisonment, to date from 22 October 2008, and for assault occasioning actual bodily harm to 12 months imprisonment to date from 22 October 2008, comprising a non parole period of 9 months, expiring on 21 July 2009, and a balance of term of 3 months. 4. King DCJ determined that the sentence for the present offence should be accumulated. Had the applicant not served 8 months and 8 days pre-sentence custody referable solely to the present offence, he would have dated the sentence from the expiration of the 9 month non parole period on 21 July 2009. However, taking this custody into account, he backdated the sentence to 15 November 2008. This had the effect of extending the applicant's non parole period by 9 months, and resulted in an effective total sentence of 3 years and 9 months imprisonment, comprised of a non parole period of 3 years and a balance of term of 9 months." 31 This is not correct, as a review of his Honour's remarks on sentence makes clear. His Honour said this: "In respect of those previous matters involving the same victim, . . the offender has been sentenced in the Local Court to periods of imprisonment. On 22 October 2008 he was sentenced in relation to the following offences: common assault, for which he received a fixed term of imprisonment of six months to date from 22 October 2008 and expire on 21 April 2009; common assault: - he was sentenced to imprisonment of twelve months to date from 22 October 2008 and to expire on 21 October 2009, with a non parole period of nine months to date from 22 October 2008 and to expire on 21 July 2009. He was sentenced in respect of contravening the prohibition or restriction of the AVO to imprisonment of twelve months, also to date from 22 October 2008 and to expire on 21 October 2009, with a non parole period of nine months to date from 22 October 2009 and to expire on 21 July 2009. In respect of the offence of assault occasioning actual bodily harm, he was sentenced to imprisonment for twelve months, again to date from 22 October 2008 and to expire on 21 October 2009 with a non parole period of nine months, to date from 22 October 2008 and expire on 21 July 2009. Accordingly, in respect of each of those offences that he was dealt with on 22 October 2008, he was sentenced to concurrent sentences, although on that date he was dealt with for two common assaults in respect of [the victim] and one assault occasioning actual bodily harm in respect of her, and also one offence of contravening the prohibition or restriction of the AVO. He had at 22 October 2008 been in custody since 15 February 2008 in respect of these matters. That explains why in respect of each of those terms of imprisonment, the learned Magistrate commenced the term of imprisonment on the date that he sentenced him. What that means is that the offender was bail refused in respect of these matters between 15 February 2008 and 22 October 2008, that being a period of eight months and eight days or 250 days. That custody was solely referable to the present charges and must be taken into account in sentencing . I am of the view that the sentence imposed in relation to these two offences should be cumulative to the sentences imposed by the learned Magistrate on 22 October 2008, particularly because of the sequence of assaults and breach of an order." (emphasis added) 32 This is clear and unexceptionable. His Honour wished to accumulate the sentences that he was intending to impose upon the sentences imposed by the Magistrate. The non-parole period of the Local Court sentences ended on 21 July 2009. The applicant had been in custody between that date and the date of his arrest on the present charges on 15 February 2008. That amounted to a period of 250 days between 15 February 2008 and 21 July 2009. Accordingly, the chosen commencement date for his Honour's sentences, accumulated upon the Local Court sentences, was 21 July 2009, but backdated by the 250 days spent in custody for these offences. That made the commencement date of his Honour's sentences 13 November 2008. The sentence imposed by his Honour, therefore, was a sentence of 3 years from that date with a non-parole period of 2 years and 3 months with a balance of term of 9 months. 33 It is therefore incorrect to contend, as the applicant contends, that this had the effect of extending the applicant's effective total sentence to a non-parole period of 3 years with a balance of term of 9 months. Paragraph 2 of the applicant's written submissions accurately recited that his Honour sentenced the applicant for the assault to 3 years imprisonment, comprised of a non-parole period of 2 years and 3 months and a balance of term of 9 months to date from 13 November 2008, and to a concurrent sentence of 1 year for the s 166 offence. This is what occurred. The applicant's effective total sentence imposed by his Honour therefore remained a non-parole period of 2 years and 3 months with a balance of term of 9 months. 34 If the applicant has any complaint it must be limited to a submission that the disjunction between the commencement of the Local Court sentences on 22 October 2008 and the commencement of the current sentences on 13 November 2008, a period of only 22 days, operated to invalidate the overall ratio of parole to non-parole periods imposed by the learned Magistrate and his Honour, having regard to the totality of the applicant's combined terms of imprisonment imposed in each jurisdiction. The applicant argues that this amounted to special circumstances within the Clare v R analysis and that a failure to recognise it and to allow for it in the overall sentence constituted error by his Honour in this case. 35 I disagree. First, the number of days is insignificant in the scheme of the overall sentences that have been imposed. The effect upon the ratio is so small that it does not constitute error by the sentencing judge. Even if it did, any interference or adjustment to account for the slight skewing of the ratio caused by it would amount to tinkering. Secondly, the sentences imposed upon the applicant in the Local Court were all commenced on the same day, which on one view was conspicuously favourable to the applicant in any event. There is no error to be found in his Honour's decision not to find special circumstances. 36 In other respects I note that the applicant has commenced a methadone programme for his heroin addiction and has also sought counselling for his alcohol problems in custody. These are matters that will in all likelihood require continuing supervision, monitoring and support following his release. It may be argued that a variation of the statutory ratio would have been appropriate in such circumstances. However, in order to succeed on that issue in this Court the applicant must also demonstrate that his Honour was accordingly in error in failing to find special circumstances. I can detect no such error. Ground 4 37 The applicant submitted that notwithstanding the fact that he was on a bond and bail when the offences were committed, a starting point of 4 years, representing a proportion of four-fifths of the maximum penalty for the assault charge, was manifestly excessive. It remained manifestly excessive in the applicant's submission despite the reduction of 1 year for the early plea. 38 The applicant submitted uncontroversially that the circumstances in which the offence occurred were relevant to the assessment of its objective seriousness. In this respect the applicant stressed that the victim was drinking with him and an argument ensued in the course of which the victim hit him with a bottle. He sustained an injury that required stitches. 39 In his remarks on sentence his Honour said this: "In view of the seriousness of the offence, and taking into account the [applicant's] past history, and particularly the fact that there were previous assaults on the same victim, and he was also in breach of previous orders at the time of this offence, I am of the view that there is no other sentence appropriate other than a term of full time imprisonment. ***** There have been frequent comments made in the courts of this State and in particular the Court of Criminal Appeal about the need to treat offences of domestic violence seriously, particularly in circumstances where they so commonly involve a male offender exercising his violent nature against comparatively defenceless females. Whatever the trigger was on 15 February 2008, there was no cause for the [applicant] to have beaten [the victim] about the face and to then proceed to kick her in the teeth while she was on the ground. In circumstances such as that there is a strong need for personal deterrence, general deterrence and denouncement of the offence by way of the sentence imposed. For those reasons, in addition, I will not make this sentence concurrent with the sentences previously imposed on 22 October 2008 [in the Local Court]. ***** I have given consideration to whether there should be some accumulation in respect of [the s 562ZG(1)] offence and the offence for which I have just sentenced the [applicant]. However, in view of the total time that the [applicant] will have spent in custody, I intend to make the sentence for that offence entirely concurrent with the sentence for the assault occasioning actual bodily harm. I would not have done so except for that consideration." 40 I can discern no error in this approach. The applicant has demonstrated a particularly violent disregard for the victim of this assault on previous occasions in previous assaults. There can be no argument that it was very serious. The injuries that were sustained were viciously inflicted and presumably will remain permanently cosmetically significant. The victim was kicked in the face repeatedly. I have no difficulty in these circumstances accepting that a starting point of 4 years imprisonment was appropriate. 41 In my opinion the sentences imposed were not manifestly excessive. Orders 42 I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal. ********** 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.