New South Wales Court of Criminal Appeal CITATION: R v Miria [2009] NSWCCA 68 HEARING DATE(S): 13 February 2009 JUDGMENT OF: Grove J at 1; Blanch J at 30; Latham J at 31 EX TEMPORE JUDGMENT DATE: 13 February 2009 DECISION: Crown appeal allowed. Respondent resentenced. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeal asserting inadequacy - Error by judge refusing to reflect general deterrence - Not mitigatory if offender does not seek to have plea of guilty to lesser offence when not disputing guilt of offence charged - Crown submission of inadequacy upheld LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment R v MAK & MSK [2006] NSWCCA 398 R v Radich (1954) NZLR 86 R v Rushby (1977) 1 NSWLR 594 CASES CITED : R v Sayin [2008] NSWCCA 307 R v Scognamiglio [1991] 56 A Crim R 81 R v Wong & Leung (1999) 48 NSWLR 340 Veen v The Queen (No 2) (1987-8) 164 CLR 465 PARTIES: REGINA - Appellant Lionel Timothy MIRIA - Respondent FILE NUMBER(S): CCA 2008/11958 COUNSEL: V Lydiard - Appellant/Crown G R Heathcote with B Brassil - Respondent SOLICITORS: Solicitor for Public Prosecutions - Appellant Burridge & Legg - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11958 LOWER COURT JUDICIAL OFFICER: Williams DCJ LOWER COURT DATE OF DECISION: 7 November 2008 IN THE COURT OF CRIMINAL APPEAL 2008/11958 GROVE J BLANCH J LATHAM J 13 February 2009 REGINA v Lionel Timothy MIRIA Judgment 1 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentence imposed by Williams DCJ in Sydney District Court. Following a plea of guilty in the Local Court the respondent was committed for sentence on a charge of maliciously inflicting grievous bodily harm with intent contrary to s 33 of the Crimes Act 1900. The prescribed maximum penalty for that offence is 25 years imprisonment and attached is a standard non-parole period of 7 years. His Honour sentenced the respondent to imprisonment for 2 years which was suspended upon the respondent entering a recognizance with conditions to be of good behaviour for 2 years. Although not the subject of the Crown notice of appeal it can be mentioned that the respondent was called up by his Honour for breach of a recognizance granted at Manly Local Court on 23 January 2008. The breach was admitted and for an offence of common assault upon which the respondent had been found guilty at the Local Court his Honour sentenced the respondent to perform 200 hours community service. The offence which is the subject of this appeal occurred on 26 April 2008. 2 An agreed statement of facts was tendered and his Honour stated that he would not read out the content as he did not think that it was necessary. As an abbreviated summary he stated: "The situation is that on 26 April in the very early hours of the morning the victim was attempting to leave the New Brighton Hotel at Manly. In opening the door to go outside he bumped into the shoulder of another person with whom there was some sort of confrontation. That other person was taken outside by security guards and then at that time Mr Miria stepped towards the victim from the victim's left side. He had a clear schooner glass in his right hand. He lifted his right hand above his head and began to swing it towards the victim, who was about half a metre away. The victim put his head down and turned towards the left to try and protect himself. He felt an immediate sharp pain in the middle of the back of his head and neck and there was a smashing sound. Mr Miria was apprehended by security guards and shortly afterwards by the police." 3 The respondent's prior record consists of three matters of common assault. The detail of two of these was in documentation tendered to the Court, although his Honour did not make express reference to it, other than to observe that previous offences had occurred in hotels in somewhat similar circumstances. He said that the offences appear to have arisen out of spontaneous reaction to relatively minor irritations. 4 Some brief reference to the prior record should be made. On 13 October 2003 at Mareeba Magistrates Court, Queensland, the respondent was ordered to pay a penalty of $300 but no conviction was recorded. On 24 November 2005 he was convicted at Manly Local Court and fined $1,000. Police were walking through a hotel at about 11.30 pm on 29 October 2005 and they saw the respondent delivering a number of punches upon a Mr Brown. Previously Mr Brown had bumped into another man while he was making his way through a large crowd in a beer garden. This person began to abuse Mr Brown and "head butted" him. The respondent rushed in and commenced to beat Mr Brown causing him to fall to the ground and he was continuing so to do when police saw what was happening and the respondent was restrained by them and by hotel security staff. 5 On 23 January 2008 again at Manly Local Court he was fined $1,500 and ordered to enter the recognizance which has been mentioned. At about 10.50 pm on 23 December 2006 the respondent was drinking in a hotel. A bar attendant asked a friend of his to leave the premises. The respondent spoke to the bartender about this, in the course of which he reached over the bar and punched him with his fist, as a result of which the bartender's spectacles were broken but he sustained no personal injury. 6 The Crown submissions in support of the ground contend that two specific errors were revealed in his Honour's remarks on sentence and it is convenient to deal with these. 7 First, his Honour stated: "The general deterrent effect of any sentence is debatable, given that it will at best be published as a statistic and thus unlikely to cause anyone else to act differently." 8 The implication of that statement is that his Honour did not incorporate any reflection of general deterrence among the elements constituting his sentence assessment. Such omission was erroneous. The position at common law was described as well stated and often cited by Street CJ in R v Rushby (1977) 1 NSWLR 594 referring to the judgment of the Court of Appeal in New Zealand in R v Radich (1954) NZLR 86 from which the Chief Justice extracted these observations: "….one of the main purposes of punishment …is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment" ( Rushby at p 597). 9 This concept was similarly affirmed by the High Court of Australia in the joint judgment (Mason CJ, Brennan, Dawson and Toohey JJ) in Veen v The Queen (No 2) (1987-8) 164 CLR 465 at 476: "The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend , retribution and reform". 10 The emphases are added. 11 It is true that the remark by Williams DCJ concerning debatability has precedent but there is no authority permitting a judge to dismiss general deterrence as a factor for sentence assessment. Of course, in circumstances which are found to be appropriate a particular offender may not be a suitable vehicle for manifesting general deterrence, for example if a mental condition disables the offender from appreciating the level of his wrongdoing: cf R v Scognamiglio [1991] 56 A Crim R 81. Nothing attracting that kind of consideration was suggested to be the case in this instance. 12 The respondent relied upon the opening words of Spigelman CJ in an extract from R v Wong & Leung (1999) 48 NSWLR 340 where his Honour said (at 363): "There are significant differences of opinion as to the deterrent effect of sentences, particularly, the deterrent effect of marginal changes in sentence. Nevertheless, the fact that penalties operate as a deterrent is a structural assumption of our criminal justice system. Legislation would be required to change the traditional approach of the courts to this matter." 13 Although the remarks of Williams DCJ echoed the initial observation of the Chief Justice, he did not heed the important qualification which recognized the legal imperative to include general deterrence in sentence assessment. 14 In fact, as the Crown submissions observe, legislation has been passed subsequent to that statement and by its mandate it has resolved the debate so far as this State is concerned by declaring that a purpose for which sentence may be imposed is specifically "to prevent crime by deterring the offender and other persons from committing similar offences" : Crimes (Sentencing Procedure) Act 1999 s 3A (b). 15 The Crown's submission that his Honour erred in this regard should be sustained. 16 The facts of the offence by the respondent reveal that his actions are in a category which has already attracted comment in this Court and it is apparent that this is a case in which the need to include an element of general deterrence looms large. 17 In Sayin v R [2008] NSWCCA 307 Howie J stated: "The offence, popularly known as 'glassing', is becoming so prevalent in licensed premises that there are moves on foot to stem the opportunity for the offence to be committed by earlier closing times and the use of plastic containers. The courts clearly must impose very severe penalties for such offenders, but of course within the limits afforded by the prescribed maximum penalty." 18 The second contention by the Crown focussed upon the remarks on sentence of Williams DCJ when his Honour said: "In my view he is entitled to the maximum discount for his plea of guilty at the earliest opportunity, particularly having regard to the fact that there was no attempt to plea bargain this matter down to perhaps a s 35 offence and thus incur a lesser penalty. He is to be given credit for that." 19 As earlier observed the respondent pleaded guilty in the Local Court and that early plea entitled him to a significant reduction of term for what has come to be expressed as the "utilitarian" value of the plea. It is possible that his Honour's reference to the absence of attempt to bargain for a plea to a lesser offence was an abbreviated expression of a finding of remorse by reason of a perceived weakness in the Crown case and the plea of guilty in the light of such weakness and it was from those circumstances that there should be a grant of credit. A discount for a plea of guilty for utilitarian value should not take into account remorse and like subjective matters: R v MAK and MSK [2006] NSWCCA 398. 20 It may be difficult for a prosecution to prove intent where the injuries are towards the lower end of a scale of seriousness, however there is no issue about the circumstance that the victim in fact suffered grievous bodily harm and by his plea of guilty the respondent acknowledged his intention to inflict it. 21 Although it may be possible to interpret his Honour's remarks as abovementioned, in a literal sense it is not a matter of mitigation that an offender does not seek to have a prosecution accept a plea of guilty to a lesser offence than the offence charged when the offender acknowledges all the elements of it. In that light the Crown contention should be sustained. 22 Those errors attract the power of this Court to intervene. In short summary, the respondent appeared for sentence for an offence by which he caused the victim grievous bodily harm and he intended to cause injury at that level. His offending was aggravated by the currency of a recognizance entered into in respect of an offence involving violence. The statutory guideposts were a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years as abovementioned. In any event, allowing for all the aspects of the strong subjective matters found by his Honour, a sentence of 2 years imprisonment suspended from operation is so far below an appropriate range for offending in these circumstances that the ground that the sentence is manifestly inadequate should be upheld. 23 The evidence indicates that the respondent may now have a motivation to address the problems which are obviously sourced in his abuse of alcohol. The content of the report by Dr Matthew Jones can be noted in this regard without pausing to recite its content. However, the Probation and Parole Report was, it must be recognized, less promising. His Honour quoted the expressed concern therein that "he has continued to commit offences of a serious nature, again whilst intoxicated". He commented that in fact there was one offence and not a number of offences but it seems clear that the officer was referring to the series of assaults including the present offence which constitutes the respondent's record. 24 A parenthetical observation was made by his Honour "whatever that means" to the officer's report where it was said: "It has been identified that cultural and family dynamics are factors which contribute to his abuse of alcohol. Whilst the methods of attending counselling appear to be constructive, Mr Miria's response to such intervention and ability to develop his strategies towards positive change remain contentious." 25 In the context of the report which concluded in the paragraph from which the above extract is taken with the statement "if Mr Miria is to be a law abiding member of the community, he will need to realistically address and resolve his personal issues and alcohol abuse", the queried statement, whilst the jargon may be unfortunate, must surely simply seek to convey that whether the respondent can restrain himself from further alcohol fuelled offences is unpredictable. 26 The respondent should have an opportunity to pursue rehabilitation and to that end I would extend the balance of term of sentence beyond the statutory proportion so that this can be done, preferably under supervision whilst the respondent is on parole. I would formally find special circumstances. 27 The offence was spontaneous and, fortunately, the level of grievous bodily harm was not high and I would categorize the offence at lower than mid-range for such offences. Nevertheless the statutory maximum and the standard non-parole period above noted remain significant. The commission of the offence whilst on recognizance is an aggravating factor and the respondent's prior record of offences, particularly as they involve assaults, although of lesser seriousness than the present offending, acts as a counter to the grant of special lenience. 28 As is well established, the allowing of a Crown appeal against sentence is a circumstance giving rise to restraint on resentence and the new imposition is likely to be less than would have been appropriately imposed at first instance. Resentence will, of course, allow the discount for early plea of guilty as found there. 29 I propose the following: (1) Crown appeal allowed. (2) Sentence imposed in the District Court quashed. (3) In lieu thereof the respondent sentenced to imprisonment consisting of a non-parole period of 2 years commencing on 13 February 2009 and expiring on 12 February 2011 with a balance term of 2 years commencing on 12 February 2011. (4) The earliest date of eligibility for parole is specified as 12 February 2011. 30 BLANCH J: I agree. 31 LATHAM J: I agree. 32 GROVE J: The orders of the Court will be as I have proposed. ********** 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.