Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Stunden [2011] NSWCCA 8 Hearing dates: 8 December 2010 Decision date: 11 February 2011 Before: Simpson J at 1 Blanch J at 9 Garling J at 10 Decision: (1) Appeal allowed. (2) Set aside the sentence imposed in the District Court of NSW on 27 August 2010 in respect of the offence against s 33(1)(b) of the Crimes Act. (3) Mr Stunden is sentenced to a non-parole period of 2 years 6 months to commence from 3 September 2010, with the balance of the sentence being 2 years. The total sentence will conclude on 2 March 2015. (4) The first day upon which Mr Stunden will be eligible for release to parole is 2 March 2013. Catchwords: CRIMINAL LAW - Appeal against sentence - Appeal by Crown - Whether sentencing judge erred in making factual findings on the circumstances of the offence - Whether offender was provoked by the victim - Whether sentencing judge failed to take into account the need for personal and general deterrence - Whether no special circumstances found for departing from the statutory ratio between the non-parole period and the balance of sentence - Whether sentence is manifestly inadequate - Whether inappropriate for sentence to be served by periodic detention. Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110 Douar v R (2005) 159 A Crim R 154 House v The King (1936) 55 CLR 49 Mirza v R [2007] NSWCCA 248 Mulato v R [2006] NSWCCA 282 Mulato v R [2006] NSWCCA 282 R v AJP [2004] NSWCCA 434 R v AS [2006] NSWCCA 309 R v Burgess [2006] NSWCCA 319 R v Cheh [2009] NSWCCA 134 R v Davies [2004] NSWCCA 319 R v Hallocoglu (1992) 29 NSWLR 67 R v Hamieh [2010] NSWCCA 189 R v JW [2010] NSWCCA 49 R v Knight; R v Vivanua (2007) 176 A Crim R 338 R v Lombard (2008) 184 A Crim R 565 R v McEvoy [2010] NSWCCA 110 R v Mitchell; R v Gallagher (2007) 177 A Crim R 94 R v Mitchell; R v Gallagher (2007) 177 A Crim R 94 R v Way (2004) 60 NSWLR 168 Category: Principal judgment Parties: Regina (Applicant) Ryan Peter Stunden (Respondent) Representation: Counsel: V. Lydiard (Applicant) M. Austin (Respondent) Solicitors: Department of Public Prosecution (Applicant) Legal Aid New South Wales (Respondent) File Number(s): CCA 2009/198594 Decision under appeal Jurisdiction: 9101 Citation: Regina v Ryan Peter Stunden Date of Decision: 2010-08-27 00:00:00 Before: Finnane DCJ File Number(s): 2009/198594 Judgment 1SIMPSON J : I have read in draft the judgment of Garling J and agree with the orders he proposes, and, substantially, with his reasons. 2I depart from his Honour's approach in respect of ground 3. In that ground, the Crown complains that Finnane DCJ erred in making a finding that the respondent was provoked. The only reference in the Remarks on Sentence to provocation appears in that part of the Remarks in which Finnane DCJ dealt, for the purposes of Part 4, Div 1A of the Crimes (Sentencing Procedure) Act 1999, with where the offence fell in the range of objective gravity of offences of its kind. His Honour said: "His was a sudden and violent response, no doubt to some extent provoked by days of taunting. It was an unnecessary and absurd response, but it was sudden, it was violent and it stopped." 3Garling J reads this as a finding of provocation as a mitigating circumstance as provided by s 21A(3)(c) of the Crimes (Sentencing Procedure) Act . 4I disagree. In my opinion, Finnane DCJ was merely reciting factual and historical matters that he found established. In place of the words "provoked" he might just as well have used "motivated". That, on a fair reading of the Remarks, in my opinion, is what his Honour had in mind. Indeed, nowhere does his Honour refer to s 21A, either with respect to aggravating features or mitigating features (although, quite properly, he took into account that the offence was committed while the respondent was subject to conditional liberty, and this is clearly spelled out in s 21A(2)(j) as an aggravating feature). Further, the finding, to the extent that it was a finding of provocation, is qualified by the preceding words "no doubt to some extent". 5This indicates to me that only very modest weight was given to the suggestion that the respondent's culpability for the offence was mitigated by the finding of provocation. 6I do, however, agree that the evidence to support "days of taunting" was very limited indeed. 7In my opinion, this appeal can be decided without reference to what is asserted to have been a finding, for the purposes of s 21A(3)(c) of provocation. The consequences of the respondent's conduct are so severe as to call for a full-time custodial penalty of some length. 8I am of the opinion that the sentence proposed by Garling J is appropriate. 9BLANCH J: I agree with Garling J. 10GARLING J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed in the District Court by his Honour Judge Finnane on 27 August 2010. 11The respondent, Mr Ryan Stunden, was charged with one count of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900, and with one count of larceny contrary to s 117 of the Crimes Act . An offence of possession of 0.4g of cannabis was also referred to the sentencing judge. 12The offences related to an altercation between Mr Stunden and the victim, RJ, who was then almost 16 years old, on the afternoon of 18 August 2009 outside Jannali High School. 13Mr Stunden pleaded guilty to the offences. 14The maximum penalty for the s 33 offence is 25 years imprisonment, with a standard non-parole period of 7 years. 15The sentencing judge imposed the following sentences: (a) For the s 33 offence (taking into account the possession of cannabis), an overall sentence of 3 years commencing from 4 September 2010, with a non-parole period of 2 years, to be served by way of periodic detention. (b) For the s 117 offence, a fine of $500. 16The Crown appeal is directed at the sentence for the s 33 offence. Facts 17A four page statement of facts was tendered to the sentencing judge by the Crown as part of its case. 18It was indicated to his Honour that whilst the majority of the facts were agreed, there were two areas of actual dispute. They were: (a) the nature and extent of the actions of RJ, the victim, in the time which preceded the offence; and (b) whether, in the course of the altercation, Mr Stunden had kicked RJ, and if he had, whether those kicks had caused any injury. 19Accordingly, in addition to their statements, the victim RJ, and the witness D, were called to give evidence before the sentencing judge. D gave her evidence by means of closed circuit television. The respondent, Mr Stunden, also gave evidence. 20It therefore fell to Finnane DCJ to make findings of fact on the contested issues. I will refer to these findings in due course, but the following facts were not in dispute and fell to be considered as part of the Crown case on sentencing. 21In early 2009, Mr Stunden and Ms Amie Thrupp ended their five year relationship. Ms Thrupp then commenced a relationship with RJ. As at August 2009, that relationship had been in place for about five months. Mr Stunden was upset about the break-up and the fact that Ms Thrupp had taken up with someone else. 22On 18 August 2009, at about 3pm, RJ departed Jannali High School, where he was a student, and met with some friends on Jannali Oval, which is adjacent to the school. About 10 minutes later, RJ and his friends left the oval and headed in different directions. RJ, who was riding a pushbike, headed towards a carpark at the edge of the oval. 23While RJ was riding his bike along the grassed area of the carpark, he encountered Mr Stunden. A fight ensued. 24In the course of the fight, Mr Stunden took a silver and black Nokia mobile phone from RJ. He then made a call to Ms Thrupp and said: " Go and have a look at your boyfriend now ." 25The fight was witnessed by D, a student at Jannali High School who was about 13 years old at the time. A teacher from the school, Ms Karen McCulloch, saw Mr Stunden leaving the scene of the fight. She called 000 and waited with RJ until an ambulance arrived. 26RJ suffered significant facial and eye injuries, which in summary included: (a) vitreous haemorrhage and choroidal rupture to his right eye; (b) a comminuted fracture of the right maxillary sinus on both the anterior and medial walls; (c) a comminuted fracture to the floor of the right eye with a displaced fragment of bone angulating forward; (d) multiple areas of gas were noted in the right orbit and a fracture line was seen extending to the lateral orbit wall; (e) an undisplaced fracture to the nasal bone; and (f) a wound to the right eyebrow which required suturing. 27These injuries were consistent with RJ receiving severe and multiple blows to his face. He has suffered substantial permanent loss of vision to his right eye as a result. That eye is now effectively blind. 28During the fight, Mr Stunden suffered a wound to his hand, which became infected and was treated with antibiotics at St George Hospital on 21 August 2009. 29On 29 August 2009, Mr Stunden was arrested by police and charged. He was granted bail. Further Factual Findings 30As I have earlier indicated it was necessary for Finnane DCJ to make findings about contested issues of fact. 31Mr Stunden and RJ had conflicting accounts as to how they both came to be at the carpark area that afternoon, and as to how precisely the fight started. 32The first finding of fact which the sentencing judge made was that, although RJ had known who Mr Stunden was for several years, having attended the same school but in a lower grade, Mr Stunden did not know who RJ was until the encounter at the carpark. 33The second finding of fact was that while he was at work, Mr Stunden received a phone call on the afternoon of 18 August 2009, either from RJ or his friends. His Honour accepted Mr Stunden's evidence that: (a) RJ or someone on his behalf boasted to Mr Stunden that RJ was in a sexual relationship with Ms Thrupp; and (b) he only knew where to go to confront RJ because, in the course of the phone call, someone said the following words " If you think you're so tough, come to the high school ." Mr Stunden then drove from his workplace to the school, which was a few minutes down the road, and stopped at the carpark next to the oval. 34The third finding of fact was that, when RJ saw Mr Stunden standing in the carpark, he initiated the fight by jumping off his bike and pushing it at Mr Stunden thereby provoking him. 35The fourth finding of fact was that, despite his subsequent denials, Mr Stunden kicked RJ a number of times during the fight. Subjective Features 36Mr Stunden was born on 26 November 1989, and was 19 years old at the time of the offence. He is almost four years older than RJ, who was five days short of his 16 th birthday on the day of the assault. 37Mr Stunden had previously been convicted on 30 September 2008 of assault and damage to property in July 2008, in respect of a man who had been living with Mr Stunden's mother. He received a 12 month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act , and was still within the period of the bond when he committed this offence. 38About one month before the subject offence, Mr Stunden was charged, on 18 July 2009, with possession of a prohibited drug, and on 29 October 2009 was given a 12 month bond under s 10 of the Act, on the condition that he undergo psychiatric counselling and take medication as prescribed. 39Mr Stunden had left home at the age of 14 because of conflicts there. He says that at the time of the offence he was very angry about the fact that Ms Thrupp was in a relationship with another man. His Honour accepted that prior to the offence, Mr Stunden did not know the identity of this other man other than by a pseudonym, "Jets", which was painted as a graffiti tag in many places in the Jannali area. 40After the offence and prior to the sentencing, Mr Stunden had been reconciled to his mother and lived with her. He has worked full-time since he left school and the evidence both at the sentencing hearing and before this Court is that he is and has been well regarded by his various employers. 41At the sentencing hearing, Mr Stunden led evidence from chaplains in the Salvation Army that he regularly assisted in their activities in supporting the homeless on Friday and Saturday evenings. 42There was also evidence that Mr Stunden had, by his own motion, got himself free from his prior addiction to cannabis, and had also overcome a previous problem with alcohol. He had gone regularly to see a psychologist at an organisation known as Life Resolutions to receive anger management counselling. 43Mr Stunden acknowledged to the sentencing judge and to his probation officers that what he did to RJ was terribly wrong and that he could not repair the damage he had done. Several character references were also tendered at the hearing, from people who had known Mr Stunden for a number of years, all of which say that his actions on 18 July 2009 were out of character. The Sentencing Judge's Remarks on Sentencing 44The sentencing judge found that the offence was less than a mid-range offence, but noted that it was not a "trivial" offence. 45His Honour listed the following by way of aggravating features: (a) Mr Stunden committed the offence during the term of his good behaviour bond, which was itself imposed for an offence of violence. (b) RJ's injuries were extremely serious and lifelong. His Honour further noted that " he has experienced a great deal of pain and is likely to experience more pain throughout his life ". 46His Honour listed the following by way of mitigating features: (a) No weapons were used; (b) Mr Stunden was called to the place of the fight by RJ. In particular, his Honour found that RJ " was arrogant and was someone who wanted a confrontation "; (c) When RJ pushed his bike at him, he " just lost all control and gave the boastful fifteen year old an enormous beating ". His Honour also found that " his was a sudden and violent response, no doubt to some extent provoked by days of taunting "; (d) He is someone who had acted, most of the time, in a decent and law abiding fashion. He has worked hard, and is a good employee; (e) He has taken positive steps for rehabilitation, and has demonstrated clear evidence of remorse. In this regard his Honour placed significant weight on a letter from Major Hilton Harmer of the Salvation Army, who has had a great deal of experience working with offenders. His Honour also noted during submissions (T42.15): "[Mr Stunden] has made very considerable efforts to rehabilitate himself, much more than I have encountered, I have got to say, in any earlier case and I've been here for ten years. I can say that totally certainly." 47Based on these circumstances his Honour determined a sentence of 4 years imprisonment, before imposing a 25 per cent discount for the early plea, leaving a sentence of 3 years imprisonment. 48His Honour then said this: "The Probation and Parole Service has said he is eligible for periodic detention and I propose to order that he serve that sentence by way of periodic detention. I also intend to provide for a two year non-parole period." 49As can be seen his Honour did not set out any reasons for consideration that periodic detention was appropriate. His Honour did not make any specific finding of the existence of special circumstances when fixing the non-parole period. Grounds of Appeal 50The Crown appeals on the ground that the sentence was manifestly inadequate. The Crown also relies on the following additional grounds of appeal: "(1) His Honour erred in failing to properly evaluate the objective seriousness of the respondent's conduct. (2) His Honour erred making a bare finding that the objective seriousness of the s 33 offence was less than mid-range and in failing to give an indication of how far below mid range it fell. (3) His Honour erred in making a finding that the respondent was provoked. (4) His Honour erred in failing to take into account the need for both personal and general deterrence. (5) His Honour erred in varying the statutory ratio without a finding of special circumstances. (6) His Honour erred in imposing a sentence of periodic detention." Applicable Principles for Crown Appeals on Sentence 51Section 5D of the Criminal Appeal Act provides: "5D Appeal by Crown against sentence (1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper. ...". 52Section 68A of the Crimes (Appeal and Review) Act 2001 further provides: " 68A Double jeopardy not to be taken into account in prosecution appeals against sentence (1) An appeal court must not: (a) dismiss a prosecution appeal against sentence, or (b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate, because of any element of double jeopardy involved in the respondent being sentenced again. (2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal." 53In R v JW [2010] NSWCCA 49 at [95], Spigelman CJ (Allsop P agreeing, McClellan CJ at CL, Howie and Johnson JJ agreeing on this point) said this in regard to s 68A: "... s 68A, whilst removing the double jeopardy element from the exercise of the discretion to intervene, leaves other aspects untouched. On this basis, there remains a residual discretion to reject a Crown appeal, notwithstanding the abolition of the double jeopardy principle. The Court of Criminal Appeal must continue to recognise in a real and practical way the Crown's responsibility for the proper administration of the criminal justice system." Ground 3 54It is convenient to commence a consideration of the appeal with the issue raised by ground 3. 55The Crown appeal on this ground was on the basis that Finnane DCJ erred in making a factual finding that the respondent, Mr Stunden, was provoked. 56Since the Crown challenges this factual finding, in order to succeed on such a challenge, the Crown must show that the sentencing judge was in error in entertaining a reasonable doubt as to the version of the facts contended for by the Crown: Director of Public Prosecutions (NSW) v Lombard [2008] NSWCCA 110 at [31] per Basten JA (Barr and Buddin JJ agreeing). 57The issue of provocation was a contested one on the sentencing hearing. At page 9 of his remarks on sentence, Finnane DCJ, in dealing with the issue of provocation and its relevance, said this: "In my opinion, this is an offence which is less than a mid-range offence, although the consequences were extremely grave. It is less than a mid-range offence, I think, because no weapons were used and, as I would see it, the offender was called to the place by the victim." 58In further describing the circumstances that fell within the description of provocation, the sentencing judge said this: "He did not lay in wait for the victim. He did not know to go there except that the victim called him to go there. It was when the victim came and somewhat arrogantly attempted to hit him with a bike, that in my opinion he lost control. ... His was a sudden and violent response, no doubt to some extent provoked by days of taunting. It was an unnecessary and absurd response, but it was sudden, it was violent, and it stopped." 59The conclusions which the sentencing judge there expressed relate to some earlier findings in his judgment. At page 2 of his remarks on sentence, his Honour said: "The next point of contention is this. Did [RJ] arrange to meet the offender by ringing him up, boasting that he was having sex with his girlfriend, and telling him that he would be at this park, or did the offender himself, by some other process, come to know that [RJ] would be at this point in this park on this day and go there with the purpose of meeting him ... I consider what happened was that [RJ] or perhaps someone on his behalf, rang the offender for the specific purpose of boasting to him that [RJ] was having sex with Mr Stunden's girlfriend. Anybody doing such a thing would have to be a person who was arrogant and someone who was wanting a confrontation. I consider that [RJ] was arrogant and was someone who wanted a confrontation. ... When he received this boastful phone call, the offender became very angry ..." 60It can be seen that his Honour's conclusion of provocation depends upon a number of factual findings. They were: (a) that in the days leading up to the offence, because of either a number of phone calls or other communications, which amounted to " ... days of taunting ... ", Mr Stunden was entitled to have the view that the victim RJ was having a relationship with his former girlfriend and was wanting to boast to him about that fact; (b) on the day of the offence, Mr Stunden received a telephone call as a result of which he attended at the park; and (c) the confrontation occurred when the victim RJ dismounted from his bicycle and in some way thrust it towards Mr Stunden, causing Mr Stunden to "lose control". 61It is appropriate to note an issue of importance which relates to provocation. The provocation here under discussion is that described as a mitigating factor in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act . The terms of that section are " the offender was provoked by the victim ". Unless conduct which fits within these terms is found by the Court, then Mr Stunden is not entitled to the benefit of this provision. 62Against the background of this statutory provision it is convenient to assess the finding on the first factual allegation which Finnane DCJ was satisfied amounted to provocation. That is, the assertion that in the days leading up to the assault there had been provocative conduct which affected Mr Stunden. 63The statement of facts which was tendered contained no material which dealt with the events leading up to the day of the offence. 64The Crown then relied upon these facts in support of this ground: (a) RJ denied in the course of his evidence-in-chief that he had made any attempts to communicate with Mr Stunden in the days leading up to the attack; (b) RJ was not cross-examined in any way which challenged his denials about his conduct in the days leading up to the attack; (c) Mr Stunden gave no oral evidence about any conduct in the days leading up to the attack. 65The oral evidence before his Honour did not support the existence of phone calls or like communications in the days leading up to the day of the assault. When cross-examined Mr Stunden denied receiving any phone calls prior to the day of the assault. In re-examination, Mr Stunden reaffirmed his evidence that he received only one "harassing" phone call which was on the day of, but before, the assault. 66The evidence upon which it seems his Honour relied, in addition to such observations of demeanour as he made of those who gave evidence, comes from two sources. The first is a letter of a psychologist, Mr Joel Curtis, of Life Resolutions, which seems to be dated 1 June 2010, in which Mr Curtis records the following: "Mr Stunden reported that he was being harassed on the phone by his ex-girlfriend's new boyfriend. He stated he was becoming significantly upset and distressed by these phone calls. He reported that he lost control of his emotions and confronted the person on the phone face to face." 67The second source is from the pre-sentence report of 10 June 2010, prepared by the Probation & Parole Service. That report included the following: "The offender reported that his offending behaviour was a reaction to what he and his mother described as being significant provocation by the victim by way of text phone messages and images regarding the offender's former long term girlfriend, and her relationship with the victim. The offender also alleges that contained within such messages was a challenge for him to partake in a physical fight with the victim. The offender's mother stated that the above taunts by way of messages and images were designed to hurt and humiliate the offender, and that they had the desired effect." 68Neither of the parties applied to the Court below for, and the Court did not make, a direction that the law of evidence applied to the sentencing proceedings. Accordingly, the provisions of the Evidence Act 1995 did not apply: s 4(2)(a) Evidence Act. 69Although the accounts which I have set out in paragraphs 66 and 67 are hearsay, the judge was nevertheless entitled to have regard to them. However, the question of the weight to be allocated to these accounts, was a matter which required careful attention. 70In relying upon that evidence, his Honour needed to have regard to a number of matters: (a) when he gave evidence, Mr Stunden was not asked to, nor did he at any time, verify the accuracy of the history which he gave to either of the authors of the reports; (b) whilst the history contained in the report of Mr Curtis attributes Mr Stunden's actions to more than one phone call occurring, Mr Stunden specifically rejected this version of the facts in cross-examination asserting that there was only one phone call; and (c) the history recorded in the Probation and Parole Report, seems to be a combined history taken from both Mr Stunden and his mother. It contains interpretation and opinion as well as an account of the facts, the detail of which Mr Stunden did not recount when giving evidence. 71Each of the matters to which I have just referred were important matters to be considered by his Honour in deciding what the facts were which underlay Mr Stunden's offending. His Honour's analysis does not seem to have expressly considered these matters. 72His Honour's conclusion, that one feature of the facts and circumstances which he found to have been proved, to which he was entitled to have regard, as constituting provocation, and hence a mitigating factor (s 21A(3)(c), Crimes (Sentencing Procedure) Act ), was the events on the days leading up to (but not including the day of) the assault, was, as I have indicated, challenged by the Crown. 73I have concluded that the challenge to the finding of these events has been made good for these reasons: (a) his Honour's findings and reasons do not make it clear what the evidence was that his Honour relied upon, particularly given that Mr Stunden's own evidence before his Honour denied the existence of these events; (b) the only evidence which would have been a sufficient basis for his Honour's finding was the history given to the Probation and Parole Service, which having regard to its form and content was not sufficiently probative to outweigh the direct sworn evidence to the contrary which was before his Honour; and (c) it was not open to his Honour to find that the factual evidence, even if accepted, amounted to provocation within the meaning of that term in s 21A(3)(c) Crimes (Sentencing Procedure) Act , because it was not claimed or found by his Honour that the events over those days was conduct by the victim RJ as required by the legislation. His Honour's findings did not, as they needed to, specify who actually undertook the conduct. 74The Crown also challenged the other two findings of fact relating to provocation to which I have referred in para 60 above. 75There was evidence to support the finding that Mr Stunden received a telephone call which took him to the park where he met RJ. Mr Stunden himself gave that evidence and said that the phone call included a person who was likely to be RJ speaking to him. As well, the phone call was the most compelling reason to explain how Mr Stunden came to be at the carpark at the oval adjacent to Jannali High School at a time when RJ was also there. There was no other evidence which could have explained how the meeting came about. His Honour's finding on this issue was not only open to him but, in my opinion, was correct. 76Since this evidence explained how Mr Stunden attended at the location where the fight occurred, his Honour was entitled to have regard to it as one of the relevant facts when assessing both the objective seriousness of the crime and the subjective features of Mr Stunden's criminality. 77The final factual finding which is challenged is that concerning the way in which the fight started. The Crown submitted that the sentencing judge ought to have rejected the account given by Mr Stunden in evidence, which was that RJ had started the encounter, because it was inconsistent with another account given by Mr Stunden to Dr Knight at the St George Hospital within a few days of the event, and also because the account was inconsistent with the evidence given by RJ to the sentencing judge. 78The Crown submitted to this Court that Mr Stunden was an unreliable witness whose evidence had not been wholly accepted by his Honour, particularly on the issue of whether Mr Stunden had kicked the victim RJ, as well as punching him. As well, the Crown submitted that Mr Stunden's evidence was likely to be unreliable because, as he himself had conceded, he had lost his temper and his self-control when he encountered RJ, and hence it was submitted, he was unlikely to clearly remember what occurred. 79All of these matters were put in argument before the sentencing judge. They were all matters to which he was entitled to give weight. What weight he gave them was a matter for him. I am not persuaded that the finding about the initiation of the fight was one which was not open to his Honour. I acknowledge the persuasive force of the criticisms made by the Crown of this finding of fact, however, it is not for this Court to simply substitute a different finding of fact which it prefers. To do so would not be consistent with the principles discussed in Lombard . 80In the result, I am persuaded that the Crown's challenge to one of the factual findings has been made good, but not to the other findings. To the extent that this particular conclusion of fact grounded the finding of provocation, the Crown has established error. 81However, the remaining two factual findings, namely: (a) that Mr Stunden was summoned to the oval by the victim RJ; and (b) that the fight was initiated by RJ thrusting his bike at Mr Stunden who thereby lost control and hit RJ; have not been demonstrated to be in error and were, as I understand the evidence, correct. 82But the question relevant to this ground of appeal is whether these two facts were adequate, in the absence of the earlier finding of fact which was, I have found, erroneous, to explain and ground a finding of provocation of Mr Stunden, as that term is used in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act . 83The factual finding that the fight between RJ and Mr Stunden was initiated by RJ when he thrust his bike at Mr Stunden who thereby lost control and hit RJ was sufficient for a finding of provocation at least as the fight initially unfolded. What occurred was that Mr Stunden, as the sentencing judge found, did suddenly lose control and responded initially with a punch which the sentencing judge regarded as a proportionate response. The phone call summonsing Mr Stunden to Jannali Oval was the preliminary step to the outbreak of the fight, and in this case, is appropriately to be viewed in that light. 84However, the sentencing judge found that the fight involved not just the throwing of punches by Mr Stunden, but also the kicking of RJ, the victim, " ... a number of times ...". The evidence did not enable his Honour to be any more precise in finding how many times the victim was kicked. His Honour seems to have regarded this conduct as not being a proportionate response to what occurred, because he described what happened as " ... an enormous beating ..." which he also described as " ... an unnecessary and absurd response ...". 85Accordingly, a finding of provocation by the sentencing judge was supported by the facts and correct. But, that finding goes only to the events leading immediately up to, and the commencement of, the fight and not to the entirety of the conduct to which his Honour seemingly had regard. 86Whilst this ground of appeal succeeds in part, the question of the weight to be accorded to the more limited finding of provocation than the one made by his Honour will be considered later in this judgment. Grounds 1 and 2 87These grounds deal with the evaluation by the trial judge of the objective seriousness of Mr Stunden's conduct, and claim that the judge ought to have made a reasonably precise assessment of that conduct by comparison with the mid-range of objective seriousness. 88It is submitted that his Honour erred in failing to properly evaluate the objective seriousness of Mr Stunden's conduct. 89In his remarks on sentencing, his Honour said: "The law provides that there is a standard non-parole period of 7 years for this offence and a maximum sentence of 25 years. I am required by law to assess whether this is a mid-range offence, a more than mid-range offence, or less than a mid-range offence ... In my opinion, this is an offence which is less than a mid-range offence, although the consequences were extremely grave. It is less than a mid-range offence, I think, because no weapons were used and as I would see it the offender was called to the place by the victim. He did not lay in wait for the victim. He did not know to go there except that the victim called him to go there. It was when the victim came and somewhat arrogantly attempted to hit him with a bike that in my opinion he lost control. His offence has to be different from someone who plans to injure someone and who sets upon someone. It has to be regarded as different from someone who uses weapons to set upon someone. His was a sudden and violent response no doubt to some extent provoked by days of taunting. It was an unnecessary and absurd response, but it was sudden, it was violent, and it stopped ... I therefore regard this is a less than mid-range offence. That does not mean it is a trivial offence or no offence at all. It means it is less than mid-range, it means that if I came to that conclusion at a trial I would regard myself as entitled to impose less than a sentence of 7 years imprisonment as a non-parole period without regard to any other factor. In coming to that conclusion, I have of course taken into account that the offence occurred during a time that he was on a section 9 bond. The fact that he was on such a bond makes it more serious than if he were on no bond at all, particularly since the bond was for an offence of violence." 90In considering the making of the finding of objective seriousness, a critical focus for the sentencing judge, in light of the nature of the offence to which Mr Stunden had pleaded guilty, was: "Not only upon the objective seriousness of the particular offence before the Court, but also upon the abstract, or putative, offence in the middle of the range of objective seriousness, in respect of which the standard non-parole period is specified." See R v Way (2004) 60 NSWLR 168 at 185 [72]. 91It is to be remembered that a sentencing judge's assessment of where a particular instance of offending stands is a matter upon which minds might reasonably differ. Generally this court would not interfere in that assessment unless it was clearly erroneous: Mirza v R [2007] NSWCCA 248 at [16] per Howie J. 92This Court in Mulato v R [2006] NSWCCA 282 made it plain that the Court ought to be slow to interfere with the assessment made by the sentencing judge of the objective seriousness of the offending conduct. At [37], Spigelman CJ said: "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 to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised." 93I express, with respect, my agreement with the remarks of Simpson J in Mulato v R [2006] NSWCCA 282 at [46] where her Honour said: "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance." 94It is essential to keep these statements of principle in mind when considering the Crown's submissions on this ground of appeal. 95The imposition by the legislature of a standard non-parole period was intended for a middle range case where the offender is convicted after trial. A plea of guilty might be in itself a reason for departure from the standard non-parole period: See Way at [68]. However, where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board, or guide post: See Way at [122]; R v Davies [2004] NSWCCA 319; R v AJP [2004] NSWCCA 434 at [13] per Simpson J. 96In this Court, the Crown submits that his Honour's finding that this offence fell below the mid-range of objective seriousness was erroneous because the offence in question was a very serious one and ought to have been regarded as falling in the middle of the range of objective seriousness of offences of the kind covered by s 33(1)(b) of the Crimes Act . 97In so submitting, the Crown relied, both below and in this Court, upon the following matters: (a) The attack was brutal and unprovoked; (b) It represented a prolonged episode of violence; (c) It was committed against a young victim who was five days short of his 16 th birthday; (d) It included the repeated striking of the head of an obviously defenceless victim who was lying prostrate on the ground; (e) The motivation for the attack was little more than jealousy and resentment; (f) The victim was left with numerous and significant injuries, including the loss of a high a percentage of sight in his right eye which is expected to be permanent. 98In support of its submissions, the Crown drew attention to the decision of this Court in R v Mitchell; R v Gallagher (2007) 177 A Crim R 94. In so doing, the Crown submitted that there were analogies to be found between the facts in that case and this case. 99For my part, I would be satisfied that this was indeed a vicious and brutal assault, as was the case in Mitchell . The evidence upon which his Honour acted demonstrated that Mr Stunden used not only his fists, but also his feet. The attack lasted for a not insignificant period of time and ended in the victim receiving injuries of a most serious and permanent kind. The injuries were not as serious as those suffered by the victim in Mitchell. 100Whilst the attack was not unprovoked as the Crown's submissions assert, because there was correctly found to be provocation, that provocation did not adequately justify the entirety of the conduct of Mr Stunden. 101The conduct in Mitchell was found to be well above the mid-range of objective culpability. However in this case, it is clear that before the sentencing judge, the Crown submitted, in writing, that the offence fell within the mid-range of objective seriousness. In light of that concession before the sentencing judge, it is unsurprising that his Honour did not find that the decision in Mitchell was sufficiently analogous, to merit detailed consideration. 102I would not be prepared to approach this appeal, by the Crown, on any basis contrary to the considered written submission put to the sentencing judge, as the Crown's reliance in this Court on Mitchell would suggest should occur, but I would be prepared to approach this appeal upon the basis that it is open to the Crown to submit that the offence fell within the mid-range of objective seriousness, and that any lesser finding by the sentencing judge was erroneous. 103The Crown also submits that the finding by his Honour that the offence was "... less than a mid-range offence ..." needs further elaboration than that given by the sentencing judge. 104Because there had been a plea of guilty by Mr Stunden, his Honour correctly held that the standard non-parole period prescribed by the legislation did not apply. But his Honour correctly identified the importance of that standard non-parole period as a guidepost for the purpose of his sentence. To the extent that his Honour was persuaded that the offence was less than mid-range because no weapons were used and because Mr Stunden was called to the place of the offence by RJ, then such a finding was only open to him, in my opinion, if the offence was found to be only marginally less than mid-range. His Honour's remarks: " ... I therefore regard this [as] a less than mid range offence. That does not mean it is a trivial offence or no offence at all. It means it is less than mid range ..." suggest that this was what his Honour had in mind. 105The obligation of a sentencing judge is clear and is the subject of much authority in this Court: R v Burgess [2006] NSWCCA 319 at [45], R v Knight; R v Vivanua (2007) 176 A Crim R 338 at [39] per Howie J, R v Mitchell; R v Gallagher (2007) 177 A Crim R 94, at [25] per Howie J, R v Cheh [2009] NSWCCA 134 at [22], per McClellan CJ at CL, R v Hamieh [2010] NSWCCA 189 at [33]-[34]. 106That obligation of the sentencing judge is succinctly encapsulated by Simpson J, in words with which I respectfully agree, namely, "... to describe the extent or degree for which the offence departs from a notional offence in the mid-range of objective seriousness" : R v McEvoy [2010] NSWCCA 110 at [87]. 107Whilst it would have been of greater assistance had his Honour attended to providing a description of the extent or degree by which the conduct fell below the mid-range of objective seriousness, it is necessary to read the sentencing remarks as a whole and to make the appropriate allowance for the fact that his Honour's remarks were delivered orally, promptly at the conclusion of the final sentencing submissions. His Honour's finding which is to be understood in the way I have discussed, does not amount to an error of law which warrants the intervention of this Court. I am satisfied that it is a finding which was within the sentencing judge's discretion. 108This ground of appeal fails. Ground 4 109Ground 4 asserts that his Honour erred in failing to take into account the need for both personal and general deterrence. 110The Crown submits that since there was no specific reference made by the sentencing judge in his remarks on sentence to the need for either or both of personal and general deterrence, having regard to the sentence imposed, this Court ought infer that Finnane DCJ, had no regard at all to either personal or general deterrence. 111Attention to the concepts of personal and general deterrence are two of the fundamental purposes of sentencing: s 3A Crimes (Sentencing Procedure) Act . Each of the purposes enunciated in s 3A must be taken into account by a sentencing judge " ... at least to an extent that is fairly related to the facts of the given case.": R v AS [2006] NSWCCA 309, per Sully J at [25] (Mason P, Latham J agreeing). 112It is an appellable error for a judge to fail to address these fundamental purposes at all because they are each relevant to the purpose to be achieved by the imposition of a sentence: House v The King (1936) 55 CLR 499 . The weight to be accorded to these matters in the consideration of any particular sentence is one upon which minds may legitimately differ. 113I am not satisfied that this Court should make the inference urged by the Crown. There were matters relevant to the issues of both personal and general deterrence discussed by the sentencing judge in the course of his remarks on sentence. Whilst it is correct to say that his Honour did not specifically refer to the words personal or general deterrence, on a careful reading of his remarks, I cannot be satisfied that he gave these fundamental purposes no consideration whatsoever. 114This ground of appeal fails. 115However, put in another way, the Crown submission on this ground of the appeal was really that the sentence imposed by Finnane DCJ was manifestly inadequate with the result that as a sentence it did not pay appropriate attention to the purposes of personal and general deterrence. Expressed in this way, namely, as a matter of weight to be given to the purposes of the particular sentence, the submission can also be considered when addressing the issue of whether the sentence was manifestly inadequate. Ground 5 116This ground raises an issue concerning the appropriateness of the relationship between the length of the non-parole period and the parole period in the sentence imposed by Finnane DCJ, in light of the absence of any finding of special circumstances as required by s 44(2) of the Crimes (Sentencing Procedure) Act . 117The balance of the sentence imposed (1 year) represented 50% of the non-parole period which was imposed (2 years). Section 44(2) mandates that, in the absence of a finding of special circumstances, the balance of the sentence ought not exceed one third of the non-parole period which was imposed. Where a Court departs from the statutory ratio, then it must ensure that the Court's record contains a statement of reasons for so doing. 118The remarks on sentence contain no specific reference, nor any reference at all to a finding of special circumstances. Whilst there may have been facts and matters which were available to be found by the sentencing judge as special circumstances, such as Mr Stunden's relative youth and the fact that he was facing his first term of imprisonment, the absence of any reference at all to what his Honour regarded as amounting to special circumstances is an appellable error, although the sentence is not invalidated by the absence of any finding or reasons: s 44(3) of the Crimes (Sentencing Procedure) Act . 119This ground of appeal succeeds, but the outcome of the error will need to be considered in due course. Ground 6 120The Crown submits that Finnane DCJ erred in ordering that the 2 year non-parole component of Mr Stunden's sentence be served by way of periodic detention. 121In so submitting, the Crown accepts that periodic detention is not inherently a manifestly inadequate sentence for an offence against s 33(1)(b) of the Crimes Act : see R v Lombard (2008) 184 A Crim R 565. However, the Crown submits that having regard to the objective seriousness of this offence and all of the circumstances of the case, it was an error to order periodic detention. It submits that Lombard is readily distinguished. 122Serving the non-parole period of a sentence of imprisonment by way of periodic detention is recognized as being a more lenient sentence than if the entirety of the non-parole period of the sentence is served in full-time custody: Douar v R (2005) 159 A Crim R 154 at [73] per Johnson J (McClellan CJ at CL and Adams J agreeing). 123A sentence of periodic detention has a strong degree of leniency built into it and is outwardly less severe in its denunciation of the offence: R v Hallocoglu (1992) 29 NSWLR 67 at 73E per Hunt CJ at CL (Grove and Sharpe JJ agreeing). 124For the reasons which are more fully discussed later when considering whether the sentence imposed was manifestly inadequate, I have concluded that it was an error for Finnane DCJ to have ordered that the sentence be served by way of periodic detention. In short, I am of that opinion, having regard to: (a) the vicious, violent and sustained nature of the attack; (b) the age disparity between Mr Stunden and the victim; (c) the fact that Mr Stunden was on a s 9 bond relating to an offence of violence at the time; and (d) the serious and permanent effect of the injuries upon the victim; 125This ground of appeal succeeds. Manifest Inadequacy 126The Crown submits that the sentence passed was manifestly inadequate. 127Since, as I have earlier indicated, it was not an error, and it was open to his Honour, to find that the objective seriousness of this offence was slightly less than the mid-range of offences against s 33(1)(b) of the Crimes Act , it is appropriate that this Court considers the question of the manifest inadequacy of the sentence from this perspective. 128Whilst the attack did not involve the use of a weapon by Mr Stunden, and there was some provocation, ultimately, Mr Stunden's actions in punching and kicking the victim, RJ, amounted to a violent, vicious and sustained attack. 129RJ was only 15 years old (almost 16) at the time of the assault. He was about 4 years younger than Mr Stunden who was 19 years old and about 3 months away from his 20 th birthday. Thus there was a significant age disparity between Mr Stunden and RJ. 130The assault caused serious and permanent injuries to RJ. They included a number of comminuted facial fractures including one to the floor of the right eye. RJ sustained facial lacerations, one of which required suturing. Most seriously, there was a choroidal rupture in his right eye which has resulted in a significant loss of vision in that eye. RJ's statement says that he has been left with about 5% of his sight in the right eye. His Honour found that RJ was effectively blind in that eye. This is a lifelong disability. It cannot be remedied by surgery, or medical treatment. 131This injury restricts the employment choices of RJ - he can no longer pursue a career in the Royal Australian Air Force which was his aim. It restricts the sporting and recreational activities in which he can engage. In particular, RJ has ceased engaging in the activity of boxing which he had been doing 3 times per week for about 5 years. The injury will continue to affect him to some degree, in and about all of his activities of daily living. 132According to RJ's statement of 7 June 2010, his school work is also affected because he has difficulty reading the whiteboard and he finds that he tires more easily. RJ has just completed Year 11 at Jannali High School, and has entered Year 12 in 2011. He also records that he does not like being out alone at nights, and does not always feel safe when he goes out with friends at night. 133The Crown did not put in issue that Mr Stunden pleaded guilty at the earliest available opportunity and so was entitled to the maximum available discount of 25% upon any sentence of imprisonment which was imposed. 134At the time when this assault took place, Mr Stunden was the subject of three bonds to be of good behaviour for 12 months, imposed under s 9 of the Crimes (Sentencing Procedure) Act by Sutherland Local Court on 30 September 2008. These extant bonds related to an offence of common assault, and two offences involving destruction or damage of property. The breach of these bonds constitutes an aggravating circumstance when considering the appropriate sentence: s 21A(2)(j) of the Crimes (Sentencing Procedure) Act . 135By the time he came to be sentenced, Mr Stunden had been before the Sutherland Local Court on two further occasions. The first, on 29 October 2009, involved a charge of possessing a prohibited drug, for which the Court imposed a bond to be of good behaviour for 12 months, under s 10 of the Crimes (Sentencing Procedure) Act . The second, on 11 February 2010, related to a series of traffic offences, including driving whilst under the influence of alcohol and, also, negligent driving. With respect to the most serious of those charges, Mr Stunden was again placed on a bond to be of good behaviour for 12 months under s 9 of the Crimes (Sentencing Procedure) Act . 136There are a number of subjective factors which stand to the credit of Mr Stunden. They include a good employment record, genuine expressions of remorse, and his diligent attendance at a number of counselling sessions at which he has learnt a range of cognitive behavioural techniques to assist him to control his anger with the aim of preventing any re-offending. 137As well, the evidence demonstrated that Mr Stunden was brought up in difficult domestic circumstances which resulted in him leaving home at the age of 14, and ceasing contact with his mother. After the assault in question, and prior to coming before the District Court of New South Wales for sentencing, Mr Stunden had reconciled with his mother and had returned to live at his mother's home. 138In particular, after his arrest on the present charges, Mr Stunden had undertaken the Positive Lifestyle Program which is conducted by the Salvation Army, and had also attended at the Cannabis Clinic at Sutherland. One result which came from the successful completion of the Positive Lifestyle Program was that he became a volunteer with the Chaplaincy Service conducted by the Salvation Army for homeless people in the inner city area of Sydney. This volunteer work continued regularly until the sentence imposed by Finnane DCJ. 139Given his relative youth at the time of the offence (19 yrs) and at the time of the sentence being imposed (20 yrs), it was not inappropriate for Finnane DCJ to conclude that Mr Stunden had reasonable prospects of rehabilitation. 140The sentence imposed by Finnane DCJ commenced with what his Honour described as a head sentence of 4 years. His Honour reduced this to 3 years to reflect the discount for the plea of guilty and then determined that the non-parole period ought to be 2 years which was to be served by way of periodic detention. 141Having regard to all of the facts and circumstances to which I have referred, I am of the opinion that the sentence which was imposed was manifestly inadequate. 142In my opinion, the commencement point of the sentence at 4 years was below an appropriate level, and there was no adequate basis for ordering that the sentence be served by way of periodic detention. In combination, these two features have resulted in the sentence being manifestly inadequate. 143This ground of appeal succeeds. Re-sentencing 144It is necessary for this Court to now re-sentence Mr Stunden. 145In so doing, the Court has the benefit of evidence additional to that before the sentencing judge, namely, the affidavit of Mr Stunden sworn on 3 December 2010. When the affidavit was tendered on the hearing of this appeal, the Crown did not object to any matter in it, nor did it seek to cross-examine Mr Stunden about the contents of it. In those circumstances, it is appropriate for this Court to accept the evidence. 146This evidence discloses that Mr Stunden continues in employment with a supportive employer, that he has maintained some of his volunteering work with the Salvation Army, that he remains living at home, and is reconciled with his mother, and that he has ceased using illegal drugs, namely, cannabis. Mr Stunden again expresses his remorse for his actions. These are all powerful subjective factors in Mr Stunden's favour. 147In my opinion, having regard to the objective seriousness of the offence and also the particular subjective circumstances of this case which merit careful consideration, the appropriate total sentence with which to commence this determination is 6 years. That period must be reduced by 25% to reflect a proper discount for the early plea of guilty. This results in a total sentence of 4 years and 6 months. 148The effect of the statutory ratio dictated by s 44 of the Crimes (Sentencing Procedure) Act , would lead to a non-parole period of a little less than 3 years and 6 months imprisonment. 149I am persuaded that special circumstances have been shown. Mr Stunden is a relatively young man who is facing his first period of imprisonment. The evidence shows that he presently suffers from stress and anxiety of a particular kind which will be exacerbated whilst serving his non-parole period. Any term of full-time imprisonment is likely to be particularly arduous for Mr Stunden. 150Accordingly, because these special circumstances exist, it is appropriate that the non-parole period be reduced to 2 years and 6 months rather than the somewhat longer period which would otherwise reflect the statutory ratio. 151The starting date for the sentence imposed by Finnane DCJ was 3 September 2010. The Department of Corrective Services record for Mr Stunden indicates that he commenced to serve his sentence on that date. There is no reason to vary that starting date. Accordingly the non-parole period of the sentence is to be taken to have commenced on 3 September 2010 and will conclude on 2 March 2013. Orders 152I propose these orders: (1) Appeal allowed. (2) Set aside the sentence imposed in the District Court of NSW on 27 August 2010 in respect of the offence against s 33(1)(b) of the Crimes Act . (3) Mr Stunden is sentenced to a non-parole period of 2 years 6 months to commence from 3 September 2010, with the balance of the sentence being 2 years. The total sentence will conclude on 2 March 2015. (4) The first day upon which Mr Stunden will be eligible for release to parole is 2 March 2013. ********** 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. Decision last updated: 14 February 2011