Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dyer v R [2011] NSWCCA 185 Hearing dates: 24 June 2011 Decision date: 16 August 2011 Before: McClellan CJ at CL at 1 Hidden J at 2 Johnson J at 5 Decision: Leave to appeal against sentence granted. Appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - entering a building with intent to commit serious indictable offence (assault occasioning actual bodily harm) - sentencing Judge declined to find "special circumstances" - claim of error in failing to take into account Applicant's risk of institutionalisation as "special circumstances" - argument not advanced in District Court - error not established - no lesser sentence warranted in any event - appeal dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Dyer v R [2006] NSWCCA 274 R v Hemsley [2004] NSWCCA 228 R v Gower (1991) 56 A Crim R 115 R v Binnie [2000] NSWCCA 483 R v Visconti [1982] 2 NSWLR 104 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Quayle v R [2010] NSWCCA 16 Edwards v R [2009] NSWCCA 199 Jackson v R [2010] NSWCCA 162 Category: Principal judgment Parties: Eric John Dyer (Applicant) Regina (Respondent) Representation: Mr IH Nash (Applicant) Ms V Lydiard (Respondent) Legal Aid Commission of New South Wales (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/8952 Decision under appeal Date of Decision: 2010-06-25 00:00:00 Before: Judge Keleman SC File Number(s): 2009/592 Judgment 1McCLELLAN CJ at CL : I agree with Johnson J. 2HIDDEN J : I agree with the orders proposed by Johnson J and, generally, with his Honour's reasons. 3It is regrettable that the issue ventilated in this Court was not raised in the sentence proceedings. If it had been, it would have called for careful consideration. While this Court is a court of error, I would not question its discretion to intervene when the significance of evidence before the sentencing court was not perceived by the parties or the judge and the sentencing process thereby miscarried. 4However, I agree with Johnson J that in the present case no lesser sentence was warranted for this serious offence and, in particular, that a shorter non-parole period would not have reflected the applicant's criminality. As Johnson J has pointed out, the sentence still leaves him with the benefit of a significant period of parole eligibility. 5JOHNSON J : This is an application for leave to appeal by Eric John Dyer with respect to the sentence imposed in the Parramatta District Court by his Honour Judge Keleman SC on 25 June 2010. 6The Applicant pleaded guilty to one count of entry of a building with intent to commit a serious indictable offence, assault occasioning actual bodily harm upon Stephen Franks, in circumstances of aggravation (being in company), contrary to s.111(2) Crimes Act 1900 . The maximum penalty for that offence is imprisonment for 14 years. There is no standard non-parole period for this offence. 7In sentencing the Applicant for this offence, the Court took into account, on a Form 1, an offence of assault (upon Mr Franks) occasioning actual bodily harm whilst in company, contrary to s.59(2) Crimes Act 1900 , an offence bearing a maximum penalty of seven years' imprisonment. 8Taking into account the Form 1 offence, the Applicant was sentenced to imprisonment comprising a non-parole period of three years and four months, commencing on 20 April 2009 and expiring on 19 August 2012, with a balance of term of one year and two months commencing on 20 August 2012 and expiring on 19 October 2013. 9The single ground of appeal is that, in declining to find "special circumstances" , the sentencing Judge failed to take into account a material consideration, namely the totality of the Applicant's custodial history. Facts of Offence 10There was no dispute in the District Court concerning the facts of the offence. 11The Applicant and the victim, Stephen Franks, had been acquaintances since 2007. 12There had been an earlier criminal attack by the Applicant against Mr Franks. On 6 October 2007, the Applicant had committed an offence of assault occasioning actual bodily harm against Mr Franks, causing a cut to the right side of his face, bruising and swelling to his right eye, and a bloody nose. On 18 March 2008, the Applicant was sentenced to six months' imprisonment for that offence. During the sentencing proceedings in March 2008 for that offence, the Applicant turned to the public area and mouthed in the direction of Mr Franks the words "You're dead" . 13On 29 September 2008, the Applicant was released on parole. 14On the evening of 14 October 2008, Mr Franks was at his home in Werrington with his brother and a friend. At about 11.00 pm, the victim was asleep on a chair in the lounge room. His brother and an acquaintance were dozing elsewhere in the room. 15At this time, the Applicant, accompanied by two unidentified males, entered the premises. The three men went into the lounge room and turned on the lights. The Applicant approached the victim's brother and asked where the victim was. The victim's brother replied and the Applicant approached Mr Franks who was still asleep. 16The Applicant produced a golf club from his sleeve and began hitting the victim over the head. A number of blows were struck with the club. During the attack, Mr Franks woke and the Applicant took him by the front of the shirt and dragged him off the lounge into a spare room in the house. 17As the victim was dragged away, his brother noticed the presence of the other two males. These men wore dark clothing and had their faces covered to conceal their identities. After dragging the victim to the spare room, the Applicant punched him to the head several times with his fist. The Applicant then kicked Mr Franks to the back of the ribs and the legs. At one point, he kicked Mr Franks on the right side of his forehead. 18The Applicant then tipped a cupboard onto the victim and ran from the premises with the other two men. Soon after, the Applicant returned and retrieved the golf club that he had left lying near the victim, before leaving the premises for a second time. 19The victim was helped to the lounge room by his brother. He was bleeding heavily from a head injury. According to his brother, the victim lost consciousness for a few seconds after being hit on the head with the golf club. 20Police were called and arrived soon after. The victim was taken by ambulance to Nepean District Hospital where he underwent scans and received treatment for his injuries. He suffered a number of soft-tissue injuries, bruising and swelling to the head and body. He also received a split injury to two sections of his head where he was hit by the golf club. 21Police processed the crime scene. As a result, a fingerprint of the Applicant was located on an architrave in the lounge room. 22On Wednesday, 3 December 2008, the Applicant attended Mt Druitt Police Station at the request of police. He declined to be interviewed and was charged. 23On 18 December 2008, the Applicant's parole was revoked. He was ordered to serve a balance of parole of four months and 18 days commencing on 3 December 2008 and expiring on 20 April 2009. 24Since 20 April 2009, the Applicant's custody has been solely referable to the present offences. 25On 1 March 2010, an indictment was presented charging the Applicant with offences under s.112(1) and s.111(2) Crimes Act 1900 . The Crown accepted a plea of guilty on the s.111(2) count in discharge of the indictment. The Applicant asked that the s.59(2) Crimes Act 1900 offence be taken into account on sentence. The Applicant's Subjective Circumstances 26The Applicant was born in October 1984. He was almost 24 years' old at the time of the offence and was 25 years' old at the time of sentence. 27The Applicant has a lengthy criminal history, mainly for offences of dishonesty. There are some offences of violence. In 2002, he was dealt with in the Children's Court for assault occasioning actual bodily harm. In 2005, he received a custodial sentence for robbery in company, a sentence against which he appealed unsuccessfully to this Court: Dyer v R [2006] NSWCCA 274. As mentioned earlier, in March 2008, he was sentenced for assault occasioning actual bodily harm committed against Mr Franks. 28Reports of Dr David Greenberg of Justice Health dated 22 April 2010 and Dr Richard Furst, forensic psychiatrist, dated 16 April 2010 and 21 June 2010 were tendered on sentence. In addition, the Applicant gave short evidence at the sentencing hearing. Some Findings of the Sentencing Judge 29The sentencing Judge referred to the reports of Dr Greenberg and Dr Furst in his remarks on sentence. 30His Honour was satisfied that given the Applicant's "mental health issues and other problems, his rehabilitation prospects are at best poor and that he is likely to reoffend in the future" (ROS9). 31His Honour found that the present offence was "objectively most serious" and was clearly a premeditated and planned offence, involving the Applicant arming himself with a golf club to assault the victim. His Honour concluded that the offence fell into the upper end of the range of objective seriousness for offences of this type. Further, the offence was aggravated as it was committed in company and whilst the Applicant was on parole. 32His Honour observed that general deterrence and punishment were of particular importance, as was personal deterrence for the Applicant. 33A discount of 10% was allowed for the utilitarian value of the Applicant's late plea of guilty. 34His Honour was not satisfied that the Applicant was truly remorseful for his conduct. 35The sentencing Judge had regard to evidence concerning the Applicant's mental health, and the relevant principles in R v Hemsley [2004] NSWCCA 228 at [33]-[36]. His Honour concluded (ROS10-11): "As I am satisfied on the material before me that the offender in carrying out the present offence and the offence on the Form 1 acted with full knowledge of what he was doing and with full knowledge of the gravity of his actions, I do not propose to moderate in any significant way considerations of general and personal deterrence. Indeed, on the material before me largely flowing from the psychiatric reports, I am satisfied that the offender presents an actual danger to the community and is likely to be so dangerous for some considerable time." 36His Honour declined to make a finding of "special circumstances" (ROS11): "I am not satisfied that any of the offender's subjective circumstances, considered either individually or in combination warrant a finding of special circumstances." The Ground of Appeal 37Mr Nash, counsel for the Applicant, submits that error is disclosed in that his Honour failed to take into account, on the issue of "special circumstances" a material consideration, namely the totality of the Applicant's custodial history. 38The submission made to this Court is that the Applicant has had an extensive custodial history which, upon analysis, indicates that for a period from November 2003 (when the Applicant was 19 years' old) to August 2012 (when he will be 27 years' old), the Applicant would have spent all but six months of the previous eight years and nine months in custody. 39Reliance is placed upon the decisions of this Court in R v Gower (1991) 56 A Crim R 115 and R v Binnie [2000] NSWCCA 483 in support of the proposition that this factor is capable of giving rise to a finding of "special circumstances" , so as to call for a variation of the statutory ratio for the purpose of s.44(2) Crimes (Sentencing Procedure) Act 1999 . 40It was acknowledged that this express submission had not been put to the sentencing Judge. It was said that there was passing reference to the Applicant's custodial history during the sentencing hearing, so that the issue had been exposed for consideration in the District Court. Decision 41The only issue advanced by the Applicant's legal representative in the District Court on the issue of "special circumstances" was an argument that, having regard to his Honour's then stated concern about dangerousness, a longer period on parole would be required to address that question (T15, 25 June 2010). His Honour's immediate response to that submission indicated that he did not accept it, and this position was confirmed in the remarks on sentence. 42No further submissions were made to the sentencing Judge in support of a finding of "special circumstances" . 43The Applicant's custodial history had been tendered, together with the agreed facts and the Applicant's criminal history, during the sentencing hearing. Upon enquiry from the sentencing Judge as to the purpose of the tender of the custodial history, the Crown representative invited his Honour to consider that part of the document which recounted punishment details in custody (T3, 25 June 2010). No argument was put on behalf of the Applicant that the custodial history should be used for any other purpose. 44In approaching the ground of appeal in this case, it is necessary to keep in mind the nature of an application for leave to appeal to this Court against sentence. This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. 45If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912 ; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. 46It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15]. 47In Quayle v R [2010] NSWCCA 16, it was contended (at [40]) that there was material before the District Court capable of amounting to "special circumstances" , and that the Judge should have made such a finding and reduced the proportion of the sentences represented by the non-parole period. RA Hulme J (Grove and Simpson JJ agreeing) said at [41]: "It is difficult to say that a judge was in error for not doing something that he or she was not asked to do. A finding that there are, or are not, special circumstances is a discretionary finding of fact: see R v El-Hayek [2004] NSWCCA 25 per Howie J at [103]. In a case in which there are compelling circumstances for making such a finding, and the judge is in fact asked to do so, one might expect that if the judge declines to do so he or she would provide reasons: R v Novakovic [2004] NSWCCA 437 at [39] per Sully J. Cf R v Simpson [2001] NSWCCA 534; 2001 53 NSWLR 704 Spigelman CJ at [86]-[88]." 48Here, his Honour was not asked to find "special circumstances" on the basis advanced in this Court. The sentencing Judge responded to the submissions made on the issue of "special circumstances" . An applicant faces real difficulty in this Court in contending that a sentencing Judge has fallen into error by failing to take into account a material consideration, when that consideration was not advanced to the primary Judge as being a matter which should be taken into account. 49A wide range of considerations are capable of constituting "special circumstances" for the purposes of s.44(2): R v Simpson at 722 [88]. There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge by reference to the particular factors which are sought to be taken into account in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]. 50There is no question that the risk of institutionalisation may, in a particular case, warrant a finding of "special circumstances" : Jackson v R [2010] NSWCCA 162 at [24]-[25]. Where such a submission is made, a sentencing Judge is not bound to make such a finding. It will be a factor to be taken into account with other factors, in the exercise of discretion, to determine whether a finding of "special circumstances" should be made. 51If such a submission was made here, no doubt his Honour would have considered that factor together with other factors, including the finding of dangerousness (and the need to protect the community), the Applicant's prior poor history of compliance with conditional liberty and the need for the non-parole period to properly reflect the minimum period which the Applicant should spend in custody for this offence (including the Form 1 matter). 52I am not persuaded that the Applicant has demonstrated error on the part of the sentencing Judge in this case. 53Even if the Applicant's custodial history was to be taken into account as a factor capable of giving rise to a finding of "special circumstances" , such a finding would not necessarily follow. Whilst on parole, the Applicant had entered the victim's house for the purpose of attacking him with a golf club. He did so in company. This offence followed on from an earlier attack against the same victim, where the Applicant threatened the victim during the course of the sentencing hearing. His Honour's finding of dangerousness was understandable and is not challenged on appeal. 54Having regard to all the elements of punishment, including protection of the community, rehabilitation, the objective seriousness of the offence and the Applicant's subjective circumstances, the non-parole period fixed by the sentencing Judge constituted the minimum period that the Applicant ought spend in custody: R v Simpson at 717 [59]. The current sentence provides, in any event, for a parole period of 14 months, a significant period of conditional liberty in the case of this Applicant. 55Even if error was disclosed (and it is not), I would not be satisfied, in any event, that any lesser sentence was warranted in law for the purpose of s.6(3) Criminal Appeal Act 1912 . 56I propose that leave to appeal against sentence be granted, but that the appeal be dismissed. ********** 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: 16 August 2011