Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Robertson v R [2015] NSWCCA 251 Hearing dates: 11 September 2015 Decision date: 11 September 2015 Before: Basten JA at [1]; Adams J at [30]; R A Hulme J at [31] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: APPEAL – sentencing – manslaughter – use of comparable cases – relevance to determining manifest excess – whether concept of "available range" useful – whether cases not relied on before sentencing judge can be relied on for purposes of appeal CRIMINAL LAW – sentencing – manslaughter – reliance on violence as aggravating factor – whether violence an element of offence – possible double counting – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2) Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Barnes v R [2014] NSWCCA 224 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; 243 FLR 28; [2010] NSWCCA 194 Elyard v R [2006] NSWCCA 43; 45 MVR 402 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Ibrahim v R [2009] NSWCCA 15 Shedden v R [2013] NSWCCA 225 Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Darren Stewart Robertson (Applicant) Regina (Respondent) Representation: Counsel: Ms C Loukas SC (Applicant) Ms G O'Rourke (Respondent) Solicitors: S E O'Connor – Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/278484 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2014] NSWSC 1401 Date of Decision: 15 October 2014 Before: Harrison J File Number(s): 2012/278484 Judgment 1. BASTEN JA: On 15 October 2014 the applicant, Darren Stewart Robertson, was sentenced in the Supreme Court to 10 years and 8 months imprisonment with a non-parole period of 8 years for the offence of manslaughter. The circumstances of the offending are sufficiently set out in the judgment of the sentencing judge, Harrison J, in R v Robertson; R v McArthur. [1] 2. On 1 May 2015 (six months after the sentence was imposed) a notice of application for leave to appeal was filed stating a single ground, namely, that the sentence imposed was manifestly excessive. The applicant's submissions in support of the application were also filed on 1 May 2015. 3. On 7 September 2015 an amended notice was filed adding as a second ground error on the part of the sentencing judge "in taking into account as an aggravating circumstance that the offence involved the actual or threatened use of violence." Factual background 1. The father of the deceased owned and operated an automotive business in Minchinbury. The offenders, Robertson and McArthur, drove from the Central Coast to Minchinbury on the morning of 5 December 2011, arriving in the vicinity of the business at about 5.40am. The deceased and his father arrived about two hours later at 7.50am. After opening the business the father drove away leaving the deceased alone in the workshop. 2. At about 8.13am McArthur got out of the car, walked into the factory complex in which the business was located and assaulted the deceased with a knife. The direct cause of death was a stab wound to the chest which penetrated the left lung and thoracic aorta. 3. The trip from the Central Coast to Minchinbury was undertaken in a car owned by the applicant's partner, Ms James. The statement of agreed facts included the following conversation between the applicant and the offender on the day before the killing: "OFFENDER: I have been offered to do a job tomorrow for a mate for good money. MS JAMES: What sort of job? OFFENDER: All I have to do is go to Minchinbury to rough up and scare some bloke that owed some money to a friend and has ripped off some people. MS JAMES: What the hell? No way. Don't be stupid. Where did all this come from? Who is this friend? OFFENDER: Nobody. Don't worry about it. I can get $2500 for doing it. It will be fine. I have been down there and scoped it all out. He's a big bastard but I won't be alone. It's in an industrial area in a shed up the back of Minchinbury." The offender disputes that he said he could get $2,500." 1. The final paragraph of the statement read as follows: "The offender was part of a joint enterprise involving an unlawful and dangerous act, namely, to rough up or assault [the father] for payment. In doing so the offender was aware that he was exposing another person to an appreciable risk of really serious injury." 1. The statement of agreed facts was dated 8 July 2014. That was the first day of the proposed trial at which the Prosecutor accepted a plea of guilty for manslaughter in full satisfaction of an indictment alleging murder. 2. There were other matters set out in the agreed facts, the significance of some of which was obscure. Thus the penultimate paragraph was in the following terms: "In the days following the offence the offender told Ms James that he had organised for MCARTHUR to do the job with him and that a person by the name of 'Macca' was to pay the offender for the 'job'. The offender disputes that he organised MCARTHUR to do the job." 1. There was no dispute that McArthur had done the job. There appears to have been no dispute that the offender told his partner that he had organised McArthur to do the job and that he was to be paid. The qualification appears to suggest a dispute as to him in fact being the organiser. This was only one of the factual obscurities facing the sentencing judge. The second was the qualification as to what he said to Ms James, namely, that he could get $2,500, there being no dispute that he told her after the event that he would be paid for the job. The third curiosity is that in the conversation with Ms James before the event he described the person to be roughed up as a big bastard which in the circumstances seems unlikely to be the 15 year old son. Nevertheless, it was an agreed fact that the father drove away before the event occurred. 2. No oral evidence was called on behalf of the applicant on the sentence hearing. His counsel, however, tendered a report of Dr Olav Nielssen dated 24 August 2014. [2] As the judge noted in considering the objective seriousness of the criminal enterprise the applicant's account of what occurred given to Dr Nielssen was "somewhat difficult to reconcile with what was otherwise agreed or established." [3] Even assuming that the references in the report to "Mr McAndrew" were mistaken and the intended references were to "Mr McArthur", there were other discrepancies. Importantly, and without challenge, the judge noted that "Mr Robertson did not express any remorse in his interview with Dr Nielssen and did not do so in evidence before me." [4] (He did not express remorse in evidence because he did not give evidence.) 3. The sentencing judge allowed a discount of 15% for the utilitarian value of the plea. It follows that the starting point for the sentence was, in round terms, 12 years 6 months. Grounds of appeal (a) ground 2 – aggravating circumstances 1. In a carefully structured judgment on sentence various topics were discussed under specific headings. Two headings involved "Mitigating factors" and "Aggravating circumstances". Under the latter heading appeared the following statement: [5] "The offence involved the actual or threatened use of violence. Even though the offence also involved the actual use of a weapon there is no evidence to suggest that Mr Robertson was aware of this and so this factor does not aggravate his offence. The offence was also part of an organised criminal activity." 1. Precisely what the sentencing judge had in mind in this passage is unclear. A threat or use of violence is identified as an "aggravating factor" in s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, as s 21A(2) states, an element of an offence (or what may be described as an inherent characteristic of an offence [6] ) of the kind for which sentence is being passed should not be treated as an aggravating factor; that is because of the risk of double counting. There is no doubt that actual violence is often an element of the offence of manslaughter, but that is not always so. 2. What the judge may have had in mind was that, because the applicant was not the perpetrator of the violent attack, but stayed in the car, the objective seriousness of his offending depended in part upon what he knew or might have expected to take place. Thus, in the next sentence, the judge went on to note that the evidence did not establish that the applicant was aware that McArthur was carrying a weapon. That was consistent with the facts outlined at an earlier point in the judgment. [7] The passage may be understood as identifying a potential aggravating factor which is then dismissed. 3. It is also possible, as the respondent contended, that the comments reflected the fact that not every offence of manslaughter involves a threat or use of violence. In that sense it would be legitimate to take into account that this was not manslaughter by criminal negligence but a case involving intentional harm. That is a legitimate alternative reading of the passage. 4. Whichever reading is correct, it is not possible to infer that the judge engaged in some impermissible form of double counting so as to increase the sentence by taking one factor into account twice. Further, there is no challenge to the judge's assessment of the objective seriousness of the offence as falling in the mid range for offences of this type. [8] Ground 2 should be rejected. (b) ground 1 - sentence manifestly excessive 1. The submissions for the applicant were appropriately cautious as to the use which could be made of sentencing statistics and comparable cases in relation to a crime which, apart from the element of death, can involve a wide range of offending. In her written submissions, senior counsel identified three cases which had some significant degree of similarity to the present case. These were Barnes v R [9] (7 years imprisonment with a non-parole period of 5 years); Shedden v R [10] (9 years with a non-parole period of 6 years 9 months) and Ibrahim v R [11] (sentence of 9 years 4 months with a non-parole period of 6 years 6 months). Each case was said to involve higher culpability than the present. Thus, in Barnes, it was said that the offender was aware that his co-offender had a weapon and, further, the offender had a criminal history and was on parole at the time of the offence. In Shedden, although the sentence involved a discount of 25% (giving a starting point of 12 years) again the offender knew that one person had a gun, although he did not know whether it was loaded. In Ibrahim, the offender knew that a co-offender had a knife and the offender himself was actively involved in the assault. 2. It may be accepted that the sentence in each of these cases was lower than that imposed on the applicant. It may also be accepted that there were elements of culpability which were greater than the findings with respect to the applicant. On the other hand, there were disparities in the findings with respect to subjective circumstances and with respect to remorse. In addition, the age of the offender is a point of variation. In the cases relied on, so far as the submissions revealed, all the offenders were between 18 and 29 years of age. The applicant was significantly older, being over 40 years at the date of the offence. 3. There were other cases referred to (contained in a schedule) most, but not all, of which involved shorter sentences. The appropriate inference is that the range of sentences properly available for an offence of manslaughter is wider than with respect to some other offences and the mere fact that a sentence, on one view, is at or near the top of an apparent range, does not mean that it was manifestly excessive. 4. In this context, counsel for the applicant relied on observations in two recent decisions of the High Court. In the first, Hili v The Queen, [12] there is discussion of what can be made of comparable cases in dealing with an appropriate sentence. The joint reasons referred with approval to the statement of Simpson J in De La Rosa [13] that, while there may be doubt as to the value in stating a range, comparable cases can "stand as a yardstick against which to examine a proposed sentence." [14] In the second, Barbaro v The Queen, [15] the joint reasons [16] cast doubt on the usefulness of the phrase "available range" [17] as a means of describing the limits outside which a sentence might involve manifest excess or manifest inadequacy. 5. These statements, read in context, explain why a prosecutor may take the Court to comparable cases but why it may be unhelpful, even erroneous, to simply identify an available range. In particular, the comments in Barbaro should not be taken out of their context. They were made in circumstances where the Court was considering the practice in Victoria of the trial judge requiring prosecutors to identify an available range for sentencing. [18] It is not necessary, for present purposes, to identify the implications of the reasons in that case for prosecutors in relation to State offences. 6. There are two arguably relevant lessons to be drawn from these passages. One is that there may be a degree of circularity, or perhaps merely the restating of a conclusion, in saying that a sentence is manifestly excessive because it falls outside the available range; in other words, there is no difference in the two ideas. Secondly and more significantly, it is necessary to identify the limits of the sentencing Court's discretion, by reference to the particular circumstances of the case under review. 7. Those conclusions do not assist the applicant in the present case. He was entitled to rely upon the material which was available from comparable cases, though the extent to which they provided assistance in the particular circumstances of this case was perhaps more limited than the submissions suggested. 8. The respondent suggested that it was inappropriate for counsel for the applicant to seek to establish a range by reference to comparable cases which had not been provided to the trial judge. Reliance was placed on the reasoning of Johnson J in Zreika v The Queen, [19] with respect to the limitations which should be imposed on submissions made on a sentencing appeal: "The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made." 1. It is sufficient for present purposes to say that the passage in Zreika should not be read as precluding reference to comparable cases not relied on before the sentencing judge. What was said about an appeal not being a rehearing of a plea of mitigation, raising arguments or issues which had not been ventilated before the sentencing judge, are somewhat different and more limited propositions. In the present case, there is no doubt that it was appropriate for this Court to have regard to the comparable cases upon which the applicant sought to place reliance. Again, what is required is an assessment of the particular circumstances of the individual case, having regard to all the relevant considerations, including objective seriousness of the offending, the subjective circumstances of the offender and similar matters. 2. The agreed facts indicated that the applicant had undertaken a degree of planning, including an earlier visit to the location of the offending and to obtain the involvement of a third person, whom he had driven to the scene. The attempt by his former girlfriend to dissuade him from the activity had fallen on deaf ears. Those matters, combined with a lack of evidence of remorse after the event, required, as the sentencing judge accepted, a significant sentence to reflect elements of general deterrence and disapprobation of the community with respect to such conduct. 3. In my view, while there was sufficient to be said to warrant a grant of leave to appeal, the appeal against sentence should be dismissed. Orders 1. The orders of the Court are: (1) Grant leave to appeal. (2) Dismiss the appeal 1. ADAMS J: I agree. 2. R A HULME J: The error for which the applicant contended under ground 2 was of a type which was encountered with unfortunate frequency in the years immediately following the amendment of section 21A of the Crime (Sentencing Procedure) Act in 2003. [20] 3. The care which is required to avoid the type of error referred to in the judgment of Basten JA (at [17]) is now so well-known that I would be slow to infer error by an experienced judge where there is any ambiguity. 4. What ground 2 is concerned with is a single sentence in a relatively lengthy sentence judgment. It concerned a matter that could only be regarded as relevant to an assessment of the objective seriousness of the offence. There was no challenge to the conclusion of the primary judge as to the objective seriousness of the offence (and nor could there be, in my respectful view). This fortifies, in my mind, the conclusion that his Honour did not err in the manner for which the applicant contended. 5. Another matter of note, brought to attention today by counsel for the Crown, is that there were signs of violence having been perpetrated upon the deceased over and above the stabbing, which was the act causing death. These were referred to in the judgment of the primary judge at [10]. This means that there was some violence that exceeded that which was necessary for the commission of the offence. 6. With those additional observations, I agree with the orders proposed by Basten JA, for the reasons he has provided. ********** Endnotes 1. [2014] NSWSC 1401. 2. Tcpt, 26/08/14, p 25(15). 3. Sentencing judgment at [41]. 4. Sentencing judgment at [49]. 5. Sentencing judgment at [40]. 6. See Elyard v R [2006] NSWCCA 43; 45 MVR 402 at [6]. 7. Sentencing judgment at [6]. 8. Sentencing judgment at [43]. 9. [2014] NSWCCA 224. 10. [2013] NSWCCA 225. 11. [2009] NSWCCA 15. 12. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]. 13. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; 243 FLR 28; [2010] NSWCCA 194 at [303]-[305]. 14. De La Rosa at [305]. 15. Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [28]. 16. French CJ, Hayne, Kiefel and Bell JJ. 17. The import of the phrase was discussed at [24]-[27]. 18. Barbaro at [20]-[23]. 19. [2012] NSWCCA 44; 223 A Crim R 460 at [81]. 20. A catalogue of "aggravating" and "mitigating" factors was introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) which took effect on 1 February 2003. 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: 15 September 2015