Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Medcalf v R [2016] NSWCCA 209 Hearing dates: 19 August 2016 Date of orders: 30 September 2016 Decision date: 30 September 2016 Before: Hoeben CJ at CL at [1] Campbell J at [56] Button J at [57] Decision: (1) Leave to appeal is granted and the appeal is allowed. (2) The sentences imposed on the applicant in the District Court at Newcastle on 21 August 2015 are quashed. (3) In lieu thereof the applicant is sentenced as follows: (a) Count 1 - enter with intent to commit a serious indictable offence – to wit assault in circumstances of aggravation with intentional infliction of actual bodily harm, contrary to s 111(2) Crimes Act 1900 – imprisonment with a non-parole period of 4 years and 6 months, commencing 7 February 2014 and expiring 6 August 2018, with a balance of term of 1 year and 6 months, expiring 6 February 2020. (b) Count 2 - cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) Crimes Act 1900 – imprisonment with a non-parole period of 7 years and 3 months, commencing 7 February 2015 and expiring 6 May 2022 with a balance of term of 2 years and 6 months expiring 6 November 2024. (4) The earliest date on which the applicant will be entitled to parole will be 6 May 2022. Catchwords: CRIMINAL LAW – sentence appeal – aggravated enter a building with intent to commit an indictable offence and cause grievous bodily harm with intent to do so – early plea of guilty – two victims suffering serious injuries – offender unable to explain actions – offender person of good character with no previous offences showing genuine remorse – sentence imposed at top of statistical range – error in sentencing process identified – sentence manifestly excessive – offender re-sentenced. Legislation Cited: Crimes Act 1900 (NSW) – ss 33(1)(b) , 111(2) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(3)(e) Cases Cited: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 Dinsdale v R [2000] HCA 54; 202 CLR 321 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 House v R [1936] HCA 40; 55 CLR 499 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Makarian v The Queen [2005] HCA 25; 228 CLR 357 R v Jione [2007] NSWCCA 170 Regina v Darrell Terry McNaughton [2006] NSWCCA 242; 66 NSWLR 566 Ryan v R [2001] HCA 21; 206 CLR 267 Sproates v R [2009] NSWCCA 29 Vragovic v R [2007] NSWCCA 46 Category: Principal judgment Parties: Adam Medcalf - Applicant Regina – Respondent Crown Representation: Counsel: CJ Watson – Applicant S Dowling SC – Respondent Crown Solicitors: John Anthony Solicitors – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2014/40576 Decision under appeal Court or tribunal: Syme DCJ Jurisdiction: Criminal Date of Decision: 21 August 2015 Before: Syme DCJ File Number(s): 2014/40576 Judgment 1. HOEBEN CJ at CL: Offences and sentence On 21 August 2015 the applicant was sentenced by Judge Syme in the Newcastle District Court in respect of the following two offences: Charge one - aggravated enter a dwelling house with intent to commit a serious indictable offence, the circumstance of aggravation being that he inflicted actual bodily harm on Zoe Flick, contrary to s 111(2) Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 14 years. Charge two – cause grievous bodily harm to Rebecca Gardner with intent to do so, contrary to s 33(1)(b) Crimes Act 1900 for which the maximum penalty is imprisonment for 25 years. This offence carries a standard non-parole period of 7 years imprisonment. 1. Her Honour sentenced the applicant as follows: Charge one – Imprisonment for 7 years commencing 7 February 2014 and expiring 6 February 2021 with a non-parole period of 5 years and 3 months to expire 6 May 2019. Charge two – Imprisonment for 12 years to commence 7 February 2015 and to expire 6 February 2027 with a non-parole period of 8 years and 9 months to expire 6 November 2023. This produced an effective sentence of imprisonment for 13 years commencing 7 February 2014 and expiring 6 February 2027 with a non-parole period of 9 years and 9 months expiring 6 November 2023. 1. The applicant seeks leave to appeal from those sentences on the following grounds: Ground 1 – Her Honour took into account an irrelevant consideration in finding that each victim held a "very real and reasonable" fear of being sexually assaulted. Ground 2 – Her Honour failed to properly take into account the applicant's lack of prior convictions and good character as mitigating factors on sentence. Ground 3 – Her Honour failed to properly take into account that the applicant was unlikely to re-offend and had good prospects of rehabilitation as mitigating factors on sentence. Ground 4 – Her Honour failed to properly take into account the applicant's remorse as a mitigating factor on sentence. Ground 5 – The sentences imposed are manifestly excessive. Factual background 1. An agreed set of facts was before the court. The victims were both employed as cleaning contractors and were cleaning a property in Medowie. The applicant had been in Raymond Terrace for some time and was driving in the Medowie area. Between 3.20pm and 4pm he approached the premises in which the two victims were cleaning on two separate occasions. On the first occasion he looked over the rear six foot fence and used a piece of timber in order to assist him to look over the fence. On the second occasion he entered the rear yard and spoke to both victims on a pretext about a lost tennis ball. 2. The victims continued to clean the premises. They moved inside and were listening to music. The applicant entered the premises through the front door carrying two items with him - a roll of black electrical tape and a cotton hand wrap which he was wearing on his left hand. 3. Without warning, he struck Ms Gardner twice to the left side of her face. After being struck, Ms Gardner fell to the ground and lost consciousness. 4. Ms Flick was unaware of the applicant's presence. She turned around and observed him in the family room. Again without warning, he placed Ms Flick in a headlock and began to punch her in the face with his left fist. She resisted but was overwhelmed and quickly rendered unconscious by the blows to her head. While she was unconscious, the applicant wrapped black electrical tape around her mouth. It was over 3 metres long. He then positioned Ms Flick and Ms Gardner on the floor of the family room, side by side and left the premises. 5. Shortly thereafter, the victims regained consciousness and sought help. They were hospitalised with significant injuries. Ms Gardner had a severely broken jaw, had two front teeth knocked out and suffered further cuts and abrasions to her face and body. She required surgery to insert a metal plate, screws and wire to repair the break. Ms Flick required sutures to a laceration to her left eye, she suffered multiple cuts, bruises and abrasions to her face and body. Both victims were extremely traumatised as a result of the attack. 6. Her Honour had before her victim impact statements from each of the victims which she took into account as indicating the consequences for the victims of the injuries they had suffered. Ms Flick said that she had to take painkillers for three months and suffered severe psychological effects. She said that she had been diagnosed with post traumatic stress disorder. Ms Gardner has been left with permanent damage to her teeth, so that eating is a constant reminder of the assault and is painful. She told the court that the social and psychological effects were continuing. Both victims were forced to move back with their families. 7. As a result of investigation, the applicant was identified. When he was first spoken to by police he denied the offences, but subsequently admitted them and pleaded guilty to the two offences in the Local Court. Proceedings on sentence 1. The applicant gave evidence in the sentence proceedings. Her Honour allowed a 25% discount for his early plea of guilty. Before dealing with sentencing principles, her Honour resolved some issues of fact. Her Honour rejected a suggestion by the Crown that there was a sexual element in the offending. Having done so, her Honour observed: "However, no doubt the complainants, the victims of this offence, had a very real and reasonable such fear because they were both violently physically assaulted and rendered unconscious and restrained." (Sentence judgment 3.7) 1. In relation to planning, her Honour found: "The offender also referred to taking supplements prior to the commission of these offences. There is no evidence that the prior Internet searches, as I said, or the taking of supplements are directly related to this specific offence. However, both paint a worrying picture of the offender's life and interests in the months prior to the commission of the offence. He was apparently self-focused, violence-focused and intent on making himself physically fit without any particular aim in mind. Again, this is a consideration for those planning his treatment while in custody and his supervision on release but those particular issues do not aggravate the circumstance of this offence in so far as planning has occurred. The offender in his evidence said that he did not plan the offence and said it was spontaneous. However, this is not a spontaneous offence as is meant by the Act. He parked about 50 metres away from the house where the attack occurred. He saw the young complainants outside the premises. He took items from his truck which were used in the attack. He approached them a few minutes prior and spoke to them and watched them. He left the rear yard and walked through the front door, before attacking them violently. As I noted, this was not spontaneous. There is evidence of planning on the day, although the choice of victims seems to have been dictated by, to some extent, chance and seems to have been dictated by their small stature. They were certainly easy targets." (Sentence judgment 4.7 – 5.5) 1. Her Honour went on to observe: "The offender told the Court that he stopped attacking them spontaneously because he immediately knew what he had done was wrong. However, there was no effort to call for assistance for them but there is no evidence otherwise that he was startled or interrupted during the course of the offending." (Sentence judgment 5.6) 1. Having referred to the contents of the victim impact statements, her Honour took them into account when assessing the objective seriousness of the offending as follows: "These are significant statements and will be properly assessed when assessing the objective seriousness of this offending. The Crown correctly suggests that the circumstance of injury to the complainants, including any long-term consequences, are relevant when assessing the overall criminality rather than as a separate heading, and I accept that. I will simply note here how it is proposed to take these matters into account and I will borrow from the Crown's submissions because I think he has had more time to put them in writing than I have. Generally speaking, the extent of the injuries inflicted and the intention of the offender are instrumental factors in determining not only the appropriate charge but also the nature and length of the sentence to be imposed. The Crown has correctly quoted, and I think this is from Sigatano's case (1998) CLR: "The seriousness of a section 33 offence and what constitutes an appropriate sentence will be, to a very significant degree, determined by the nature of the victim's injuries. In the case where the injuries are particularly serious, there is little scope to ameliorate the sentences by providing for rehabilitation." and I accept that, and the Crown has quoted from Mitchell's case in that place." 1. Her Honour referred to the applicant's subjective case as follows: "I note when considering the offender's circumstances that he does not have a record of any prior criminal convictions. He was thirty-one when this offence was committed. He was prior to that time of no concern to society, the community or the justice system. He was a person of prior good character. Both the offender's father and a family friend Ms Toms gave evidence of his prior good character. Ms Toms described him as a family person who was always courteous and never aggressive. His lack of prior record and his positive prior engagement with the community will be taken into account when considering his risk of re-offending and his prospects of rehabilitation in so far as the Court can do so within the limitations of the offences charged. When considering his prospects of rehabilitation and the issue of remorse, Mr Medcalf did give evidence in court and did make himself available for cross-examination. He has told the Court that he had some problems but was really unable to define what they were. He so far has, I find, limited insight into the reason why he committed such violent offences and directed his violence at people he apparently did not know nor had any prior contact with. Mr Medcalf told the Court that he thought the supplements he was taking were making him feel anxious and he suggested that his actions may have been a possible consequence of the supplements he was taking. Dr Westmore, who prepared a report in January or February of this year, when referring to his prospects of rehabilitation said as follows. Dr Westmore is a respected psychiatrist and I have received his report by consent. I do accept the contents of that report. He said: "At the time I assessed him I did not think that he needed psychiatric medication but definitely he would benefit from some counselling. If it is accepted." said Dr Westmore, "that the offending behaviour was uncharacteristic and unexpected and indeed an aberrant event which occurred in part because of his mental state at the relevant time, providing he does not become depressed and angry again his risks of re-offending are in the lower range. Obviously he must never use supplements again and he needs to continue counselling on his return to the community. It is unlikely he will receive any extended counselling during the course of his incarceration." Again, when considering the offending behaviour Mr Medcalf was unable to provide a cogent explanation, if there ever could be one, for these offences. He referred to becoming anxious as a result of his supplement use." 1. Her Honour noted: "Mr Rosser for Mr Medcalf does not submit on instructions from his client that the supplement use had any causal effect on the commission of the offences. Further, no submission is made that there was any mental health or psychiatric reason for the commission of the offences. The evidence relating to psychiatric presentation and supplement use is relevant only to the issue of rehabilitation and it is in that context that I will put it on the record." 1. I interpolate that this concession by the applicant's legal representative at this point was unfortunate. As is made clear by a reading of Dr Westmore's report and as her Honour made clear subsequently in her sentence judgment, there was a causal connection found by Dr Westmore between the applicant's mental state and the commission of the offence although that of itself was not a full explanation. Neither Dr Westmore nor the applicant could fully explain why he committed these offences. That having been said, it is of no assistance to the applicant in this appeal and has properly not been relied upon by his counsel, since the point was expressly abandoned in the sentence proceedings. Her Honour cannot be said to have erred in not taking into account a matter which was given up in submissions. 2. Her Honour said: "Dr Westmore was of the opinion that, based on his history, Mr Medcalf was suffering from a depressive disorder at the time the offending behaviour occurred. He said the differential diagnosis would include a major depressive disorder or a moderate to severe adjustment disorder and depressed and anxious mood. He was of the opinion that he may also have a discrete anxiety disorder but the history and diagnosis of that was less clear. He observed that his general level of functioning leading up to the offending behaviour appeared to have fluctuated considerably but his history would suggest that he was functioning below his premorbid levels of functioning, noting that he was having increased conflict with others, relationship breakdowns and a history of increased alcohol consumption. I also note that Mr Medcalf reported taking a wide range of supplements which he obtained from various Internet sites supplied from the United States. There are no objective tests which relate to these supplements and there is no information as to what level of these supplements were in Mr Medcalf's body at the time the offences were committed." (Sentence judgment 9.1) 1. Her Honour then referred to a pharmacological report by Professor Arnold, the effect of which was that there was no evidence that these supplements improved weight loss or muscle development and there was no evidence of them being harmful, although there was anecdotal evidence to that effect. Her Honour noted Professor Arnold's conclusion as follows: "At the conclusion of the report Mr Arnold said when referring to some of the steroid products or nutritional substances that contain some of the ephedrines or steroid-like substances: "Like for other anabolic steroids, it is possible that exposure to DHEA and androsterone could have contributed to Mr Medcalf's mental state at the time of the incident, increasing his feelings of anxiety, irritability and aggressivity. However, it is impossible to conclude with greater certainty, given the limited information, on the actual dosages taken and the dosages found in these preparations." It would seem that even though Mr Medcalf is of the view that his taking of supplements may have affected his behaviour on that day, there is no direct evidence to support that proposition but, as I said before, it is a worrying feature of his life at that time that he was using and abusing substances that he did not know the effects of at such a high level. Dr Westmore concluded in his report: "Mr Medcalf's behaviour does appear to have been completely unexpected and uncharacteristic when one considers his longitudinal life profile." and that is an assessment that I would agree with. "That would suggest," said Dr Westmore, "that there was something wrong with him from a psychological or psychiatric perspective at the relevant time but he does not, in my opinion, have a psychiatric defence to the matters now before the Court. He was able in a spontaneous way to acknowledge the wrongness of his actions and he has some insight into the considerable trauma he caused his victims. He also has some insight into the fact that he was depressed and anxious at the relevant time but I think he would benefit from counselling in relation to the nature and extent of his aggressive behaviour towards the two girls and he would be assisted by understanding himself more completely the nature of the psychodynamic factors which is likely to have led him to selecting women as victims rather than men."" (Sentence judgment 10.3 – 11.1) 1. Her Honour expressed her findings in relation to remorse and rehabilitation as follows: "As I noted in Mr Medcalf's evidence, there are many features of this offence and specifically of Mr Medcalf that at this stage are unknown factors. Therefore, the Court can make a finding that, while he has expressed remorse as best as he is able at the moment, and while there are some prospects that he has relatively low risks of re-offending, this all depends on him being able to undertake further counselling which would give him better insight in the future, being in a position where he is properly supervised so that he does not get himself into a position where he becomes obsessed with things that convinced him to involve himself in a heavy supplement programme, and also a better handle on his own personality and his own potentially depressive feelings which apparently has caused him relationship difficulties in the past. This is a complex matter for sentencing and it is a complex matter dealing with Mr Medcalf. His prospects of rehabilitation will be taken into account. It is a long-term prospect, in my view." (Sentence judgment 11.2) 1. Her Honour set out other aspects of the applicant's subjective case as follows: "With respect to the offender's background, I note that he grew up with his family in Queensland and New South Wales. He has a very supportive family. His father told the Court that he commenced using drugs as a teenager and the family became supportive and assisting him at that time. His drug use fluctuated over time, sometimes interfering with his work. However, he successfully completed a carpentry apprenticeship and worked in his own business. He was not satisfied with the work process and he was, at the time of the offence, living at his sister's home by arrangement. He is now thirty-two years of age. He has never married but he has maintained some long-term relationships. He appears dissatisfied with his life and with his relationships in general, even prior to the commission of this offence. He does have significant family support. His father gave evidence and he offers support in the future. He told the Court that his son prior to this offence was considered to be happy and easy-going. The father was understandably shocked by the charges and is still puzzled by his son's behaviour but, fortunately for Mr Medcalf Junior's prospects of rehabilitation, his father still offers support and will assist him in providing employment on his eventual release." (Sentence judgment 11.9 – 12.7) 1. Her Honour assessed the objective seriousness of these offences as "objectively placed higher than mid-range seriousness". Her Honour considered the protection of the community from the applicant as an important consideration as was denunciation so as to recognise the harm done to the victims and to the community as a result of his offending. Her Honour then proceeded to sentence. 2. There was before her Honour a statistical summary of 70 cases involving offences contrary to s 33(1)(b) of the Crimes Act 1900 extending from 2004 until 2015. The summaries included the following information: the name and citation of the case, the offence or offences, the original sentence, the result of the appeal, where a weapon was used the nature of the weapon and a five to ten line summary of the facts of the case. Of those 70 cases, the sentence passed by her Honour in this case was equal to the highest sentence imposed. 3. The cases where similar sentences were imposed were: Vragovic v R [2007] NSWCCA 46. The sentence was 12 years with a non-parole period of 8 years. An exhaust pipe and a shortened firearm were used. A brief summary of the facts were - the offender had attacked his estranged wife aged 57 - broke into her home at night - beat her face and body - the victim suffered fractured ribs, a pneumothorax, a fracture to left scapula, lacerations to scalp and head. The victim suffered serious continuing consequences of the attack. The offence was characterised as "above mid-range". R v Jione [2007] NSWCCA 170. Successful Crown appeal – sentence of imprisonment for 12 years with a non-parole period of 8 years – offender punched victim numerous times on two occasions while drinking at a hotel. The victim was reduced to a vegetative state. The offence was characterised as "above mid-range and in the category of high seriousness". Sproates v R [2009] NSWCCA 29. Sentence of imprisonment of 12 years with a non-parole of 8 years – pistol used. Offender involved in altercation in hotel with victim. Approached victim outside hotel and threatened him with pistol. Fired three shots hitting victim in stomach – severe injuries – bullet entered left abdomen, passed through the liver, the stomach and lodged near the spine and pancreas – requirement for major surgery. The victim suffered severe physical consequences for the rest of his life. The offence was characterised as at the "upper end of range". Bourke v R [2010] NSWCCA 22; 199 A Crim R 38. Sentence of imprisonment for 12 years with a non-parole period of 8 years – pole and axe used. Attacked victim at a party with weapons obtained from home – motive unknown – attack was unprovoked. Victim suffered serious cuts to head including a cut above the eye which went down to the bone and fractures to fingers – offence characterised as "above mid-range of seriousness towards upper end of seriousness". The appeal Ground 1 – Her Honour took into account an irrelevant consideration in finding that each victim held a "very real and reasonable" fear of being sexually assaulted. 1. The applicant submitted that there was no basis for her Honour making such a finding, particularly when the finding was expressed as there being "no doubt" as to that state of affairs existing. The applicant submitted that neither victim had said anything in their victim impact statements about having such a fear. The applicant submitted that this finding must have played some part in her Honour's reasoning towards sentence, otherwise she would not have said anything about it. The applicant submitted that in the circumstances this observation by her Honour was an irrelevant consideration and amounted to an error which required re-sentencing. Consideration 1. I agree that there was no factual basis for her Honour making that observation. There could, however, have been no objection to it had her Honour expressed herself in terms of "likelihood" or "probability". That having been said, it is not at all clear that the observation had any effect on the sentence ultimately imposed. Her Honour made the observation on one occasion, early in her sentence judgment, in circumstances where she was in effect excluding an earlier Crown submission that there was a sexual motivation. It was at most an incorrect observation on a peripheral issue. It follows that I am not persuaded that error requiring re-sentence has occurred. Ground 2 – Her Honour failed to properly take into account the applicant's lack of prior convictions and good character as mitigating factors on sentence. 1. The applicant submitted that the Crown in the sentence proceedings had accepted that his lack of criminal record and good character were mitigating factors on sentence (s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999). He submitted that this was confirmed by the opinion of Dr Westmore which was accepted by her Honour, that the offences were uncharacteristic and aberrant. In that regard, the applicant relied upon Regina v Darrell Terry McNaughton [2006] NSWCCA 242; 66 NSWLR 566 where Spigelman CJ said: "26 … the majority judgment in Veen No 2 recognised that prior convictions are pertinent to where, within the boundary set by the objective circumstances, a sentence should lie." The applicant submitted that because of his absence of convictions and prior good character, the sentences imposed should fall more towards the lenient end of the boundary set by the objective seriousness of the offences. 1. The applicant also relied upon the observation of McHugh J in Ryan v R [2001] HCA 21; 206 CLR 267 at [29]: "29 … In the sentencing context, however, being of otherwise good character may in some circumstances suggest that the prisoner's actions in committing the offence for which he or she is being sentenced were "out of character" and that he or she is unlikely to re-offend. For that purpose, the absence of previous convictions is usually regarded as evidence of good character. On the other hand, many previous convictions suggest that the offence for which sentence is being passed was not an "uncharacteristic aberration". 30 Another, but less articulated, reason for considering "good character" in the sentencing context appears to involve the idea that a "morally good" person is less deserving of punishment for a particular offence than a "morally neutral or bad" person who has committed an identical offence. Walker and Padfield have described as "remarkable": "... cases in which the court is influenced by meritorious conduct which has nothing to do with the offence. …" 31 Notwithstanding the "remarkable" rationale for taking into account a prisoner's otherwise good character, at common law it is an established mitigating factor in the sentencing process. What makes a person of otherwise "good character" will necessarily vary according to the individual who stands for sentence. It is impossible to state a universal rule." 1. The applicant submitted that her Honour should have taken into account the "out of character" nature of the offending and his previous good character as positive mitigating factors as well as matters to be taken into account when assessing his risk of re-offending and prospects of rehabilitation in the context of the protection of the public. Consideration 1. A ground of appeal expressed in terms of "failing to properly take into account" implicitly concedes that a particular factor was taken into account but challenges the exercise of discretion on the part of the sentencing judge. In this case, however, there is more to the complaint. The applicant submits that her Honour should not have restricted her consideration of that issue only in the context of rehabilitation and risk of re-offending, but that it had a wider application. There is no such qualification to its use as a mitigating factor in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. 2. There is considerable force in this aspect of the ground of appeal which feeds into Ground 5. It follows that her Honour did fail to give full and proper effect to what was an unchallenged mitigating factor. Ground 3 – Her Honour failed to properly take into account that the applicant was unlikely to re-offend and had good prospects of rehabilitation as mitigating factors on sentence. 1. In Ground 3, the applicant challenged her Honour's mode of reasoning and her ultimate finding that at best the applicant's prospects of rehabilitation were "long term", i.e. guarded. The applicant submitted that her Honour should have had regard to the opinion of Dr Westmore that this offending was out of character, that his prospects of rehabilitation were good and that there was a low chance of him re-offending. He submitted that her Honour should have taken into account his lack of prior convictions and prior good character and the support of his family, particularly his father. There was also his expressed willingness to undertake courses and therapy to better understand what he had done and why. The applicant submitted that her Honour had made no mention of those matters and did not appear to have taken them into account. 2. The applicant submitted that her Honour's reasoning had focused entirely upon his inability to explain why he had committed the offences. Her reasoning was that if he could not explain why these offences had occurred, then they might occur again in the future. The applicant submitted that this line of reasoning placed too much weight on his lack of an explanation and disregarded the other positive matters which had been put to her Honour and in particular, the opinion of Dr Westmore. Consideration 1. There is no doubt that her Honour was conscious of the matters to which the applicant refers because she dealt with them in her judgment. Her conclusion, while not favouring the applicant, was open to her given the "unknown factors" relating to the applicant's motivation for the offending. This ground of appeal has not been made out. Ground 4 – Her Honour failed to properly take into account the applicant's remorse as a mitigating factor on sentence. 1. The applicant submitted that her Honour's approach to remorse appears to have conflated the question of his remorse with whether or not he was able to explain why he committed the offences. He submitted that the evidence established that despite him not being able to satisfactorily explain why he committed the offences, he was remorseful for what he had done. He had fully accepted responsibility for his actions and he acknowledged the injury that his actions had caused. It was never suggested by the Crown in its case on sentence that he was not genuinely remorseful. The applicant was not cross-examined to that effect. 2. The applicant submitted that her Honour's finding that he "has expressed remorse as best he is able at the moment" did not go so far as to reveal how her Honour intended to take his remorse into account in determining the appropriate sentences. He submitted that her Honour's other observations about his lack of insight suggests that she did not take his remorse into account as a mitigating factor pursuant to s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999. Consideration 1. This ground of appeal is made out. The applicant's submission that her Honour did conflate the two concepts is correct. I can see no necessary contradiction between an offender being unable to explain why he offended and yet still being genuinely sorry for what he or she had done and in particular, for the harm which he or she may have caused the victims. While her Honour was not necessarily bound by any concessions by the Crown, it is of significance that the Crown accepted that the applicant was genuinely remorseful. Ground 5 – The sentences imposed are manifestly excessive. 1. The applicant submitted that when one takes into account the starting point for each sentence before the 25% percent discount, their excessive nature becomes clear. In the case of the enter with intent offence, the starting point was imprisonment for 9 years and 4 months against a maximum penalty of 14 years. With the cause grievous bodily harm with intent offence, the starting point was imprisonment for 16 years against a maximum penalty of 25 years. In that offence the non-parole period imposed was one of 8 years and 9 months against a standard non-parole period of 7 years. 2. The applicant submitted that the sentencing statistics reveal that the individual sentences imposed on the applicant were at the very top of the reported range. In relation to the offence of enter with intent, the statistics for the period June 2008 until June 2015 reveal that during that period 155 offenders received terms of fulltime imprisonment for that offence. Out of those 155 only the applicant received a sentence of 7 years imprisonment or longer. Three offenders received sentences of 6 years, two received sentences of 5 years and the remaining 149 received sentences of less than 5 years. 3. For the offence of cause grievous bodily harm with intent, the statistics maintained for the same period reveal that 126 offenders received terms of fulltime imprisonment. Out of those 126, only 5 including the applicant, received a sentence of 12 years. There was no sentence higher than 12 years. 4. The applicant submitted that while his offending was objectively serious criminal conduct, and deserved sentences that reflected that fact, there were a number of mitigating factors present. 1. He had no prior criminal record and no history of violence. 2. He was a person of prior good character. 3. He was genuinely remorseful. 4. He was unlikely to re-offend; and 5. Had good prospects of rehabilitation. 1. The applicant submitted that given this combination of factors in mitigation, the fact that the sentences imposed on him were at the very top of the reported range was unreasonable and plainly unjust. Consideration 1. To succeed on this ground the applicant must demonstrate that the sentence was "unreasonable or plainly unjust" (Dinsdale v R [2000] HCA 54; 202 CLR 321 at [325]; Makarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]). This is to be established in the context where there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Makarian at [27). 2. It is not sufficient that this Court might have exercised the sentencing discretion in a manner different to the manner in which the sentencing judge exercised her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. 3. There is no doubt that the objective seriousness of the offending was substantial. There was a high degree of violence, the offences were unprovoked and the consequences for the victims serious. In the circumstances her Honour's finding that the objective seriousness of the offending was above the mid-range of objective seriousness was open to her. General and personal deterrence were of high importance. 4. This Court has consistently recognised the limitations of statistics. At best, they are a blunt tool when considering sentencing patterns. Nevertheless they are of some value. In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said: "53 Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases. 54 In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: "Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts." But the range of sentences that have been imposed in the past does not fix "the boundaries within which future judges must, or even ought, to sentence". Past sentences "are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence" (emphasis added). When considering past sentences, "it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned"." 1. The plurality went on to say in relation to questions of manifest inadequacy or manifest excess: "58 The single ground of appeal advanced by the Director in each appeal to the Court of Criminal Appeal was that the sentences imposed at first instance were manifestly inadequate. That is, the error which the Director asserted that the sentencing judge had made was of the last kind mentioned in House v The King. By asserting manifest inadequacy, the Director alleged that the result embodied in the sentencing judge's orders was "unreasonable or plainly unjust". The Director did not allege that any specific error could be identified (as would be the case if the sentencing judge were said to have acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts or not taken into account some material considerations). Rather, the Director asserted that it was to be inferred from the result that there was "a failure properly to exercise the discretion which the law reposes in the court of first instance". 59 As was said in Dinsdale v The Queen, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error"." 1. Leaving aside the errors identified in Grounds 2 and 4, I have concluded that the sentences imposed here were manifestly excessive. In reaching that conclusion, I have essentially based it on the last kind of error referred to in House v R [1936] HCA 40; 55 CLR 499 at 505. 2. As was indicated in the applicant's submissions in respect of Ground 5, the starting point for the head sentences before the 25% discount for an early plea was respectively 9 years and 4 months and 16 years. By inference the instinctive synthesis process by which her Honour arrived at those starting points must also have taken into account the mitigating factors identified in those earlier grounds of appeal, i.e. lack of prior offending and previous good character, together with genuine remorse. In other words, the starting point for those sentences must have been higher than that produced by a mere adding on of the 25% discount. This is a further indication of excess, although the precise nature of the error cannot be determined. 3. Even allowing for the relatively blunt nature of statistics, the fact that these sentences were at the very top of those passed over the last 8 -10 years, while not decisive, is relevant and important. 4. It follows that these sentences are plainly unreasonable and unjust and therefore manifestly excessive. It is necessary for the applicant to be re-sentenced (Kentwell v The Queen [2014] HCA 37; 252 CLR 601). Re-sentence 1. There was no additional material placed before the Court speaking to the applicant's time in custody between the date of sentencing and the present time. The circumstances of the offending and the mitigating circumstances have been set out earlier in this judgment. By reference to those matters in the re-exercise of the sentencing discretion, I would impose the following sentences. In respect of offence one – the enter with intent to commit a serious indictable offence – I would impose a sentence of imprisonment with a non-parole period of 4 years and 6 months, with a balance of term of 1 year and 6 months. 2. For the offence of cause grievous bodily harm with intent to cause grievous bodily harm, I would impose a sentence of imprisonment with a non-parole period of 7 years and 3 months, with a balance of term of 2 years and 6 months. 3. The effective sentence would therefore be a sentence of imprisonment for 10 years and 9 months with a non-parole period of 8 years and 3 months. 4. Accordingly, the orders which I propose are: 1. Leave to appeal is granted and the appeal is allowed. 2. The sentences imposed on the applicant in the District Court at Newcastle on 21 August 2015 are quashed. 3. In lieu thereof the applicant is sentenced as follows: 1. Count 1 - enter with intent to commit a serious indictable offence – to wit assault in circumstances of aggravation with intentional infliction of actual bodily harm, contrary to s 111(2) Crimes Act 1900 – imprisonment with a non-parole period of 4 years and 6 months, commencing 7 February 2014 and expiring 6 August 2018, with a balance of term of 1 year and 6 months, expiring 6 February 2020. 2. Count 2 - cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) Crimes Act 1900 – imprisonment with a non-parole period of 7 years and 3 months, commencing 7 February 2015 and expiring 6 May 2022 with a balance of term of 2 years and 6 months expiring 6 November 2024. 1. The earliest date on which the applicant will be entitled to parole will be 6 May 2022. 1. CAMPBELL J: I agree with Hoeben CJ at CL. 2. BUTTON J: I agree with Hoeben CJ at CL. ********** 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: 30 September 2016