Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Regina v AB [2017] NSWCCA 88 Hearing dates: 5 April 2017 Date of orders: 05 May 2017 Decision date: 05 May 2017 Before: Bathurst CJ at [1]; R A Hulme J at [79]; Beech-Jones J at [80] Decision: 1. Appeal allowed. 2. Set aside the sentence imposed on the offender and in lieu thereof sentence the offender to a term of imprisonment commencing on 30 September 2016 comprising a non-parole period of 4 years and 4 months and a balance of term of 2 years and 4 months, expiring on 29 May 2023. The earliest date on which the respondent will be eligible to be released to parole is 29 January 2021. Catchwords: CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – whether sentence inadequate response to findings made on objective criminality and need for deterrence – whether undue weight given to subjective circumstances – whether non-parole period manifestly inadequate – whether excessive discount given for guilty plea – whether excessive discount given for assistance to authorities Legislation Cited: Crimes Act 1900 (NSW) s 33(1)(b) Criminal Appeal Act 1912 (NSW) s 5D Crimes (Administration of Sentence) Regulation 2014 (NSW) reg 218 Cases Cited: AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203 CMB v The Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v GWM [2012] NSWCCA 240 R v Harris [2015] NSWCCA 81 R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Stunden [2011] NSWCCA 8 Category: Principal judgment Parties: Crown (Applicant) AB (Respondent) Representation: Counsel: S Hughes (Applicant) M Finnane QC/P Hart (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Oxford Lawyers (Respondent) File Number(s): 2014/334299 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 30 September 2016 Before: Sides QC DCJ File Number(s): 2014/334299 HEADNOTE [This headnote is not to be read as part of the judgment] The respondent pleaded guilty to one count of causing grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). He was sentenced to a term of imprisonment of 6 years and 8 months with a non-parole period of 3 years. The Crown appealed against that sentence on the sole ground that it was manifestly inadequate. The respondent was married to AD. AD and the victim had previously been in a relationship. AD and the victim arranged to meet at a park. The respondent became aware of this and sent a series of text messages to a co-accused to the effect that they would both attend the park. At the park, the respondent hit the victim in the head with a baseball bat. The respondent and his co-accused then kicked the victim, once in the head and several times to his upper body. The victim suffered multiple skull fractures and bleeding to the brain. The medical evidence was that he would suffer permanent physical and cognitive deficits with a significant impact on his mobility and function and his social, employment, and financial status. The sentencing judge found that the offence was well above the middle range of seriousness, taking into account the consequences for the victim, the premeditation and planning and the fact that the offender was armed with a baseball bat and in company. At the time of the attack the respondent was 20 years of age and suffered from paranoid psychosis that occurred on the background of Attention Deficit Hyperactivity Disorder with residual symptoms of Post-Traumatic Stress Disorder. He pleaded guilty on arraignment and was given a 20% discount for doing so. He signed a statement inculpating his co-accused and gave an undertaking to give evidence against him, for which he was given a 25% discount. The sentencing judge found special circumstances due to the expectation that custody would be more onerous for the respondent and his need for the maximum possible period of supervision, and adjusted the statutory non-parole period ratio to 45%. The Crown sought to identify a number of specific errors in order to explain why the sentence was manifestly inadequate: 1. The sentencing judge erroneously took into account the particular listing difficulties at the Parramatta District Court when awarding the discount of 20% for the guilty plea which was excessive for a plea on arraignment; and 2. The discount for assistance to authorities was excessive where the statement was made after the charging of the co-accused such that it was not of assistance in the police investigation; and 3. The non-parole period was manifestly inadequate in circumstances where: a. There was no evidence the respondent would serve his sentence in more onerous conditions of imprisonment; and b. The focus when fixing a non-parole period should not solely be rehabilitation but rather the minimum period necessary to appropriately reflect the multiple purposes of sentencing. The Court held (Bathurst CJ, R A Hulme and Beech-Jones JJ agreeing), allowing the appeal: The guilty plea (i) The plea was entered on or about the time of arraignment, before any other substantive steps had been taken in the District Court. A discount of 20% was not excessive. There is nothing in the remarks on sentence to indicate that the discount was influenced by the particular listing arrangements at the Parramatta District Court: [62]-[64] (Bathurst CJ), [79] (R A Hulme J), [80] (Beech-Jones J). R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 applied. The assistance to authorities (ii) The extent to which the respondent provided assistance could only be properly measured by reference to other evidence in the possession of the Crown implicating the co-accused. Apart from declining to concede that it had no other evidence implicating the co-offender, the Crown did not indicate what evidence was in fact available. In these circumstances, the sentencing judge did not err in allowing a discount of 25%: [65]-[66] (Bathurst CJ), [79] (R A Hulme J), [80] (Beech-Jones J). (iii) The resulting sentence was not unreasonably disproportionate to the nature and circumstance of the offence. The head sentence was not manifestly inadequate: [67]-[69] (Bathurst CJ), [79] (R A Hulme J), [80] (Beech-Jones J). CMB v The Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9 applied. The non-parole period (iv) The non-parole period was manifestly inadequate in failing to reflect the minimum period of imprisonment required having regard to the criminality of the offence. The proper exercise of the discretion to vary the statutory ratio between the head sentence and the non-parole period is confined by the need to ensure that the time an offender must spend in prison reflects all the circumstances of the offence and the offender including the objective gravity of the offence and the need for general deterrence: [70] (Bathurst CJ), [79] (R A Hulme J), [80] (Beech-Jones J). R v GWM [2012] NSWCCA 240; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 applied. (v) There was no evidence that the respondent's imprisonment would be any more onerous than that of other prisoners or that he would be held in protective custody and to the extent the sentencing judge considered that might be necessary in the future, it was mere speculation not based on evidence: [71] (Bathurst CJ), [79] (R A Hulme J), [80] (Beech-Jones J). The residual discretion (vi) The onus is on the Crown to negate any reason why the residual discretion not to interfere should be exercised. It is necessary to bear in mind the limited purpose of Crown appeals being concerned not with the correction of error in particular cases, but rather laying down principles for the guidance of sentencing courts: [73] (Bathurst CJ), [79] (R A Hulme J), [80] (Beech-Jones J). CMB v The Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9; Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 applied. (vii) It is important that sentencing courts are reminded that varying the statutory ratio not only requires consideration of the offender's subjective circumstances and prospects of rehabilitation, but also the seriousness of the offence so as to ensure that the minimum period of imprisonment properly reflects its nature and gravity. It is therefore appropriate not to exercise the residual discretion and allow the appeal only insofar as it relates to the non-parole period: [74] (Bathurst CJ), [79] (R A Hulme J), [80] (Beech-Jones J). Judgment 1. BATHURST CJ: AB (the respondent) pleaded guilty on 17 December 2015 to one count of causing grievous bodily harm to AC (the victim) with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). 2. The offence carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. 3. The offence was committed on 10 May 2014. The respondent was charged with the offence on 12 November 2014, and was committed for trial on 4 November 2015. His first appearance in the District Court was on 26 November 2015. On his next appearance on 10 December 2015 the possibility of a plea was foreshadowed and on 17 December 2015 the respondent pleaded guilty. The plea was entered before a trial date was set in the District Court. 4. The respondent was sentenced to a term of imprisonment of 6 years and 8 months and a non-parole period of 3 years. The Crown has appealed against the sentence under s 5D of the Criminal Appeal Act 1912 (NSW) on the sole ground the sentence was manifestly inadequate. Background facts 1. In 2009 the victim commenced a relationship with AD which lasted about 8 months. In July 2012 the respondent commenced a relationship with AD. However, during the course of that relationship AD recommenced an intimate relationship with the victim. 2. On 10 May 2014 the victim and AD arranged to meet at a park. The respondent apparently became aware of this and about one hour before the assault sent and received a series of text messages between him and a person who has also been accused of the offence (the co-accused). The texts were to the following effect: "Offender I will come 12:30 But if you can't I will go by myself/Like I don't want to get u any troubles walla. [Co-accused] nah bro I'm coming with u/your my brother I have to come Offender bro I'm gonna fuck him up you will see :) [Co-accused] im with you dw anyone fuckes with you fuckes with me/call me when you come to my house 1. The victim and AD arrived at the park at about 12.30am. The respondent and the co-accused approached the victim. The respondent was holding a baseball bat. The respondent struck the victim with sufficient force to cause him to lose consciousness. In a subsequent statement the respondent said that he and his co-accused then kicked the victim. The respondent stated that he kicked the victim once in the head and several times to his upper body. He said the co-accused also kicked the victim and punched him a number of times. 2. The victim was taken by ambulance to Liverpool Hospital. At that time he was unable to move his lower limbs. A CT Scan revealed multiple skull fractures and bleeding to the brain. He remained confused and disoriented for a period of 12 days after the assault. He suffered a severe traumatic brain injury and the neurological assessment on discharge showed reduced processing speed, memory, organisation skills and problem solving skills as well as issues with walking. A neuropsychological assessment in April 2015 showed ongoing issues with problem solving, planning and organisation. As at 11 February 2016 the victim's problems as a result of the assault included: * weakness and spasticity of the legs, the left being worse than the right; * low back pain; * pain in the left leg and left knee; * fatigue; * reduced attention; * reduced speed of information processing; * impaired problem-solving skills; * anxiety; * social isolation; and * low mood, however, he refused to take medication or undertake clinical psychological treatment to address his low mood. 1. The victim has been unable to return to his previous employment as a supervisor in a bakery because of the physical demands and the weakness and spasticity in his legs creating problems with balance and resulting in falls. 2. In a medical opinion of Dr Vidya Ramnath dated 18 February 2016, it was stated that while the victim had made a reasonable recovery there were permanent physical and cognitive deficits which have had a significant impact on his mobility and function and his social, employment, and financial status. The respondent's subjective circumstances 1. The respondent was 20 years of age at the commission of the offence and 22 at the date of sentence. He is the youngest in a family of four, having an older sister and twin brothers. His father died a month before he was born. 2. He was born in Iraq and recalled his family suffered discrimination due to his mother being Mandaean. His late father was a Muslim and his extended family discriminated against him and his mother. During the Second Gulf War in 2003 he observed traumatic events including killings, and the discrimination against his family increased. In 2005 members of a militia threatened his family. Ultimately his family were driven to the Syrian border in 2007 and left to their own devices. 3. The respondent and his family arrived in Australia in 2008. The respondent completed a five month intensive English course, enrolled in Year 10 at Miller Technology High School but did not complete his School Certificate. 4. Thereafter the respondent completed 6 months of a pre-apprenticeship course in automotive mechanics. He left the apprenticeship to work in a car wash where he remained for 2 years. He then worked in the construction industry for 7 months, then a restaurant for 12 months and then in a car wash. 5. The respondent had prior convictions. On 28 May 2013, he was placed on a two year bond for affray. The sentencing judge stated it was an aggravating factor that he was subject to this bond at the time the offence was committed. 6. On 10 December 2013, the respondent was fined for driving whilst disqualified. In addition, he committed further offences after the offence the subject of the present proceedings. On 28 October 2015 he was placed on a bond for driving while suspended and stating a false name. Those offences were committed on 29 August 2015. On 24 November 2015 he was fined for possession of a prohibited drug. This offence was committed on 23 December 2014. 7. The respondent had been treated by a psychiatrist, Dr Benjamin, since 9 May 2013. He saw Dr Benjamin on a regular basis but the sentencing judge noted that it was not clear what appointments he kept between 5 December 2013 and the date of the offence. 8. The sentencing judge noted (and it was not disputed) that Dr Benjamin diagnosed paranoid psychosis that occurred on the background of Attention Deficit Hyperactivity Disorder and with some residual symptoms of Post-Traumatic Stress Disorder. Dr Benjamin prescribed medication but the respondent's condition apparently improved after 3 months to the point where he stopped his medication. 9. The sentencing judge also referred to the somewhat different diagnosis of the respondent's psychiatric condition by a clinical psychologist, Mr Sam Borenstein and a General Practitioner, Dr Faried Ibrahim. The sentencing judge stated he preferred the evidence of Dr Benjamin whilst accepting that the history given by the respondent to Mr Borenstein was accurate. There was no challenge to these matters on the appeal. The sentencing judgment 1. The sentencing judge set out the facts and the respondent's subjective case which I have summarised above. He stated that the respondent told Mr Borenstein he was prone to angry outbursts before the offence. He told Mr Borenstein that he had taken ecstasy on the night of the offence and it made him feel angry and unable to stop. He also told Mr Borenstein that this was the first time he had taken ecstasy. 2. The sentencing judge noted that the respondent had acknowledged in his evidence that he instigated the offence, planned it and recruited the co-offender. The sentencing judge stated that although the offender had problems with anger and impulsiveness, he had the opportunity to withdraw before committing the offence. He noted the offender admitted the following matters: * he had searched posts on Facebook and obtained the victim's profile; * discovered some time during the afternoon of 9 May 2014 that his wife and the victim were to meet later that night; * recruited the co-offender at about 3.00pm that day; * obtained the baseball bat; * sent the co-offender a text message indicating he would do it on his own if the co-offender would not come; * lied to the co-offender about the circumstances leading to him wanting someone assaulted, saying it related to his sister; * in a text message told the co-offender to wear clothes because it was cold; * went to an area where it was dark and where there were no cameras; * waited in the car for 20 minutes and a further 10 minutes after getting out of the car. 1. The sentencing judge stated that these matters were inconsistent with the assault being impulsive. He noted that in addition to being armed, the offender was also in company. 2. The sentencing judge compared and contrasted the offence committed with those the subject of three other cases. He stated the case could be distinguished from AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203 which he stated involved a more prolonged attack using kicks and punches, as well as stomping on the victim's head. The attack resulted in the victim sustaining traumatic brain injuries, leaving him with substantial disabilities including chronic head pain, a high level of impairment of balance and substantial cognitive impairment. He noted that the Court of Criminal Appeal held that the sentencing judge did not err in finding the offence was "well within the upper end of the range". 3. The sentencing judge noted that in that case the offender was aged 16 years and 2 months at the time of the offence and had no prior convictions although he did commit a robbery whilst on bail. The Court of Criminal Appeal dismissed an appeal against a sentence of 7 years with a non-parole period of 3 years imposed after a 25% discount for the plea of guilty. 4. The sentencing judge contrasted the case with R v Stunden [2011] NSWCCA 8 because the respondent in that case did not lie in wait for the victim and the offence was spontaneous and in response to the victim pushing his bike towards the respondent. He noted there was also larceny and possession of cannabis taken into account by way of a Form 1. The sentencing judge pointed out that the victim in that case was in a relationship with the respondent's ex-girlfriend and the victim invited the respondent to a park where he pushed his bike at him. The ensuing assault was prolonged and involved hitting the victim who sustained multiple fractures to the bones in his face and injury to one eye leaving him effectively blind. The respondent in that case was 19 years of age and the victim was a 15 year old school student. The respondent was sentenced to 3 years with a non-parole period of 2 years to be served by way of periodic detention. The Court of Criminal Appeal allowed a Crown appeal, and after a 25% discount for an early plea of guilty imposed a sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months. Garling J stated (at [104]) that a finding that the offence was below mid-range was only open if it was found to be marginally below that range. 5. The sentencing judge noted that in the present case the offence happened so quickly the victim had no chance to defend himself and that the victim was traumatised and suffered from permanent physical and cognitive difficulties. He stated that the victim's poor balance and being prone to falling is something likely to draw attention to him when in a public place. 6. The sentencing judge also had regard to the decision of this Court in R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296, a case where the respondents encountered the victim, who the respondent Mitchell believed had sexually assaulted him when he was aged 10 or 11. The attack was brutal, the victim sustained severe injuries, was confined to a wheelchair, had limited speech and severe cognitive problems. Mitchell was aged 21 and Gallagher aged 20 at the time of the assault, whilst the victim was aged 25. Mitchell had a criminal record and was on a bond for assault at the time of the offence. He had been using drugs and alcohol around the time of the offence whilst Gallagher had no prior convictions and a sound work history. 7. The Court of Criminal Appeal found that the sentencing judge erred in finding the offence fell at least within the mid-range of objective seriousness and said it fell well above it. 8. In dealing with that case the sentencing judge pointed out that the consequences to the victim were more serious than in the present case. He noted that the Court accepted that the respondent's belief that the victim was a person who had sexually assaulted him was relevant to an assessment of the seriousness of the offence but that the Court had stated (at [30]) that it was of limited mitigating value. The sentencing judge noted that in that case the Court increased the sentence imposed on Mitchell from a sentence of 8 years with a non-parole period of 4 years to a sentence of 12 years with a non-parole period of 7 years and that of Gallagher from a sentence of 5 years and 2 months with a non-parole period of 2 years and 6 months to a sentence of 9 years and 4 months with a non-parole period of 5 years. The sentences were arrived at after a 15% discount for a plea. 9. The sentencing judge noted that in the present case that whilst the respondent's emotions were aroused it was not a spontaneous offence. He concluded the offence was well above the middle range of seriousness for offences of this nature. 10. The sentencing judge accepted that the respondent was in a vulnerable state because of his wife's infidelity and that the consumption of ecstasy for the first time contributed to poor decision-making and judgment. The sentencing judge also accepted that what the respondent had witnessed in Iraq and the discrimination he experienced adversely impacted on his development and compromised his ability to deal with frustrations and setbacks in life. However, he stated there was no evidence that the respondent did not know what he was doing or the consequences of his conduct. The sentencing judge noted the following matters: * the attack was not impulsive; * the matters previously referred to indicating the attack was not impulsive; * he drove to and from the scene without incident and was physically able to send text messages that made sense and were responsive to those sent by the co-offender; * in the hour before the offence, during the exchange of text messages, the offender indicated that he did not want to get the co-offender into "any troubles, walla"; * on 12 November 2014 the offender told the co-offender that, in the days after the offence, he had looked for the pieces of wood, which was clearly a reference to the weapon used to attack the victim. 1. The sentencing judge noted the respondent pleaded guilty on arraignment. He said without elaboration it was appropriate to allow a discount of 20% to reflect the utility of his plea. 2. The sentencing judge noted that on 15 August 2016, the respondent signed an undertaking indicating he was prepared to give evidence at the trial of his co-accused. The sentencing judge noted the offer of assistance came very late. 3. The sentencing judge also recorded that on 24 August 2016, the respondent made a statement to the police and on 13 September 2016, signed an undertaking to give evidence in accordance with that statement. He said the statement was adverse to the respondent and in those circumstances enhanced his credibility. The sentencing judge stated that the evidence had the capacity to enhance the Crown's case against the co-accused particularly on the issue of identification as well as any issue of voice identification which might arise. 4. The sentencing judge noted the Court was not furnished with evidence the prosecution intended to present against the co-accused apart from that of the respondent. The sentencing judge inferred that the prosecution had viewed his evidence as being of some assistance whilst noting the Crown did not concede that it had no other evidence implicating the co-accused. 5. The sentencing judge noted the respondent's statement had been served on the co-accused and there was no evidence of any threat to the respondent or his family. He stated, however, the Court could not rule out the possibility of such threats in the future and there was a possibility the respondent would be placed in protective custody. In the circumstances the sentencing judge granted a combined discount on sentence of 45% of which 15% was for future assistance. 6. The sentencing judge concluded that the respondent's prospects of rehabilitation and not reoffending were reasonable. 7. The sentencing judge stated that because of the respondent's young age, moderate reduction in moral culpability and the adverse impact of his childhood experiences on his development, greater weight should be given to rehabilitation and less weight to deterrence. The sentencing judge stated that did not mean that no weight was given to deterrence. 8. In fixing the non-parole period the sentencing judge found special circumstances due to custody being more onerous than experienced by prisoners generally and the need for the maximum possible period of supervision. 9. In the circumstances, the sentencing judge imposed the sentence to which I have referred at [4] above. The Crown submissions 1. The Crown correctly acknowledged that Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912, must be brought for the primary purpose of this Court providing governance and guidance for sentencing courts. It was accepted that this limited the jurisdiction of the Court so as to prevent intervention (other than on the ground that the sentence is plainly unjust by reason of its manifest inadequacy) for the mere correction of error in individual sentencing proceedings. 2. The Crown submitted that where there is in substance only one ground of appeal, manifest inadequacy, the identification of specific errors whilst not required may assist to explain why a sentence was so manifestly inadequate to be plainly unjust. 3. The Crown referred to the fact that the maximum penalty for the offence is 25 years and the standard non-parole period is 7 years. The Crown referred to the following matters identified by the sentencing judge as relevant to the objective seriousness of the offence: * the victim suffered permanent physical cognitive difficulties which had a substantially adverse impact upon his quality of life; * the offence was motivated by jealousy; * the respondent instigated the offence, planned it and recruited a juvenile co-offender; * although the respondent had problems with anger and impulsiveness, he had the opportunity to withdraw before actually committing the offence; * the matters that went to the planning and premeditation included searching Facebook posts of the victim; discovering some time during the afternoon that his wife and the victim were to meet later that night; recruiting the co-offender at about 3.00pm; obtaining the baseball bat; sending text messages to the co-offender; going to an area where it was dark and there were no cameras and waiting for 20 minutes in his car and 10 minutes after getting out of the car; * although the crime was motivated by passion it was premeditated; * in addition to being armed the respondent was in company; * the respondent struck the victim with the baseball bat only once, but he directed the weapon at a vulnerable part of the victim's body (his head) and the assault continued after the victim fell to the ground but appears to have been over a short period; * the respondent and the co-offender voluntarily withdrew no doubt because the respondent had achieved what he had intended. 1. The Crown submitted that taking these matters into account, the finding of the sentencing judge that the offence was well above the middle-range of seriousness was open to him, but that the sentence, particularly the non-parole period, was not reflective of this finding. 2. The Crown submitted that whilst the sentencing judge indicated he did not give "no weight" to general deterrence, the sentence imposed did not properly reflect the weight that should have been given to general and specific deterrence. It was submitted that the offender's subjective circumstances must be appropriately balanced with the objective seriousness of the offence, including the need for a sentence to reflect general deterrence and denunciation. It was submitted that none of the matters of mitigation could justify the head sentence imposed. 3. The Crown referred to the authorities considered by the sentencing judge (see [23]-[29] above), and pointed to the variety of factors which distinguished those cases from the present. It submitted that notwithstanding those distinguishing factors, those cases do demonstrate that the sentence imposed on the respondent was plainly unjust and indicative of error. Reference was made in particular to what was described as significant pre-meditation and planning, the recruitment of a young accomplice and the gravity and enduring nature of the injuries. 4. The Crown accepted at the hearing that the head sentence imposed pre-discount would have been a little in excess of 12 years, which it accepted would not be manifestly inadequate. It was submitted that the extent of the discount and the non-parole period were at the crux of the matter. 5. So far as the non-parole period was concerned, the Crown accepted it was open to adjust the ratio of the non-parole period to the total term on the basis of special circumstances. However it was pointed out that the primary focus should be assessing the minimum period of actual incarceration necessary to give effect to the multiple purposes of sentencing. 6. The Crown also submitted that the basis on which the sentencing judge found special circumstances to vary the ratio of the non-parole period to the head sentence was erroneous. It was submitted there was no evidence the respondent would be serving his sentence in protective custody. 7. In relation to the second reason given for the finding of special circumstances namely "the need for the opportunity for the maximum period of supervised parole", the Crown pointed to the fact that it was incorrect to state that the fixing of the non-parole period should be determined solely by considerations of rehabilitation. The Crown submitted that the focus should not solely be on the percentage portion that the non-parole period bears to the total term, but rather that the actual period of imprisonment involved is equally and probably more important. 8. The Crown submitted there was no evidence that a parole period of 3 years and 8 months was necessary to assist the respondent's rehabilitation and there was nothing to justify the variation of the statutory ratio to 45%. 9. The Crown also contended that the discount of 20% for the utilitarian value of the plea was erroneous. It was submitted by reference to the argument which took place at the sentencing hearing, that the sentencing judge awarded a discount based on the administrative arrangements of the District Court at Parramatta, an approach which was said to be erroneous. The Crown accepted at the hearing the sentencing judge was entitled to give a discount and the amount of such discount was discretionary. 10. In relation to the discount for assistance the Crown noted that the assistance, which related to the identity of the co-offender, was given after the co-offender was charged and was thus not of assistance in the police investigation. It submitted that as there was no evidence the respondent was in protective custody that could not be taken into account in mitigation in the determination of the sentence or in the finding of special circumstances where there is no evidence the conditions of imprisonment would be more onerous than those to which prisoners normally are subjected. The respondent's submissions 1. The respondent submitted that a 45% discount on sentence was appropriate because of a number of subjective and objective factors relating to the offence. The first was the respondent's disturbed background, his psychiatric condition, his age, the fact that the attack was a single act, the offer to give evidence against his co-accused and the full and frank statement he made in connection with that offer. These submissions presumably were directed to the proposition that the sentence arrived at after discount was not unreasonably disproportionate to the nature and gravity of the offence. 2. The respondent pointed to the fact the plea was entered on 17 December 2015 and the sentencing proceedings did not take place until 15 August 2016. He submitted that the sentencing judge was entitled to give a 20% discount because the plea facilitated the course of justice. Senior counsel for the respondent submitted at the hearing that 20% was within the range open to the judge in the proper exercise of his discretion. 3. Senior counsel for the respondent described the sentence as lenient but one within the range which could be imposed. Consideration 1. The principles on which an appellate court will determine that a sentence is manifestly excessive or inadequate are well-established. An appellate court is not entitled to interfere with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60]. 2. In cases such as the present where there is only one ground of appeal, manifest inadequacy, it is not necessary to identify specific error. As was pointed out in Dinsdale supra (at [6]) manifest inadequacy is a conclusion not dependent upon attribution of identified specific error and frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive: see also R v Harris [2015] NSWCCA 81 at [46]. Nevertheless, as was pointed out in Harris, identification of specific error may help explain why the sentence is inadequate. 3. In the present case there are a number of matters which should be noted. First, it was not suggested that the sentencing judge did not correctly identify the objective seriousness of the offence or (subject to one consideration) not give proper consideration to the respondent's subjective case. Rather it is suggested in weighing these factors the sentencing judge did not adequately balance the seriousness of the offence and a need for general deterrence with the respondent's subjective case. 4. Further, as I have pointed out, the Crown accepted in oral argument that the sentence which would have been imposed prior to the grant of a 45% discount, namely, approximately 12 years and 1 month, would not be manifestly inadequate. That concession, in my opinion, was correct having regard to the maximum penalty imposed for the offence and the standard non-parole period (see [2] above), the objective seriousness and the respondent's subjective case which I have outlined above. 5. In relation to the head sentence the real issue is thus whether the extent of the discount for the plea (20%) and for assistance (25%) render the sentence manifestly inadequate. The Crown put its case in the main on the basis that the discounts were excessive, having regard to the utilitarian value of the plea and the extent of the assistance provided. However, it was also submitted that the extent of the discount resulted in a sentence which was unreasonably disproportionate to the nature and circumstance of the offence: Crimes (Sentencing Procedure) Act 1999 ss 22, 23. 6. In R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102, Howie J with whom McClellan CJ at CL and Simpson J agreed, stated at [31] that it was difficult to see how in the usual case a plea of guilty on arraignment could justify a discount of more than about 15%. However, it does not inevitably follow that a greater discount necessarily involves an error of discretion. 7. In the present case the plea was entered on or about the time of arraignment, certainly before any other substantive steps had been taken in the District Court. In those circumstances it does not seem to me that a discount of 20%, whilst generous, involves an error in the exercise of the sentencing discretion. 8. In reaching this conclusion I am conscious that in argument concerning the issue, the sentencing judge referred to particular listing difficulties at the Parramatta District Court. However, there is nothing in the remarks on sentence to indicate that the discount was influenced by the particular listing arrangements at the Parramatta District Court, contrary to what was said in Borkowski supra at [31]. 9. So far as the discount for assistance is concerned, I have read the respondent's statement which was confidential Exhibit D in the Court below. The statement provides information as to the identity of the co-accused, the circumstances in which he came to be involved in the offence and his actual involvement. As the sentencing judge pointed out, part of the statement was against the interest of the respondent. 10. The extent to which the statement provided assistance could only be properly measured by reference to other evidence in the possession of the Crown implicating the co-accused. However, apart from declining to concede that it had no other evidence implicating the co-offender, the Crown did not indicate what evidence was in fact available. In the circumstances it does not seem to me that the sentencing judge erred in allowing a discount of 25%. 11. Nor do I consider that the resulting sentence was unreasonably disproportionate to the nature and circumstance of the offence. As the Crown pointed out, the relevant question in the appeal is whether it was open to the primary judge to conclude the resulting sentence was not unreasonably disproportionate to the nature and circumstances of the offence: CMB v The Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9 at [78]. 12. I have considered the cases referred to by the primary judge. To the extent they provide assistance, they do not suggest it was not open to the judge to find that the resulting sentence was not unreasonably disproportionate to the nature and circumstances of the offence. None of the cases involved a discount for assistance. Further, the only case where a substantially greater sentence was imposed to that in the present case, R v Mitchell; R v Gallagher supra, as the sentencing judge pointed out, involved injuries which were more serious than those suffered by the victim in the present case. 13. In the circumstances it seems to me that it was open to the sentencing judge to conclude that the ultimate sentence was not unreasonably disproportionate to the nature and seriousness of the offence. It follows that the head sentence was not manifestly inadequate. The non-parole period 1. However, it does seem to me that the non-parole period was manifestly inadequate in failing to reflect the minimum period of imprisonment required having regard to the criminality of the offence. As Spigelman CJ pointed out in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [65], the proper exercise of the discretion to vary the statutory ratio between the head sentence and the non-parole period is confined by the need to ensure that the time an offender must spend in prison reflects all the circumstances of the offence and the offender including the objective gravity of the offence and the need for general deterrence: see also R v GWM [2012] NSWCCA 240 at [118]. 2. There are difficulties with the basis upon which the sentencing judge found special circumstances in varying the statutory ratio. First, there was no evidence that the respondent's imprisonment would be any more onerous than that of other prisoners. There was no evidence he was in protective custody and to the extent the judge considered that might be necessary in the future, it was mere speculation not based on any evidence. Further, to the extent the non-parole period was imposed for the opportunity to give the respondent the maximum period of supervised parole, the sentencing judge was not referred to reg 218 of the Crimes (Administration of Sentence) Regulation 2014 (NSW) which provides for a maximum period of supervision of 3 years. 3. More fundamentally, the sentencing judge did not appear to consider whether having regard to the objective seriousness of the offence and the need for general deterrence, a minimum period of 3 years imprisonment adequately reflected the seriousness of the offence taking into account the respondent's strong subjective case. In my opinion it did not. The attack was both premeditated and vicious, the seriousness of such offences being recognised by the maximum penalty and standard non-parole period. For an offence which the judge correctly described as being above the mid-range of seriousness for offences of this nature, a non-parole period of 3 years in my opinion was manifestly inadequate. The residual discretion 1. It is necessary, however, to consider whether the residual discretion not to re-sentence should be exercised. The onus is on the Crown to negate any reason why the residual discretion not to interfere should be exercised: CMB supra at [56], [66]. In this context it is necessary to bear in mind the limited purpose of Crown appeals being concerned not with the correction of error in particular cases, but rather laying down principles for the guidance of sentencing courts: Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44 at 310; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1]. 2. Whether or not the non-parole period imposed could be said to be such as to amount to an affront to the administration of justice (see Green v The Queen; Quin v The Queen supra at [42]), the effect of my conclusion that the non-parole period was manifestly inadequate involves a finding that the sentence was plainly unjust. Further, it is important that sentencing courts are reminded that varying the statutory ratio not only requires consideration of the subjective circumstances of the offence and the prospects of rehabilitation, but also the seriousness of the offence so as to ensure that the minimum period of imprisonment properly reflects its nature and gravity. 3. The respondent whilst submitting the residual discretion should be exercised, put no further submissions in support of that proposition. 4. In these circumstances it is appropriate in my view not to exercise the residual discretion and allow the appeal, but only in so far as it relates to the non-parole period. Resentencing 1. I have set out above the facts surrounding the offence and subjective circumstances of the respondent and I will not repeat them. It was accepted that it was open to the sentencing judge to find special circumstances and to vary the statutory ratio. Taking into account the seriousness of the offence, the subjective circumstances of the offender and his need for supervision on release to parole, a non-parole period of 4 years and 4 months is the minimum period of imprisonment appropriate in the circumstances of the present case. Conclusion 1. In the result, I would make the following orders: 1. Appeal allowed. 2. Set aside the sentence imposed on the offender and in lieu thereof sentence the offender to a term of imprisonment commencing on 30 September 2016 comprising a non-parole period of 4 years and 4 months and a balance of term of 2 years and 4 months, expiring on 29 May 2023. The earliest date on which the respondent will be eligible to be released to parole is 29 January 2021. 1. R A HULME J: I agree with Bathurst CJ. 2. BEECH-JONES J: I agree with Bathurst CJ. ********** 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: 05 May 2017