R v CHARNOCK [2016] NSWDC 429

District Court New South Wales

Medium Neutral Citation: R v CHARNOCK [2016] NSWDC 429 Hearing dates: 9 June 2016 Date of orders: 15 July 2016 Decision date: 15 July 2016 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Matters on a Form 1 taken into account. Convicted: Sentenced to a term of imprisonment of 3 years 2 months with a non-parole period of 9 months. Catchwords: Criminal – Sentence, breach of conditional liberty, parity, Legislation Cited: Crimes (Sentencing and Procedure) Act 1999 Cases Cited: Muldrock v The Queen [2011] HCA 39 R v Astill (1992) 63 A Crim R 148 Category: Sentence Parties: Regina Daniel Keith CHARNOCK Representation: Counsel: Mr Sabhakwill - Director of Public Prosecutions Mr Winch - Offender

Solicitors: File Number(s): 2014/247473

SENTENCE 1. HIS HONOUR: On Friday 10 June 2016 having heard evidence, submissions and undertaken a view most of the previous day, that is 9 June 2016, I proposed giving my remarks on sentence in relation to Matthew Davis, Rebecca Smith and Daniel Charnock. Before I embarked upon those remarks however, I pointed out one of the difficulties that arose in relation to Mr Charnock, bearing in mind I was aware from his criminal history that he had been sentenced by her Honour Judge English in December 2015 to a sentence effectively of six years and nine months imprisonment with a non-parole period of four years imprisonment, such sentences all commencing on 22 August 2014, in relation to serious drug supply offences. 2. The practical problem was that ultimately, in the context of the sentences I had decided in relation to Mr Davis and Ms Smith, the appropriate sentence for this prisoner in this matter would be less than that imposed by her Honour. Usually when sentencing the one offender at the one time in relation to a series of offences, one would normally, as a matter of common sense I would have thought, impose the lesser sentences first and make the greater sentences either accumulative or partially accumulative upon the lesser sentences so that proper consideration could then be given to the fixing of the non-parole period. 3. One of the problems I had when I embarked on sentencing Mr Davis and Ms Smith and making remarks about the facts relevant to Mr Charnock was that whilst I had the effect of the sentence of her Honour I did not have her remarks on sentence. I now have those remarks on sentence and clearly in the context of the actual penalties imposed and the facts found by her Honour, the two matters to which the prisoner had pleaded guilty, as well as the matters on the Form 1 reflected substantial criminality. 4. In relation to that sentencing exercise of course, it had a salience in respect of the current matter with which I am concerned because, unlike Mr Davis and Ms Smith, the prisoner committed the offence for which I am to sentence him, whilst on bail. Thus he was in breach of conditional liberty which is one of the aggravating factors identified in s 21A(2) Crimes (Sentencing Procedure) Act 1999. A very significant matter I was concerned to understand precisely the character of the offending. It is to be fairly said the offending for which he was on bail was very different to the offending with which I am concerned. I have made the point, I do not need to labour the point, but it is clear on the facts relating to Mr Charnock that his involvement in this offending was entirely unpremeditated. Impulsive might be another way to describe it. He was obviously a friend of Mr Davis, he got involved in Mr Davis's violence initially as I pointed out in my previous fact finding, by trying to separate the ultimate victim from the attack of Mr Davis. But as more people became involved in the melee he became a more active and aggressive participant in the crime that he has pleaded guilty to, the details of which I set out in my earlier judgment at page three of that judgment and I need not repeat it. 5. The offence that he pleaded guilty to had a standard non-parole period. I made an assessment of the objective seriousness of the offending of Mr Davis in the context of this prisoner not starting the affray. At one stage seeking to be a peace maker, but then becoming an active participant. I would assess the objective seriousness of this offender's actions as slightly below that of Mr Davis. 6. These remarks on sentence ought to be read with my earlier remarks in relation to Smith and Davis. The remarks I made about the relevance of the standard non-parole period and other factors to be taken into account in the assessment of the objective seriousness of the offending when I gave my remarks on sentence on 10 June 2016 equally apply in this case and I need not repeat them. The sentencing of this offender requires reference to some other matters that I did not dwell upon in treatment of the matter in Queanbeyan. 7. Firstly, in relation to the prisoner Mr Charnock there was the issue of the pre-sentence report to which I made brief reference on the last occasion. The prisoner of course had a previous s 10 bond which was a relatively minor matter which is referred to in the report. The pre-sentence report noted the prisoner's relationship with a young women and their child who is one year of age. He is supported by his partner according to the pre-sentence report and she will support him on his release from custody. The prisoner has another daughter aged seven years as a result of a previous relationship, that relationship lasted for approximately six years. 8. The prisoner, although born in Sydney, was raised in Queanbeyan. He is a local person and no doubt well familiar to various participants in this affair. Both the offenders and those trying to quell the scene as I described it in my previous remarks. 9. He had a stable upbringing. No history of drug and alcohol abuse or domestic violence in his domestic circumstances as a child and he is supported by both his parents. 10. He has said to the Community Corrections Officer that he was well affected by alcohol at the time he committed the offence. He normally did not drink alcohol to excess but had been drinking on this occasion for a number of hours prior to committing the offence. The remarks on sentence of her Honour Judge English reflected that he may well have in the past, not on this particular night I hasten to say, rather be involved in the use of drugs than the use of alcohol. 11. As I said in my previous remarks the abuse of alcohol is not a mitigating factor. Too many acts of violence, gratuitous, sometimes impulsive, sometimes premeditated, are perpetrated by people well affected by alcohol and it is not much consolation to anyone who is the victim of such violence that the person who attacked them was affected by alcohol. 12. He expressed regret for his conduct. He described as "stupidity". He is quoted in the presentence report as stating "I feel like a complete grub" reflecting upon the permanent impact upon the victim with whom, as I would understand it, this prisoner had no grudge whatsoever. I hasten to say as would be self-evident from the earlier remarks that if there be a dispute between Ms Smith and Mr Davis with the victim, it was not of this prisoner's making I have got no doubt that this prisoner did not go to the hotel with a view to being involved with any fight with the victim. He was present or nearby when Mr Davis struck Mr Hancock without any reason whatsoever, other than a claim to concern about his own welfare which was completely misconceived, as I have already pointed out. It seems to me that, as I have said earlier, impulsively he involved himself in this affair out of loyalty to his friend. In fact he said to the Community Corrections Officer, "he felt obligated to help out a mate". But he now acknowledges his wrongdoing. 13. He is described in the assessment by the Community Corrections Officer as a "quietly spoken and intelligent individual who is fully cognisant of the seriousness of the index offence". He fully understands the character of the injuries and he understands the correlation between his consumption of alcohol and the commission of the offence without seeking to minimise his responsibility for his behaviour. 14. There have been a lot of discussions with the Community Corrections Officer with his parents and his partner and whilst in custody now in relation to the substantial sentence imposed upon him by Judge English. He is able to reflect upon "poor life choices to date" and some "underlying immature attitudes" that have affected his conduct. 15. Community Corrections is: "encouraged by the degree of insight which the prisoner has displayed especially in respect of ongoing suffering of the victim, the victim's family and also his own family. Community Corrections is further encouraged that the offender has the support of both his present partner and his parents who have determined that the offender will one day return to the community as a law abiding and productive individual." 1. The prisoner will need to undertake courses whilst in custody particularly to address issues of addiction and aggression as was demonstrated on this night, although I accept as a general proposition that he is not an aggressive person, such limited criminal history as he had which is very limited does not reflect this in my opinion. I had evidence before me at the sentence proceedings which I have taken into account. The written letter from the prisoner reflects upon his stupid actions and the regret he had for what he did. The positive steps he has taken in custody, as best one can in custody of course. Gaols are not universities or colleges of advanced education, their limitations are well known, but he would hope to take advantage of what is available to him. He is looking forward to a new life when he is released from custody. I have the reference from Nicole Davy reflecting upon the positive aspects of the prisoner's character as well as a reference from Toni Hoete who has known for eleven years and is currently in a relationship with him and also reflects upon his good character generally speaking. In his life he has been reliable, honest, hardworking, friendly and trustworthy according to her. He has not come across to her as an "angry person" and, as I have earlier pointed out, I accept for the purposes of sentencing that his conduct has been uncharacteristic. Thus, in the context of s 21A(3) matters to be taken into account, that is "mitigating matters", I accept that the offence was not part of planned or organised activity. The prisoner did not have a significant record of previous convictions. 2. I cannot conclude ultimately that the prisoner was a person of good character at the time of the offending because he was an unconvicted drug supplier. Thus, the offending involving the convictions before her Honour Judge English had already occurred but I am prepared to accept in light of the material available to me produced on sentence that in the reality of the situation he now is in, the steps he can take for the future and the observations of Community Corrections, he is unlikely to reoffend. He has good prospects of rehabilitation. Particularly that he has shown remorse for his offending by taking responsibility and otherwise complying with the requirements of s 21A(3)(i). His plea of guilty is a mitigating factor, for that he receives a discreet discount. He receives in my view the same discount for the utilitarian benefit of the plea of guilty as I was prepared to give to Mr Davis for substantially the same reasons. It is a matter of regret however that he sought to embroil himself in other people's problems. 3. I referred in the course of the submissions being made to me to some aspects of the written submissions of learned counsel that I cannot take into account. It is clear that the standard non-parole period does have a direct application in this matter in the sense that it is relevant, but to be considered in the context of the provisions to which I earlier referred in the earlier judgment embolded or enhanced by the observations of the High Court in Muldrock v The Queen [2011] HCA 39, before s 54A(2) and s 54B(2) were amended. 4. I have taken into account all that has been put on behalf of the prisoner. I have determined that there should be a finding of special circumstances in respect of the fixing of a non-parole period in respect of the offending with which I am concerned, ultimately it will have the unfortunate effect of disturbing to some extent the if I could call it "percentage" relationship of the effective non parole period with the balance of sentence. But, unfortunately, there is nothing I can do about that matter except, as I have pointed out in the course of discussion with learned counsel for the prisoner, somewhat adjust the non parole period to reflect the need for an extended period of supervision to assist the prisoner to adjust to community living, to assist him in his rehabilitation and to address the issues that are identified by the Community Corrections Service. 5. In that regard of course I am mindful of general principles, without citing authority, that in fixing a non-parole period for a term of imprisonment, even giving full weight to "special circumstances", one cannot fix a non-parole period, to use a time honoured phrase, that will be "an affront to the administration of justice". 6. There is another abiding issue here and I have already referred to it in the context of the sentencing of the other offenders. It is particularly pertinent given the common charge of this prisoner with Mr Davis. That is the issue of parity. As I said on the last occasion, reflecting upon the observations of Justice Rothman in the case of Jimmy from 2010, Aristotelian principles of equality required that a like shall be treated alike and the unalike shall be treated unalike to the extent of their unalikeness based on rational reasons. There are many alikenesses between Mr Davis and this prisoner in relation to the objective offending. On the other hand this prisoner has the presence of an aggravating factor not present in the case of Mr Davis, the commission of this offence whilst on conditional liberty in relation to substantial offending reflected by her Honour Judge English's sentencing remarks. 7. That of itself does not necessarily require the same sentence to be imposed by this prisoner as upon Mr Davis. But it seems to me allowing for the differences between the two men with Mr Davis having a slightly more favourable subjective case, other than by the consideration of matters like criminal history and the breach of conditional liberty, the justice of the case ultimately requires me, both receiving the same discount for the utilitarian benefit of a plea of guilty, to fix the same sentence for this prisoner as I fixed upon Mr Davis. 8. I made an adjustment to Mr Charnock's non-parole period to reflect the fact that there was to be accumulation or partial accumulation upon the sentence required to be imposed for the attack upon Mr Hancock for which this prisoner is not responsible. In this particular matter, given the disturbance that occurs to the effect of the sentence imposed by Judge English, I have determined that for this prisoner I am required, given the practical difficulty that I earlier mentioned to fix a non-parole period slightly less than that imposed upon Mr Davis. But this is to reflect the particular "special circumstances" that arise in this case. The matters that I have identified and particularly, in the context of decisions such as Astill from the late 1980's, the practical effect of a partial accumulation of this sentence upon the sentence imposed by her Honour Judge English. 9. In Astill for whom I appeared in a different proceedings in a murder trial involving the killing of his child Mr Astill was sentenced to a series of partially accumulative sentences where the sentencing judge fixed a non-parole period that was 75 per cent upon the last sentence but had the effect of a non-parole period which was something in the order of 80 or 90 per cent of the total sentence. Astill was authority for the proposition that when one is fixing accumulative sentences one has to be sensitive to adjust the final non-parole period fix so as not to ensure that an injustice arises from a failure to pay heed to the effect of the earlier imposed sentences. 10. Thus, in this particular matter I have concluded that I should fix a non-parole of nine months accumulative upon the non-parole period imposed by her Honour and thus also adjust the balance of the sentences I have indicated. I do not believe in the circumstances of the matter, there is much else I can add given the remarks on sentence that I gave back in June 2016. The observations I made at the end of my judgment concerning the importance of the restoration of offenders, reflected in decisions like Yardley v Betts, may be said not to have as much salience in this exercise as they were for example in the case of Mr Davis, given that this prisoner was involved in offending before the events with which I am now concerned. But they still have some relevance to the proceedings and I have taken that into account. 11. You do not have to stand up Mr Charnock, there is no point in you standing up in a room. That would be an absurd situation. It would be a bit like Monty Python type situation without making light of the situation. 12. In the matter what I propose to do is as follows: 13. In respect of the offence to which you pleaded guilty, there is that one matter on the Form 1 too of course the assault, I have not forgotten that, I will come to that in a moment. 14. In respect of the offence to which you pleaded guilty taking into account the matter on the Form 1, you are convicted. You are sentenced to a non parole period of nine months which will commence on 22 August 2018 and expire on 21 May 2019. In respect of that sentence I fix a balance of sentence of two years and five months and that sentence will expire on 21 October 2021. I cannot direct that you be released to parole at the expiry of that non parole period because it is more than three years effectively because that is what the effect of Judge English's sentence was. It will be a matter for the Parole Authority if you are to be released to parole. 15. In fixing that sentence as I have said I have taken into account the matter on the Form 1, I think the same observation can be made in relation to that matter on the Form 1 as I made in respect to the matter on the Form 1 in respect of one of your co-accused. It is not a matter of great salience in this sentencing exercise. It was an offence committed very incidental to the principle offence, I am very mindful of what has been said about the treatment of Form 1 matters by the Court of Criminal Appeal and the guideline judgment and in my view it does not substantially impact upon the assessment of the objective seriousness of the offending required to be considered for the purposes of fixing the sentence for the principal offence. 16. Anything from you Mr Crown? 17. SABHAKWILL: No your Honour. 18. HIS HONOUR: Are those dates right, nine months to commence on 22 August 2018 expiring on 21 May 2019. You will be eligible for release to parole on 21 May 2019, do you understand? 19. OFFENDER: Yep. 20. HIS HONOUR: And the balance of sentence will be two years and five months. Thus the effective sentence you are now serving is seven years and three months. The non-parole period in an effective percentage terms will be slightly higher than 66 per cent. It will be around about 66 per cent or thereabouts, perhaps slightly higher but less than three quarters of the total sentence. 21. So as I say you will eligible for release to parole Mr Charnock on 21 May 2019. The backup charges are withdrawn and dismissed.