R v MF

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgment of McCallum J in draft.

2. [2]

   I agree with the orders proposed by her Honour and, subject to what I have written below, with her Honour’s reasons.

3. [3]

   For my part, I have some doubt as to whether the sentencing judge in fact took into account considerations of general deterrence in fixing the head sentence which he imposed, as distinct from considering it in the context of fixing a non-parole period.

4. [4]

   However, irrespective of whether his Honour fell into error, in regard to the sentence imposed, the Crown has not put forward any reason as to why the Court of Criminal Appeal should not exercise its residual discretion not to interfere. To the contrary, the exceptional circumstances of the present case mean that any resentencing exercise undertaken by this Court would provide no guidance for Courts with a duty to sentence persons for the relevant offence. While the sentence imposed may be considered somewhat lenient, it is not so lenient as to constitute an affront to justice such that intervention is necessary. The authorities are discussed by McCallum J in her judgment in terms with which I respectfully agree. In the circumstances, the appeal should be dismissed.

5. [5]

   ROTHMAN J: I too have had the advantage of reading the judgment of McCallum J in draft and the further comments of Bathurst CJ. I agree with the orders proposed by McCallum J, with her reasons for judgment and with the further comments of Bathurst CJ.

6. [6]

   McCALLUM J: The Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon the respondent after he pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The respondent was a child at the time of the offence and is accordingly referred to as “MF”: Children (Criminal Proceedings) Act 1987 (NSW), s 15A.

7. [7]

   The maximum penalty for an offence under s 33(1)(b) is imprisonment for 25 years. The offence carries a standard non-parole period of 7 years. However, as MF was a child at the time of the offence, the standard non-parole period is to be disregarded: Crimes (Sentencing Procedure) Act 1999 (NSW), s 54D(3); McGrath v R [2010] NSWCCA 48 at [37], [60] per Macfarlan JA and Johnson J respectively; BP v R [2010] NSWCCA 159; 201 A Crim R 379 at [36] per Johnson J.

8. [8]

   MF was arraigned on an indictment containing a count of attempted murder (contrary to s 27 of the Crimes Act) and an alternative count under s 33(1)(b). He initially entered a plea of guilty to the alternative count in the Local Court. That plea was subsequently withdrawn on legal advice (following a change in legal representation) but was entered again on the day of trial. The plea was accepted in full satisfaction of the indictment. The only issue for the proposed trial was whether the respondent acted under duress of such a degree as to amount to a defence. The Crown at sentence conceded that the narrowing of the issues and the ultimate plea had considerable utilitarian value and that a 15% reduction to the sentence would be appropriate.

9. [9]

   Before being sentenced, the respondent signed an undertaking to give evidence against his adult co-offender, who is his cousin. The co-offender’s trial was due to commence in the District Court in June 2015. The Crown at sentence indicated that the respondent’s evidence would be “significant, if not critical.” Without the evidence of the respondent, the Crown case against the co-offender was circumstantial. That is not to say that it was a weak case but only that it would plainly be significantly stronger with the evidence of the respondent.

10. [10]

    The respondent was sentenced by Haesler SC DCJ to a term of imprisonment of 6 years commencing on 16 August 2014 and expiring on 15 August 2020 with a non-parole period of 3 years expiring on 15 August 2017. The judge recorded that he would have imposed a sentence of 11 years but for the plea and the past and promised future assistance given by MF. He allowed a combined discount for those matters of 45%: ROS at [70] and [74].

The offence

1. [11]

   The circumstances of the offence were nothing short of horrific.

2. [12]

   The victim (referred to as “K”) was working as a prostitute in a brothel. The respondent’s cousin, “M”, was a regular client of hers and became infatuated with her. M was aged 41 years at that time. In February 2012, the victim agreed to go on a date with M. He subsequently tried to persuade her to enter into a domestic relationship with him. He offered her a substantial sum of money to quit the brothel and live with him. It was apparent that M did not have the means to fulfil the offer. K declined the offer a few days before the offence.

3. [13]

   MF was aged 17 years at that time. Until the day of the offence, he did not know of K’s existence or of her relationship with M. He later told police that, from about February 2012, M had made increasing efforts to recruit him to harm another person, first offering him money and ultimately resorting to threats of violence (the issue of duress is considered in more detail below).

4. [14]

   On the evening of the offence, 22 March 2012, M collected MF from his home, demanding that he come with him and threatening that he had a gun. At about 9:30pm that night, K caught a taxi to her place of work. MF and M were waiting nearby in a borrowed car. M pointed K out to MF. M gave MF a one-litre milk carton containing accelerant. He also gave him a cigarette lighter, a baseball cap and gloves. M instructed MF to throw accelerant on K’s legs and light it to scare her. He also told MF to snatch her bag and make it look like a robbery. MF got out of the car and approached the victim from behind as she walked down a lane. He grabbed her and forced her to the ground, pouring the accelerant over her. As K got up and ran, MF set her alight with the cigarette lighter. MF fled (leaving behind the milk carton). Workers at the brothel attempted to put out the flames. The attack was witnessed and captured on CCTV.

5. [15]

   Over the following days, M gave MF instructions to take various steps to “throw the police investigation off”, some of which MF followed. MF described himself as “a puppet” to M.

6. [16]

   K suffered enormously as a result of the offence, experiencing serious burns to almost half of her body, including her face, chest and both arms and legs. She was hospitalised for three months and has undergone numerous surgeries, including multiple skin grafts. The sentencing judge noted that “it is highly likely that Ms K will never be able to hold permanent paid employment” and that she will need medical and psychological care for life”: ROS [27]. The gravity of the consequences of the offence and its continuing impact upon K’s life cannot be overstated.

Proceedings on sentence

1. [17]

   The victim read her victim impact statement at the proceedings on sentence (part of exhibit A). The statement gave a compelling account of the terrible ordeal K suffered, and will continue to suffer, as a result of the attack. She has endured unimaginable pain and discomfort. As noted by the sentencing judge, her victim impact statement recorded that she had to re-learn to walk and use her hands and fingers; had five surgeries, including removal of her top lip; had numerous skin grafts taken from the unburnt portions of her body; suffered acute pain and anxiety; required a lifelong stretching regime to stop or slow the scarred skin from contracting; and needed to wear a neck brace and pressure bandages.

2. [18]

   The statement also recorded the terrible psychological impact of the attack. K has suffered and will undoubtedly continue to suffer social isolation and stigmatisation. A number of reports were tendered providing details of her treatment and current medical condition. A psychologist’s report noted that K’s physical scars “serve as a constant reminder of the attack, retriggering, sustaining and reinforcing the emotional and psychological symptoms associated with the assault; this traumatological cycle is perpetuated on a daily basis.”

3. [19]

   The judge gave careful consideration to the terrible consequences of the offence. His Honour said:

4. [20]

   MF was 17 years old at the time of the offence. He came to Australia from Lebanon when he was six months old and was raised by his mother and his sister following his parents’ separation. He had a limited criminal history including several driving offences, an offence of taking and driving a conveyance without consent, larceny and entering enclosed land (the latter two offences being committed after the offence the subject of this appeal).

5. [21]

   MF gave evidence in the proceedings on sentence. He explained the pressure put on him by M in the period leading up to the offence. He said that M had initially offered him $70,000 to do “something criminal”. After MF refused, M threatened to harm his mother and his sister. MF thought they would be “hospitalised badly”. He knew that M was a very violent person who had previously been in gaol. MF said that on the day of the offence M threatened him with a gun and took him from the house with his arm around his neck (T16). He said that, at the point when M told him to attack K, M took out a gun that looked like “a police pistol, a Glock” and pointed it towards MF telling him to “go do the thing”.

6. [22]

   MF had looked at the photographs of K and the doctor’s report and had heard her read her victim impact statement. He said “I still don’t believe I’ve done what I’ve done”. He asked the judge for permission to apologise to her, and did so (T34). The judge found that MF “appeared genuine in his expressions of remorse and willingness to do what he can in recompense, including pleading guilty and giving evidence against M”: ROS [33].

7. [23]

   The judge accepted the report of Dr Neilssen, a forensic psychiatrist, that MF suffers from an adjustment disorder with symptoms of anxiety and depression resulting from the offence, threats he received from M and a fear of retaliation and retribution for cooperating with police. His Honour also accepted the reports of Dr Ahmed, a consultant psychiatrist, and Mr Jones, a clinical psychologist. Those reports explained features of the respondent’s profile which explained why he was vulnerable to M’s pressure, influence and exploitation, including untreated ADHD, an absent and violent father and MF’s “lower average intelligence”.

8. [24]

   As indicated by the structure of the sentence, the judge found that there were special circumstances warranting a departure from the statutory ratio of the balance of term to the non-parole period, being the respondent’s youth, the risks associated with his having provided assistance to authorities and his solid prospects of rehabilitation: ROS at [72].

9. [25]

   The judge found that the respondent’s assistance to police provided a sound basis for his fear of retribution but was not satisfied that MF suffered from a mental illness, or that a mental illness contributed to the commission of the offence: ROS [34] to [38].

10. [26]

    The judge had regard to the contents of a report from Juvenile Justice. Accepting that it would be “preferable” if MF could serve his sentence in juvenile detention, the judge was not persuaded by the report that special circumstances existed for making a direction under s 19(1) of the Children (Criminal Proceedings) Act for that to occur.

Principles governing Crown appeals

1. [27]

   Before turning to the Crown’s particular contentions in this case, it is appropriate to recall the principles governing Crown appeals. Whilst the Director of Public Prosecutions may appeal to this Court as of right under s 5D, the Court’s power in determining such appeals is expressly discretionary (“the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper”).

2. [28]

   The exercise of that discretionary power is informed by the exceptional (purposive) character of Crown appeals: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [24]. It is no purpose of such appeals to supplant the discretion of the sentencing judge. The primary purpose of Crown appeals is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”: Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310 per Barwick CJ; Everett v The Queen [1994] HCA 49; 181 CLR 295 at 300 per Brennan, Deane, Dawson and Gaudron JJ; CMB v Attorney General for New South Wales [2015] HCA 9 at [35] per French CJ and Gageler J; at [55] per Kiefel, Bell and Keane JJ. This is to be contrasted with the purpose of an offender’s appeal, which is to correct individual error so as to uphold every offender’s entitlement to be sentenced according to law.

3. [29]

   The High Court has recently emphasised the existence in this Court of “residual discretion” to dismiss a Crown appeal “notwithstanding that the sentence appealed against is shown to be erroneously lenient”: Green v The Queen; Quinn v The Queen at [24]. The discretion is only “residual” in the sense that it does not fall to be exercised unless the sentence pronounced “turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust”: CMB at [33]. But even where error is established in the sentencing judge’s discretionary decision, the Crown must overcome a second hurdle of negating any reason why the residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at 458, [12] per Heydon JA; approved by the High Court in CMB at [34] per French CJ and Gageler J; at [66] per Kiefel, Bell and Keane JJ.

4. [30]

   The Crown’s written submissions in the present case noted (by way of submission in support of the appeal) that the Crown “had not received any material which would suggest that the court should exercise its residual discretion”. At the outset of the appeal, it was promptly and properly conceded by the Crown that, to the extent that the submission suggested the respondent bore any onus on that issue, it was wrong.

5. [31]

   Green v The Queen; Quinn v The Queen itself was a case in which this Court agreed unanimously that the sentence imposed at first instance was manifestly inadequate; the issue on which the Court was split was the exercise of the residual discretion: R v Green and Quinn [2010] NSWCCA 313; 207 A Crim R 148. The minority (Allsop P and myself) considered that, although manifestly inadequate, the head sentences were “not derisory” and entailed a substantial measure of punishment by full-time imprisonment. Against that finding, the minority would have declined to intervene for two reasons: first, that the sentences proposed by the majority would create unacceptable disparity with the sentence imposed on a co-offender, and so would suffer the Court to become the instrument of unequal justice; and secondly, accepting that the sentences imposed should not be viewed as sentences falling within the permissible range, that the degree of departure from that range was not so great that it would be “an affront to justice” not to intervene, when the decision was understood in the context of the principles stated by the Court: R v Green and Quinn at [20] and [23]. The High Court approved that approach: at Green v The Queen; Quinn v The Queen at [4] to [5].

Grounds of appeal

1. [32]

   In its notice of appeal filed 26 August 2014, the Crown specified a single ground that the sentence pronounced was manifestly inadequate. By later notice filed 23 February 2015, the Crown specified three “additional grounds of appeal”, as follows:

   1. (1)

      his Honour erred in awarding a combined discount resulting in a sentence unreasonably disproportionate to the nature and circumstances of the offence and imposed a sentence that is manifestly inadequate;

   2. (2)

      his Honour erred in assessing the mitigation afforded by reason of the non-exculpatory duress and imposed a sentence that is manifestly inadequate;

   3. (3)

      his Honour understated the relevance of deterrence and retribution and imposed a sentence which is manifestly inadequate.

2. [33]

   As noted by Mr Game SC, who appears for the respondent, those additional contentions should properly be understood as no more than particulars of the allegation of manifest inadequacy: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [22] (and the cases there cited). So much appears to have been accepted by the Crown at the hearing of this appeal (T1.46).

3. [34]

   Having regard to the principles stated above, it follows that the Crown faces two tasks in the present appeal. The first is to establish that the sentence was unreasonable or plainly unjust: Bugmy at [51]. The second is to negate any reason why the residual discretion not to interfere should be exercised.

Sentencing range

1. [35]

   The first task is complicated by the absence of any discernible range of sentences for offending of this kind. Having regard to the unique circumstances of this case, it is difficult to find or provide any useful sentencing standards beyond the guidance provided by the maximum penalty for the offence and the applicable provisions of the Crimes (Sentencing Procedure) Act and the Children (Criminal Proceedings) Act.

2. [36]

   It was not submitted that there was an identifiable range of comparable sentences that would inform the sentence to be imposed in the present case. In a footnote to his written submissions, Mr Game identified some decisions which he correctly observed were “of limited assistance”. To the extent that they are, they do not support the Crown’s complaint of manifest inadequacy:

3. [37]

   Perhaps unsurprisingly, the Crown did not embrace those decisions as being comparable to the present case so as to serve as "yardsticks" illustrating a possible range: cf The Queen v Pham [2015] HCA 39 at [29] per French CJ, Keane and Nettle JJ. As submitted by Mr Game, in the absence of any discernible range, the Crown must establish, in effect, that no reasonable exercise of the sentencing judge’s discretion could arrive, by intuitive synthesis, at the sentence imposed in the present case.

4. [38]

   It is convenient to consider the Crown’s particular complaints in the order in which they were addressed in the written submissions for the respondent.

Duress

1. [39]

   The judge accepted that the respondent acted under duress, saying (at [48] to [50]):

2. [40]

   The Crown’s complaint as to the sentencing judge’s treatment of that issue implicitly contended that, as the duress was necessarily non-exculpatory (as was necessarily conceded by the plea of guilty), his Honour placed too much emphasis on it. It is trite to note that questions of weight in the exercise of the sentencing discretion are a matter for the sentencing judge. The circumstances in which this Court will intervene on such a ground are narrowly confined: R v Baker [2000] NSWCCA 85 at [11]; Stephens v R [2009] NSWCCA 240 at [16] to [18]; R v Majid [2010] NSWCCA 121 at [40].

3. [41]

   In the written submissions, the Crown asserted that the judge “did not expressly characterise the objective gravity of the respondent’s conduct.” It was submitted, “had his Honour undertaken an assessment of, and articulated the extent of the respondent’s criminality, his Honour would have determined that the crime merited a sentence greater than that which his Honour imposed”. There is a degree of question-begging in that submission (in the formal rhetorical sense of that expression); it assumes the correctness of the Crown’s position as one of the premises of the conclusion contended for. To the extent that the submission suggests the proper approach is to articulate a quantitative label for the objective gravity of an offence and to calculate the sentence accordingly, it is contrary to the authority of Markarian v The Queen [2005] HCA 25; 228 CLR 357 (a case in which it may be noted the sentencing judge in this case, when a barrister, appeared for the successful appellant), the correctness of which was recently affirmed in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

4. [42]

   The Crown accepted that non-exculpatory duress “must mitigate both the degree of the respondent’s subjective or moral culpability and his prospects of rehabilitation”, citing Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365 at [41].

5. [43]

   In Tiknius, Johnson J observed at [41] (Tobias AJA and Hall J agreeing at [1] and [104] respectively) that:

6. [44]

   The Crown submitted that the judge’s assessment of the respondent’s criminality as reflected in his remarks at ROS [48] to [50] (set out above) was inconsistent with the guilty plea. I do not accept that submission. As noted on behalf of the respondent, the degree and nature of duress will vary greatly from case to case, from evidence falling just short of a complete defence to something quite minor. Here, the judge accepted that the offence was committed by a teenager in fear of his older, violent cousin; labouring under the belief that his mother and sister would be seriously harmed if he did not do as he was told and after he was threatened with a gun. The judge expressly found, consistent with the plea of guilty, that there were ways in which the respondent could have avoided the harm he apprehended; indeed, his Honour noted the possibility of a “moral choice” to risk enduring that harm rather than inflict harm upon the victim, K. Those findings are reflected in the fact that, notwithstanding the existence of considerable duress operating on the respondent, the sentence he received entailed a substantial measure of punishment by full-time imprisonment in an adult facility.

Discounts on sentence

1. [45]

   As already noted, the judge allowed a combined discount of 45%. A discount of 15% was allowed for MF’s plea of guilty entered on the day of the trial. His Honour noted that the utilitarian value of a plea entered at that late stage would ordinarily warrant a discount of only 10% but accepted that the issues in the trial had been substantially narrowed by the respondent in advance of the trial, since it had been indicated that duress was the only issue. On that basis, his Honour was satisfied that a slightly higher discount was warranted: ROS [40] to [41]. That approach was plainly open in accordance with the authorities cited by his Honour: R v Thomson and Houlton (2000) 49 NSWLR 38 and R v Borkowski [2009] NSWCCA 102.

2. [46]

   As to assistance to law enforcement authorities, it was expressly submitted on behalf of MF at the proceedings on sentence that the assistance in this case was “extraordinary” and that the combined discount for the plea and assistance could be around 40% to 50% (T58.24). Without accepting that characterisation of the assistance, the Crown did not contest that suggested range (T65-66.35).

3. [47]

   The judge carefully weighed the value of the assistance provided by MF, as required by s 23 of the Crimes (Sentencing Procedure) Act. His Honour recorded that the Crown appearing at the proceedings on sentence had described MF’s evidence as “significant, if not critical”. His Honour determined the assistance to be “significant, useful and extensive”, “apparently true and complete” and “timely”: ROS [43]. As required by s 23(4) of the Act, his Honour specified the discount allowed for past and future assistance, indicating an allowance of 15% in each case. His Honour noted that MF’s previous statements could be admissible against M even if MF were to become unavailable for future assistance, citing R v Suteski [2002] NSWCCA 509; 56 NSWLR 182: ROS [70].

4. [48]

   In its contention in the appeal that the combined discount was excessive, the Crown submissions suggested the existence of a mathematical constraint, by custom, on the reduction that can be allowed under the statute. It was expressly submitted that discounts “customarily” range from 20% to 50%. The Crown submitted, in addition, that “the customary range” stands to be informed by more recent authority to the effect that the harsh conditions of confinement in protective custody (which forms part of the rationale for allowing a discount) can no longer be assumed in the absence of evidence.

5. [49]

   Whilst it is of course entirely appropriate to have due regard to previous statements of this Court as to the application of combined discounts, care must be taken not to elevate individual decisions to canons of construction in terms suggesting a qualification of the words of the statute. Parliament has stated the constraint in clear terms in s 23(3) of the Act: a lesser penalty that is imposed under the section “must not be unreasonably disproportionate to the nature and circumstances of the offence”. Any different constraint suggested in judge-made law must bend to those clear words. In any event, the combined discount allowed in the present case fell within the “customary range”.

6. [50]

   The judge expressly turned his mind to the constraint stated in the statute: ROS [47].

7. [51]

   The judge did not expressly refer to a further factor in MF’s favour, which was that he voluntarily disclosed his involvement in the offence. Mr Game submitted that could have warranted a “further element of leniency” under the section: R v Ellis (1986) 6 NSWLR 603; and see CMB at [72]. It may be doubted whether the recognition of any further measure of assistance would have warranted a combined discount of more than 45% but I accept that is a further consideration relevant to the issue whether the reduced penalty was unreasonably disproportionate to the nature and circumstances of the offence.

8. [52]

   Ultimately, in my view, the resolution of this issue turns on whether it is established that the sentence was manifestly inadequate.

General deterrence and retribution

1. [53]

   The specific contention put by the Crown was that the sentencing judge “understated the relevance deterrence and retribution”. The Crimes (Sentencing Procedure) Act does not, in terms, refer to retribution as one of the purposes of sentencing stated in s 3A but does refer to punishment and denunciation which perhaps amount to the same thing.

2. [54]

   Having regard to the terms of the contention (which invite focus on the judge’s stated reasons), it is appropriate to set out the particular passages of the remarks on sentence relied upon by the Crown. The sentencing judge said:

3. [55]

   In my view, far from revealing an erroneous approach those remarks reveal that the judge gave anxious consideration to the purposes of sentencing. Further, I would respectfully agree with his Honour’s analysis. Punishment and deterrence were considered but not at the expense of other, competing purposes for which a court may impose a sentence.

4. [56]

   As recently noted by another judge of the same Court in a different context, whilst consideration must be given to the object of general deterrence recognised in the statute (along with the other objects of sentencing), the proposition that general deterrence must have some determined predominance or a fixed weight in the sentencing exercise is inimical to “the notions of individualised justice, which substantially underpin the exercise of the sentencing discretion”: R v Stockbridge [2015] NSWDC 162 per Whitford SC DCJ at [108] to [110].

5. [57]

   Rehabilitation was clearly an important focus of the reasoning of the sentencing judge in the present case. In light of the fact that the respondent was aged 17 years at the time of the offence, that was an appropriate focus for the reasons stated by his Honour. I am not persuaded that rehabilitation was erroneously given undue weight at the expense of the considerations of punishment or deterrence.

Conclusion

1. [58]

   In the present case, the judge was presented with an extremely difficult sentencing exercise. The particularity of the case called for fine judgments. His Honour exercised his discretion carefully, in accordance with the principles by which he was bound and having regard to all relevant considerations. No specific error is alleged or can be discerned. I am not persuaded that the sentence imposed was unreasonable or plainly unjust. I would accordingly dismiss the appeal.

2. [59]

   It follows that the occasion for exercising the residual discretion not to intervene does not arise. It should be noted, however, that the Crown put no separate submissions on that issue. In accordance with the authorities considered above, that is a matter which should ordinarily be the subject of specific attention in a Crown appeal.

Orders

1. [60]

   The order I propose is:

   1. (1)

      That the appeal be dismissed.