De Wet v R

1. [1]

   HOEBEN CJ at CL: I agree with Harrison J.

2. [2]

   HARRISON J: The applicant was sentenced by his Honour Conlon DCJ in the District Court of New South Wales on 30 April 2014 as follows:

   1. (1)

      On a count of specially aggravated detain for advantage, to a fixed term of imprisonment of 4 years commencing on 13 August 2012 and expiring on 12 August 2016. This is an offence contrary to s 86(3) of the Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment.

   2. (2)

      On a count of inflict grievous bodily harm with intent, to imprisonment for 9 years commencing on 13 August 2013 and expiring on 12 August 2022 with a non-parole period of 6 years expiring on 12 August 2019. This is an offence contrary to s 33(1)(b) of the Crimes Act and carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years.

3. [3]

   The applicant was therefore sentenced to a total effective head sentence of 10 years imprisonment commencing on 13 August 2012 and expiring on 12 August 2022, with a non-parole period of 7 years expiring on 12 August 2019.

4. [4]

   The applicant pleaded guilty to both counts. He received a discount for the utilitarian value of that plea in the order of 10 percent. The applicant contends that the sentences imposed were attended by error and are liable to be set aside as manifestly excessive. He seeks leave to appeal and has raised three grounds of appeal as follows:

   1. (1)

      The learned sentencing judge erred in not assessing the objective seriousness of each offence separately.

   2. (2)

      The learned sentencing judge erred in accumulating the sentences.

   3. (3)

      The sentence on the second count is manifestly excessive.

Background

1. [5]

   The circumstances that give rise to the offences were described in detail by his Honour in his sentencing remarks. The applicant’s contentions necessarily draw heavily upon his Honour’s consideration and treatment of these facts and the relationship between the two offences. Some detail is therefore important. Those events included the following significant matters:

Subjective case

1. [6]

   The applicant was born in December 1976 in South Africa and came to Australia in 1991. He was 37 years of age when sentenced. He has what was conceded to be an unfortunate criminal record, including offences of violence, dishonesty, drugs, resisting police, offensive language, trespass, property damage, driving offences and deal with the proceeds of crime. He was previously imprisoned for violence offences.

2. [7]

   The applicant informed Joan Horsell, a senior community corrections officer, who prepared a pre-sentence report dated 13 February 2014, that he was under the influence of illicit drugs when the offences were committed. He agreed that his drug use was not an excuse for his actions and that he “knew what he was doing at the time.” He said that he became angry when the victim did not repay a loan and appeared to be mocking him. He was adamant that he did not plan to kidnap the victim and he was at a loss to explain his actions when he bit off his ear. However, the agreed facts include a statement by the applicant that he hurt people who “pissed him off.” Ms Horsell also observed that the applicant was recorded apparently gloating about having kidnapped the victim and to have emulated an infamous incident in professional boxing by biting off part of the victim’s ear. He told Ms Horsell that he was, however, ashamed of his behaviour and accepted that he needed to take full responsibility for his actions.

3. [8]

   Dr Scott Clark, a consultant psychiatrist, prepared a report for sentencing purposes. His opinion for presently relevant purposes was as follows:

Ground 1

1. [9]

   The applicant’s principal case is that his Honour’s assessment of the objective seriousness of the offences failed adequately or properly to distinguish between the two offences in that he regarded the facts globally without considering each offence separately or individually. This ground relied upon what was said in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45] as follows:

2. [10]

   The applicant contended that his Honour ought first to have assessed the objective seriousness of each offence in order to “fix an appropriate sentence”. In circumstances where separate sentences are imposed for discrete offences, the principle of totality is offended where the antecedent step of assessing objective seriousness is not separately undertaken or identified.

3. [11]

   The Crown contended that his Honour made no such error. He set out the agreed facts, dealt with objective seriousness and concluded that the facts could not support the suggestion that the applicant suddenly lost control when confronting the victim. He wanted the victim found and hurt. His Honour found that there was considerable planning involved including locating the victim and despatching co-offenders to capture him. His Honour found that the applicant was the ringleader. The attack upon the victim was described by his Honour as vicious. It involved more than one assailant and was sustained and brutal. The victim was repeatedly punched and kicked, was unable to defend himself and was hopelessly outnumbered. His Honour found that the attack involved gratuitous cruelty, including the continuation of the beating after the victim was obviously spent and biting off a portion of his ear. The applicant did this last act after jumping on the victim’s back which his Honour described as both sickening and an act of savagery. The applicant was callously boasting after the event of what he had done, reflecting his “sheer callousness”.

4. [12]

   His Honour referred to Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 47 and continued as follows:

5. [13]

   I am unable to agree that his Honour fell into error in the way for which the applicant contends. The kidnapping offence was a preliminary and essential step toward the commission of the infliction of grievous bodily harm. It is unambiguously clear from his Honour’s recitation of the facts and from his description of the seriousness of the offences that he is speaking about each separately and individually, even though naturally enough in sequence and as part of a continuous act of criminality. The applicant’s contentions are in my view to a great extent unrealistic when taken in the scheme of a consideration of his Honour’s sentencing remarks in particular or the way in which a sentencing judge ought to expose his or her reasoning about the seriousness of an offence or offences in general. There are cases in which sentencing tribunals fall foul of the requirements enunciated in Pearce. This is not one of them. Moreover, his Honour expressly contemplated the requirements of s 3A of the Crimes (Sentencing Procedure) Act 1999 and in my view gave practical effect to the purposes set out in that provision.

6. [14]

   This ground of appeal should be dismissed

Ground 2

1. [15]

   The sentences were accumulated by one year. His Honour specifically took account of what was said by Hoeben CJ at CL in Franklin v R [2013] NSWCCA 122 in these terms:

2. [16]

   The applicant submitted that his Honour should have commenced both sentences upon the same date. I disagree. Not only do I consider that his Honour was correct to accumulate the sentences in the way that he did, he would arguably have fallen into error to have done otherwise.

3. [17]

   The two offences were committed on the same day. The first was the practical and operational foundation for the second. Even though the two offences could be described as all part of the one course of criminal activity, in my opinion the discrete planning and execution of the kidnapping offence, effected with the assistance of others, whom the applicant recruited and instructed, in a scheme to track down the victim and take him to a secure location to be beaten out of sight of rescuers, is demonstration enough of the independent nature of this offence. It was deserving of punishment all by itself, which the applicant’s contention, if accepted, would have wholly avoided.

4. [18]

   The touchstone of the criminality in the kidnapping offence is the unlawful deprivation of liberty. It was specially aggravated by reason of the fact that it was committed in company. Bodily harm was also caused to the victim. In contrast, there is no independent element of detention in the second offence. It consisted of the vicious, intentional and prolonged infliction of grievous bodily harm. It was a serious and wholly separate offence.

5. [19]

   No aspect of the manner in which his Honour structured the sentences reveals error. This is not a case where the objective criminality of one offence comprises all those facts that go to make up the other offence. The sentence for neither offence in this case can be said to comprehend or reflect the criminality of the other: see, for example, R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52].

6. [20]

   This ground of appeal should be dismissed.

Ground 3

1. [21]

   The Crown acknowledged in this Court that his Honour’s sentences were capable of being described as harsh, stern or heavy. That concession is uncontroversial. Correspondingly, the applicant’s offences are capable of being described as vicious, sustained and brutal. His Honour so described them. The victim was punched and kicked during a beating that seemed to him to last “forever”. At one stage the applicant picked up the victim by the throat, thereby restricting his breathing, and held him in the air. When the victim thought that he was going to choke, he was dropped so that he fell to his hands and knees, and the kicking resumed. This continued even notwithstanding that the victim was apparently completely at the applicant’s mercy. In that condition his ear was bitten off.

2. [22]

   The burden of the applicant’s submissions with respect to this ground is that the sentences are in effect statistically anomalous having regard to figures published by the Judicial Commission of New South Wales. That submission was developed by emphasising that the grievous bodily harm, which is the subject of the second offence, was, or at least should be, limited to the loss of the victim’s ear and perhaps also the victim’s fractured nose. The other injuries sustained by the victim could not have been sufficient to qualify as grievous bodily harm. He contended in the circumstances that the ear and nose injuries were not at the most serious end of the spectrum, even taking into account the permanent disfigurement resulting from the ear injury. He contended that, after allowing for a discount of around 10 percent for the plea of guilty, a starting point of somewhere around 10 years must have been selected, and that such a sentence was disproportionate to the seriousness of the relevantly inflicted injuries.

3. [23]

   In order to succeed under this ground the applicant must demonstrate that the sentence of 9 years with a non-parole period of 6 years was “unreasonable or plainly unjust”: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. It is not enough to show that the sentencing judge could have taken a different course or that the appellate judges would have done so: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505.

4. [24]

   The relevant question on appeal is whether the sentence is within a proper range. It is not a question of whether other sentences can be said to be more or less lenient by undertaking a detailed analysis of other cases, as there is often a wide range of differences in objective and subjective circumstances to which a sentencing judge may have attached particular weight: R v Morgan (1993) 70 A Crim R 368.

5. [25]

   Appellate intervention on a ground that a sentence is “manifestly excessive” is not justified simply because the result arrived at is markedly different from other sentences that have been imposed in other cases. Intervention is warranted where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle even though it is not apparent from the sentencing judge’s statement of reasons, or where the sentence imposed is so far outside the range available that there must have been error: Hili v The Queen [2010] HCA 45 at [59] citing Dinsdale v the Queen (2000) 175 ALR 315. In Hili at 303, the High Court said:

6. [26]

   In this case it is not correct to isolate the physical injuries that constitute the grievous bodily harm as if to suggest that no other acts committed by the applicant have relevance if they were not shown to be directly causative of those injuries. The element of intent that is central to this offence can be seen to subsist in the sheer length and ferocity of the beating out of which the injuries have sprung. The evidence does not reveal that the victim’s nose was fractured because of a kick or a punch, or indeed some other aspect of the prolonged physical attack, but that does not mean that these actions are not central to a proper assessment of the seriousness of the offence.

7. [27]

   In my opinion, the sentence imposed was entirely warranted on the agreed facts. His Honour did not fail in some way to apply proper principle. The sentences are not to my mind unreasonable or plainly unjust.

8. [28]

   I would also dismiss this ground of appeal.

Conclusion and orders

1. [29]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [30]

   R A HULME J: I agree with Harrison J.