Regina v King

McCOLL JA: Mr King pleaded guilty before Delaney DCJ to one count of malicious wounding with intent to do grievous bodily harm on 20 August 2002, contrary to s 33 of the Crimes Act 1900 (NSW). The maximum penalty for a breach of s 33 is 25 years imprisonment.

On 16 June 2004 his Honour sentenced Mr King to a term of imprisonment of 10 years with a non-parole period of 6 ½ years, backdated to the date of his arrest on 21 August 2002.

There are two matters before the Court. Mr King seeks leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the basis that it was manifestly excessive and that the sentencing judge erred in wrongly considering the actual or threatened use of violence as an aggravating factor pursuant to s 21A(2)(b) of the Crimes (Sentencing Procedure) Ac t 1999 (NSW). The Director of Public Prosecutions appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) complaining that the sentence imposed was manifestly inadequate.

I shall, for convenience, refer to Mr King as the respondent throughout. Background

The respondent and Ms Flick engaged in a single act of consensual sexual intercourse after which Ms Flick became pregnant. The respondent sought to persuade Ms Flick to have an abortion, but she refused. It was not disputed before the sentencing judge that on 20 August 2002, when the pregnancy was between 23 and 24 weeks, the respondent attacked Ms Flick by punching her in the stomach. She was taken to Bankstown Hospital immediately, where an ultrasound was performed. No foetal heartbeat was detected. The foetus was delivered stillborn on 23 August 2002.

The respondent was first indicted in February 2003 on the charge of malicious wounding with intent to do grievous bodily harm on 20 August 2002 contrary to s 33 of the Crimes Act 1900 (NSW).

On 9 October 2003 Tupman DCJ granted a permanent stay in respect of the s 33 charge on the basis that there was no prospect of the Crown succeeding in obtaining a conviction, as the particulars of the charge could not amount to grievous bodily harm to the mother. The Crown appealed to the Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). The permanent stay of proceedings was lifted as a consequence of this Court’s decision in R v King [2003] NSWCCA 399; (2003) 59 NSWLR 472 (the “stay proceedings”) in which Spigelman CJ (with whose reasons Dunford and Adams JJ agreed) held that for the purposes of s 33 of the Crimes Act 1900 (NSW) the foetus should be regarded as part of the mother.

That judgment assists in understanding the nature of the offence to which the respondent pleaded guilty.

Although Ms Flick suffered bruising injuries as a result of the assault, the Crown did not suggest that those injuries could amount to grievous bodily harm. The Crown relied on, alternatively, the death of the foetus and the injury to the placenta as constituting the grievous bodily harm she had suffered: R v King at [8]. Accordingly, the stay proceedings raised the question “whether or not the death of a foetus is capable of constituting grievous bodily harm to a pregnant mother”: R v King at [4].

The hearing before the Court proceeded on the basis of Tupman DCJ’s findings ( R v King at [9]) that: “On the evidence there is no doubt that there was really serious bodily harm occasioned to the foetus as a result of the accused assaulting the complainant. In very simple terms, the foetus bled to death following the abruption of the placenta and, as I understand the medical evidence, this occurred at the site of the abruption. The foetus was stillborn however and did not take a breath outside the uterus. and The placenta too suffered some injury on the evidence before me. As I understand the medical evidence, that injury amounted to a portion of it detaching from the uterine wall, allowing the loss of foetal blood into the mother’s blood stream and ultimately causing the retro-placental clot noted on delivery.”

It also appears to have been assumed in the stay proceedings that “the assault on the mother did not inflict grievous bodily harm on her, unless the harm done to the foetus or the placenta is sufficient for that purpose”: R v King at [86].

Spigelman CJ accepted (at [87]) that there was “no clear rule, applicable in all situations, as to whether the mother and foetus must be considered as one or as separate [but that] the answer will turn on the incidents of the particular legal situation under consideration including, where relevant, the scope, purpose and object of a particular statutory scheme.”

His Honour referred (at [89] – [95]) to R v Sullivan & Lemay [1991] 1 SCR 489; (1991) 63 CCC (3d) 97 , Winnipeg Child & Family Services (Northwest Area) v G [1997] 3 SCR 925 and Harrild v Director of Proceedings [2003] 3 NZLR 289. In each of these cases, in different statutory contexts, it was held that while physically connected to the mother an unborn child or foetus was part of her.

Spigelman CJ referred (at [95]) to Harrild at [123] where McGrath J said “that because it is connected to human tissue inside her a foetus is part of the mother’s person” and that the foetus, even if a separate entity for some purposes, was “human tissue connected to and inside” the body of the mother ( Harrild at [126] and [133]) and said (at [96] – [97]): “96 I find this approach compelling for the law of assault and in particular for the forms of aggravated assault requiring as an element of the offence actual bodily harm, grievous bodily harm or wounding. The close physical bond between the mother and the foetus is of such a character that, for purposes of offences such as this, the foetus should be regarded as part of the mother. 97 The aggravated forms of assault reflect the community’s legitimate concern to control violence between persons. The greater the degree of injury, as compared with the result of common assault, the greater the community’s concern. Where such enhanced injury is inflicted on a foetus only, I can see no reason why the aggravated form of offence should depend on whether the foetus is born alive. The purpose of the law is best served by acknowledging that, relevantly, the foetus is part of the mother.”

The Court of Criminal Appeal set aside Tupman DCJ’s order staying the proceedings. The sentencing proceedings

The sentencing proceedings followed the lifting of the permanent stay.

There were two stages to the sentencing proceedings. The sentencing judge first heard evidence concerning the circumstances of the assault in order to make the findings of fact to be taken into account on sentence. He delivered his findings of fact based on that evidence on 3 June 2004. He then adjourned the matter to 9 June 2004 when he heard further evidence and submissions on the appropriate sentence in the light of those facts. The sentence was imposed on 16 June 2004, on which date his Honour also enunciated his remarks on sentence. Determining the facts

Before the sentencing judge, the Crown alleged that the respondent’s attack upon Ms Flick involved him kicking her in the stomach and stomping on her stomach about half a dozen times. The Crown also alleged that prior to his assault, the respondent had offered others money to assault the complainant, including hitting her in the stomach, but they had refused.

Although the respondent pleaded guilty, he did not accept the facts were as alleged by the Crown. His case was that he had punched Ms Flick in the stomach then stepped on her right arm. He also denied offering others money to assault her.

Accordingly the Crown was required to call evidence of the background to the event on 20 August 2002 to allow the sentencing judge to determine the facts upon which he should proceed to sentence the respondent.

The Crown tendered a number of documents which included statements taken from medical staff who attended Ms Flick after her admission to Bankstown Hospital and autopsy reports prepared by Dr Duflou, a specialist forensic pathologist at the Department of Forensic Medicine at Glebe.

Dr Duflou determined on his autopsy, which was conducted on 26 August 2002, that: “The foetus was macerated, consistent with demise on or about 20 August 2002….Microscopic examination of tissues identified areas of bleeding in the placenta consistent with having been present for a number of days. Given the history, it appears likely this bleeding occurred at the time of the alleged blunt force assault to the abdomen. … Examination of the placenta … An 80 x 20 x 20 mm crescentic area of haemorrhage was noted at the placental border. … Placenta: Shows normal development without evidence of placental infection. There is recent haemorrhage in areas, with an acute inflammatory cell reaction and early organisation along the edges of the haemorrhage and in the adjacent placental tissue. There is a minor degree of inflammation of the membranes … The features are consistent with bleeding a number of days prior to delivery.”

He concluded that the stillbirth of the foetus on 23 August 2002 was “consistent with blunt force abdominal trauma to mother”.

He prepared a second report based on the assumptions that the last time prior to the assault Ms Flick felt foetal movement was at 18.00 hours on 20 August 2002, that the assault took place shortly before 20.21 hours on 20 August 2002 and that no foetal heartbeat was detected by a midwife at about 21.30 hours on 20 August 2002. On those assumptions Dr Duflou opined: “Abruptio placentae is relatively uncommon during the second trimester of a previously normal pregnancy. Causes of abruptio placentae include trauma …Given the circumstances described and the very short time interval between when movement was last felt and the death of the foetus (about 3 ½ hours), I am of the opinion that it is highly likely that the foetus died as a result of blows to the abdomen (i.e. trauma). On the material made available to me I am of the opinion that other causes of abruption of the placenta causing the stillbirth in this case are not reasonable possibilities.”

The Crown also tendered a report from Dr Simon McCaffrey, a gynaecologist. He reviewed the history and expressed the following opinions: “… Kylie’s Kleihauer count of 5% suggested a foetomaternal haemorrhage of approximately 250mls. In other words virtually the entire blood circulation of the infant had undergone transplacental transfusion into Kylie’s circulation … The clinical setting and perinatal pathology suggested traumatic placental abruption as a result of the alleged assault with foetal demise due to placental haemorrhage and foetomaternal haemorrhage. Pelvic ultrasound performed on 21/8/2002 (the day after the alleged assault) confirmed a foetal death in utero whose demise had been recent … Traumatic placental abruption resulting in foetal death in utero and foetomaternal transfusion of the entire foetal circulation is indicative of significant trauma. Admittedly the extent of the trauma may not have been visible but the uterus underwent significant trauma to produce this result …”

The Crown called a number of witnesses including Ms Flick, Brianne McCarthy and Jessica Williams. Doctor Duflou was also called by the Crown at the request of the respondent as a qualified forensic pathologist. The respondent gave evidence, as did his mother and a Mr Brannigan.

Ms Flick gave evidence she became pregnant following one incident of consensual sexual intercourse with the respondent. Some weeks later she told the respondent that she was pregnant. She said that it appeared that he did not believe her at first. She gave evidence of conversations with the respondent both one to one and with other persons present between the time she first told him of her pregnancy and 20 August 2002. She said that she told the respondent that the pregnancy was going well and that she was going to have a boy. She was asked: “Q. What did you tell him in the conversation? A. I told him that I was having a boy and I asked if he was happy about it and he said ‘Yes’ that he always wanted a boy. Q. How was the tone of that conversation? A. He actually seemed happy about it.”

Ms Flick said that she was in contact with the respondent by mobile phone and by SMS text messages frequently. The sentencing judge found that the material annexed to the statement of a Sergeant Adney (Ex C) confirmed that statement.

During the course of the pregnancy Ms Flick underwent an ultrasound examination. An examination which took place on 31 July 2002 confirmed that the baby was healthy, the pregnancy was proceeding appropriately and that the baby was a boy.

Ms Flick said that as 20 August approached she was leaving the Yagoona area and moving to live at Minto. She said that there was a telephone conversation with the respondent who said he wished to say goodbye to her before she moved. Ms Flick said that arrangements were made for a meeting to be held on 20 August. On that day she had friends helping her with the heavy things when she received a call from the respondent to meet her down the side of the house. This she did. She was asked: “Q. Can you say what you talked about? A. Moving away, getting away and getting out of the area, how bad the area had gotten. He was looking over my fence and I told him to watch out for the dogs because they might bite.”

Ms Flick’s evidence was that the conversation lasted about an hour and was civil and peaceful. There was some discussion about her future. She said that it was always her intention to support the child with the help of her mother and eventually work. She said that at a stage when it is apparent she had her back to the respondent, everything went silent, she heard a rushing noise and as she turned she felt pressure hit her stomach. She said: “A … I fell backwards and hit the ground and then Phil just kept stepping on my stomach with his leg. Q. What part of his leg was coming into contact with you? A. The sole of his foot.”

Ms Flick said that the sole of the respondent’s foot came into contact with her about six or seven times. She said that at that stage she was positioned on her back and he was over the top of her holding her down with his hand. She was asked: “Q. Holding you down with his hand and what part of you was his hand in contact with? A. My shoulder. Q. What were you doing? A. I was screaming, trying to cover my stomach with my arms and legs. Q. After he did this six or seven times that you’ve mentioned what did he do next? A. He ran. Q. Did he say anything while he was doing this to you? A. No.”

One of the aspects of the early part of the history of the event after Ms Flick became pregnant was a visit by her to the home of the respondent with her sister. There was a discussion then about the future of the child. The question that was then asked by senior counsel was: “Q. So if he’s asking you to get an abortion that really doesn’t sound like he’s very happy about being a father does it not? A. Not at that point. Q. Is that right? A. Yes. Q. But are you telling the Court that he came around from that position from hanging up on you, wanting you to have an abortion and then being happy about being a father, is that right? A. That’s how he made it sound.”

Ms Flick said in cross-examination that she did not agree that the respondent was making her feel unwanted. She agreed, however, that the respondent wished her to have an abortion, that he told her that she was too young to have a child and he was too young to be a father and to look after and support a child. Ms Flick said that she knew that the respondent did not have a job and that he could not support her and had told her that they were both too young to be married.

Counsel for the respondent cross-examined Ms Flick in the following way: “Q. You were smoking on that night weren’t you? A. Yes. Q. And it was after you lit up the smoke that the assault occurred did it not? A. I’m not sure. Q. He said words to the effect “Look at you, you’re still smoking” didn’t he? A. I don’t remember. … Q. And this assault that you tell us about, you say he stomped on you six or seven times. You certainly remember that don’t you? A. I can still feel it of a night. Q. Pardon? A. I can still feel it of a night. Q. In stomping - you said he also held you down with one hand when that occurred? A. Yes. Q. You said that you were on your back? A. Yes. Q. Do I take it from that answer that he was stomping on your stomach? A. Yes. Q. And he was wearing shoes at the time? A. Yes. I think they were boots. Q. He is not exactly a slightly built man is he? A. He was a lot bigger than that. Q. He was a lot bigger then wasn’t he, in fact he’s lost weight since the assault hasn’t he? A. Yes. Q. So he was a big man? A. Yes. Q. So therefore it was a big man stomping on you six or seven times? A. Yes. Q. Was he bringing his boot - was he using both feet? A. Just one. Q. Just one foot, and was he bringing that down on the stomach area repeatedly? A. Yes. Q. The amount of times you said so? A. I think so yes. Q. You think so. And at the same time holding you on the ground, so he was in a sense leaning over you is that right? A. I think he more kept pushing me with his hand. Q. He pushed you down, would stomp and then if you tried to get up he’d -- A. Yes. Q. -- push you down again, is that right? A. I think so. … Q. Can I suggest to you that the true position was that he at no stage stomped on you at all did he? A. Yes he did. Q. I mean by that, I’ll be very clear, any stomping was in fact the treading of his foot on your arm or wrist at the time when you fell to the ground? A. I don’t understand. Q. I’m suggesting to you the only time he trod on you or even to use your word “stomped” was when you fell to the ground and he trod on your arm? A. No. Q. The arm - did he ever tread on your arm? A. When I covered my stomach with them. … Q. And that arm was not covering your stomach at the time was it? A. Yes it was. Q. It was in effect beside you on the ground? A. No. Q. And he trod on you really only the once didn’t he? A. No.”

The respondent said that before 20 August he found out that Ms Flick and family were going to move from Yagoona to Minto. He said that she had contacted him by using mobile phone text messages and they eventually agreed to meet. He was then asked: “Q. All right, could you tell the Court in your own words what happened during the course of the conversation which led to the assault of Kylie and the loss of her unborn child? A. We were talking for about 30 minutes and we were just talking about things. She told me I was going to pay for the baby for the rest of my life, that I’d better start working to get money and she threatened to tell my girlfriend Melanie that Kylie was pregnant to me and just then later on I seen her smoking and -- Q. When you say later on she was smoking, did she light up a smoke or something? A. Yeah. Q. In front of you? A. Yes. … Q. When she lit up the smoke in front of you, what reaction did that have on you, given everything that had transpired up until that night? A. I just asked her why she was still smoking and she said – she said “Oh not you too”, she said everyone else has told her to quit but she can’t, she said she couldn’t quit and she was still smoking. Q. Did you get angry at that stage? A. Yes. Q. What did you do? A. After we talked about her smoking and that? Q. Yeah, what did you do then? A. I was standing there and - or about a few seconds, then I just punched her, I got really - I just clicked and punched her in the stomach. Q. What happened to her? A. She fell to the ground. Q. The punch to the stomach, that was a hard punch? A. Yeah. Q. She fell to the ground and what happened next? A. When she fell back on the ground I stepped on her right arm. Q. Why did you do that? A. I’m not quite sure.”

He denied during the course of questioning that he had ever stomped on the victim six or seven times. He was asked. “Q. Did you ever stomp on her stomach at all after she was on the ground? A. No, I stomped on her right arm. … Q. What did you do after you stomped on her right arm, did you go somewhere? A. Yes I ran off in the opposite direction of my house.”

The respondent was cross-examined by the Crown Prosecutor about this evidence. He confirmed in cross-examination that he had punched Ms Flick once and did not stomp on her stomach as alleged. He was then asked about stomping on her arm. He said: “A. I’m not sure. Stomped on - it wasn’t a stomp. Q. What did you do to her arm? A. Yeah I stomped on her arm. Q. Where was her arm? A. Right next to the - like on the side of her. Q. Which arm was it? A. Her right arm. Q. Why did you do it? A. I’m not sure. Q. Why her arm as opposed to any other part of her body? A. It’s just there, it’s just what I done at the time, I wasn’t thinking, it’s just what I done at the time.”

Further on: “Q. So you punched her once in the stomach. Did you know she had a baby there? A. Yes. Q. Did you intentionally aim for her belly? A. I wasn’t - at the time I wasn’t thinking, I just - everything, we were talking - everything was fine, then after -- Q. Everything was fine was it? A. We were talking - we were talking about things and then - then things got brought up about she was going to tell my girlfriend and then I seen her light up a smoke and … then I just lost it and punched her in the stomach, she fell over and then I stomped on her right arm. Q. But why her stomach? A. It was her right arm. Q. Any why punch her in the stomach? … A. I’m not sure but if I was … 112 kilos and in her statement she says I held her down and stomped on her stomach, at 112 kilos jumping on her stomach six or seven times and she says I also kicked her in the shin, if I’m holding her down how could I stomp on her stomach six or seven times and stomp her in the shin as well when the shin’s further down, it’s -- … Q. So you cannot be any clearer about why it was that you punched her in the stomach? A. After that she lit up a smoke, I just -- Q. And did the cigarette smoking enrage you did it? A. That and other things she was saying to me. Q. Because you were concerned that it was going to damage her baby? A. Yes. Q. And you went along and damaged her baby instead? A. Yes but I just - it just happened, it’s not like I - I just clicked and done it, I didn’t have any - yes that is.”

The Crown cross-examined the respondent further on this issue: “Q. You intended the foetus harm or did you want to kill it? A. I did want to kill it at the time yes. Q. You wanted to kill it? A. Yes. Q. And you’d wanted it aborted right from the time you heard Kylie was pregnant didn’t you? A. Yes I did. Q. And when you understood that she was not going to have an abortion you sought out two others to cause her to have a miscarriage didn’t you? A. No I didn’t.” (emphasis supplied)

The Crown called Brianne McCarthy and Jessica Williams. The sentencing judge found that their recollections fluctuated. Jessica Williams said that she knew Ms Flick and that she became aware that Ms Flick was pregnant. She said that she recalled a conversation in which the respondent had offered her five hundred dollars to hit Ms Flick in the stomach. She said that in relation to this conversation, although it was suggested to have been in a jocular manner, that is not the way in which she interpreted it. Brianne McCarthy gave evidence that the respondent had offered Ms Williams and her “$500 to get rid of the baby for him”. She said she “didn’t think he was serious” … (because she) “didn’t think he was that type of person”. The sentencing judge found that the respondent said to Ms Williams words to the effect, “I’ll give you five hundred dollars if you bash Kylie but you’ve got to get her in the stomach”.

The Crown tendered a statement from Megan Halliday, a Registrar in Obstetrics and Gynaecology at Bankstown Hospital. She stated that at 9.30 pm on Tuesday 20 August 2002 she attended the birthing unit at Bankstown Hospital because Ms Flick had presented following an assault. On examination no foetal heartbeat was detected with a hand-held Doppler Ultrasound instrument. Doctor Halliday also performed a real-time ultrasound examination of the foetus and it did not show any foetal heart motion. Doctor Halliday noted that the patient had been to Bankstown Hospital previously on 31 July 2002 for an ultrasound which showed that the foetus was apparently grown and alive.

Before the sentencing judge Mr Steirn SC submitted that the Court should not accept Ms Flick as a witness of truth.

He also submitted that there was no objective evidence of injury, that the obstetrician who was the Registrar at the Bankstown Hospital could not discern any injury although there was pain in the wrist, and therefore the Court should find that the Crown had not proved beyond reasonable doubt that the event had occurred in the manner deposed to by Ms Flick and that more likely than not the event occurred in the manner to which the respondent deposed. He referred the Court to the medical evidence to suggest that the Court should find that it was improbable that the evidence of Ms Flick about how the incident occurred could be correct.

The sentencing judge concluded that the respondent was “a most unconvincing witness”.

He accepted Ms Flick’s evidence of the events of the evening “in a general way” where it conflicted with the evidence of the respondent. He found beyond reasonable doubt, accepting Ms Flick’s evidence, that she was struck probably with a punch, as the respondent admitted, causing her to fall to the ground. He was satisfied that the respondent did not just stomp as he put it on Ms Flick’s arm but that he stomped or stepped on her stomach. He accepted Ms Flick as to the number of times she felt that occurred. He found the respondent’s actions caused the injury to Ms Flick’s abdomen leading to the death of the foetus.

The Crown submitted before the sentencing judge that the position was that the respondent had from the time that he became aware that Ms Flick was pregnant been intent on securing either by consensual or non-consensual means the termination of the pregnancy.

The sentencing judge accepted the Crown’s submission. He found it established beyond reasonable doubt that the respondent, after ascertaining that Ms Flick was pregnant, had in mind up to and including 20 August 2002 the course upon which he embarked to achieve the termination of the pregnancy either by consent or otherwise. First, he sought that Ms Flick have an abortion. Secondly, the sentencing judge found the respondent’s thought processes were displayed by the conversations he had with Jessica Williams and Brianne McCarthy about offering them five hundred dollars if they would strike or hit Ms Flick in the stomach. His Honour concluded that whether his request to the two girls was jocular or otherwise, it was evidence that he intended to take this course. He noted that Jessica Williams said “the approach which he took to the matter had in the end a harder edge than being merely jocular”.

The sentencing judge concluded that, having contacted her on a number of occasions, the respondent led Ms Flick to the view that as the 20 August approached he was responding to her in a caring way. However, the impression the respondent conveyed to Ms Flick was not genuine. Rather, as the sentencing judge found: “Although the evidence of Kylie Flick is the [the respondent] made comments to her which convinced her that he was caring and induced her to the view that he was supportive, I am satisfied beyond reasonable doubt that it was always his intention to achieve either by agreement or otherwise the termination of the pregnancy .” (emphasis supplied)

The sentencing judge found the following facts in summary had been established beyond reasonable doubt: 1. the respondent was born on 19 April 1983; 2. he had known Ms Flick for about three years before March 2002 living in the Yagoona area; 3. he and Ms Flick had consensual sexual intercourse on 24 March 2002 at his house; 4. as a consequence of this event Ms Flick became pregnant; 5. in April 2002 Ms Flick told the offender that she was pregnant having obtained confirmation by a test; 6. initially the offender did not believe that this was so. He did not at that stage or indeed at any stage have or consider having a continuing relationship with Ms Flick and had an existing relationship with a girl, Melanie; 7. Ms Flick had a not dissimilar view. She intended that if the child was born he would be brought up as part of the family with the assistance of her mother; 8. there were discussions between the offender and Ms Flick about the future of the child between April 2002 and August 2002; 9. the offender did have a discussion with both Brianne McCarthy and Ms Williams about receiving five hundred dollars for taking steps to strike Ms Flick in the stomach. This was an indication of his intention in respect of the future of the pregnancy; 10. the pregnancy was viable and had reached between twenty three and twenty five weeks with a developed male foetus as at 20 August 2002; 11. the offender and Ms Flick met after arrangements were made between them by mobile phone and SMS messaging; 12. the meeting occurred late on 20 August 2002; 13. they discussed various aspects of the future of Ms Flick as she was moving to Minto. Ms Flick did not state to the offender that he would have to look after the child for the rest of his life in the form he deposed nor did she say that she would in a positive form as alleged by the offender, tell Melanie of the pregnancy; 14. the offender more likely than not punched Ms Flick in the stomach causing her to fall to the ground; 15. when she was on the ground the respondent stomped on her stomach five or six times and also struck her shin and also her wrist; 16. the assault caused the injuries to Ms Flick causing the death of the foetus. Remarks on sentence

The sentencing judge incorporated the findings of fact made in his judgment of 3 June 2004 into his sentencing remarks.

There was no issue before the sentencing judge that, having regard to the nature of the offence, no penalty other than imprisonment was appropriate: s 5(1) Crimes (Sentencing Procedure) Act 1999 (NSW).

The sentencing judge noted that in determining an appropriate sentence there were competing considerations to take into account. He said: “On the one hand there is the seriousness of the offence itself. In this case, the injury to the mother and the death of the foetus. These matters are recognised both by the legislature and the community as serious crimes. That recognition must be addressed in the sentence imposed. In that context, it must be remembered that it is an important role of the law to act so as to so far as possible, protect citizens in our state and punish those who cause injury to them.”

His Honour then referred also to the necessity for the Court to consider the factual content and circumstances of the offence, the blameworthiness of the perpetrator and that care must be taken not to concentrate mainly on the subjective considerations of the perpetrator but that regard should also be had to the effect of the offence on Ms Flick’s family.

In this respect he said that: “It is necessary for the Court to give consideration to the factual content and circumstances of the offence. Dealing with the blameworthiness of the perpetrator and taking into account all of the other factors that the law requires [c]are must be taken not to concentrate solely or mainly on the subjective considerations of the perpetrator. There is great sadness in the family of the victim, Kylie Flick, which has been expressed. It would be understandable in the circumstances that there is a sense of grievance against the [respondent] as their lives have been diminished by the events that have occurred and this is a relevant issue to note. The events that have occurred and the result of what happened can never be compensated by any sentence that the Court may impose and it is for that reason that the Court takes into account in the way in which the law says it can, the victim impact statement which was tendered by the Crown in this case . I do not propose to refer to all of the matters that appear in that victim impact statement but I have taken into account everything that appeared in it and noted what was said and the reaction and distress it conveyed.” (emphasis supplied)

In reminding himself of the nature of the charge to which the respondent had pleaded guilty, the sentencing judge extracted passages from the Chief Justice’s judgment in the stay proceedings, including paragraphs [95], [96] and [97] to which I have referred.

Following his reference to those passages the sentencing judge directed himself that he was required to sentence the respondent “upon the basis of the determination of the Court of Criminal Appeal”. He also reminded himself that it was necessary to bear in mind that the Court was sentencing in respect of an offence under s 33 of the Crimes Act 1900 (NSW) and not some other offence. He referred to Gibbs CJ’s statement in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389 to the effect that a sentence should take account of the circumstances of the offence but not punish the perpetrator for an offence for which he had not been convicted.

His Honour then dealt with subjective and objective factors in the following manner. Effect of the plea of guilty

The sentencing judge found that the respondent’s plea was entered at the earliest opportunity after the Court of Criminal Appeal had determined the permanent stay proceedings.

However, he concluded that the respondent was only entitled to a discount at the lower level of the range referred to in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 for the utilitarian value of his plea of guilty having regard to the manner in which the sentencing proceeded. This was because, despite the plea of guilty, most of the facts of the matter were disputed which led to Ms Flick, Ms McCarthy and Ms Williams having to give evidence and be cross-examined. His Honour appears to have acceded to Mr Steirn SC’s submission that the plea had some utilitarian value because it avoided the necessity of calling a jury and conducting a fully adversarial trial.

He concluded that “something around” 15% was the maximum the Court could allow for the plea of guilty. Remorse and contrition

During the sentencing hearing the respondent was asked about his reaction to hearing the child had been lost. He gave the following evidence: “Q. When you found out that [Ms] Flick had lost her baby, what reaction did that have on you? A. At first I - it was - not, like I was a bit upset because - well I was upset because it’s not something I intended to do and I wasn’t - I don’t know what I was thinking, I was in the police cells and I was -- Q. Since that time you’ve had plenty of time to think being in gaol for that length of time. Are you sorry for what occurred to [Ms Flick]? A. Yes I’m very sorry for what happened to [Ms Flick] …”

Mrs King gave the following evidence: “Q. Had you spoken to him about how sorry he is as to what happed to [Ms Flick] and the foetus being aborted? A. Yes, he’s very sorry that it happened.”

The sentencing judge referred to a report of a Mr Taylor, a clinical forensic psychologist, which was tendered on the respondent’s behalf, in which the following appeared: “He believes he felt very threatened when the alleged victim said that she would ruin his life. He said that after attacking the victim, “I just ran off, I wasn’t thinking anything”. He said he was not trying to avoid the police by running off because he knew that his mother would tell the police that he was at his girlfriend’s house. He said he went to his girlfriend’s house and went to bed.”

On the question of remorse Mr Taylor noted: “He said he now feels ‘it wasn’t the right thing to do - it wasn’t planned to happen - it just happened at the time. It wasn’t planned on - it was just a bad thing that happened’.”

The sentencing judge accepted that, having regard to the facts and circumstances outlined in his judgment of 3 June, the respondent’s submission that there were “real indications of remorse and contrition… must be approached with some reserve”.

He concluded that the expressions of contrition and remorse which could be gleaned from the plea of guilty, the statements made by the respondent during the course of his evidence, the evidence of his mother and his statements to the psychologist in 2003 should receive generally little weight having regard to the manner in which they were expressed and the circumstances in which they were expressed.

I interpolate to note that in the light of the sentencing judge’s findings that Ms Flick had not threatened to ruin the respondent’s life and that the respondent had planned the termination of the pregnancy from April 2002, his Honour’s rejection of the respondent’s expressions of remorse was clearly correct. The respondent’s health and mental issues

The respondent sought to establish that the offence was committed in circumstances which were affected by a head injury he had suffered when he fell off his bicycle when he was 10 or 11 years of age. Mr Taylor, the psychologist, concluded on the basis of the history he received of the accident and from his review of the hospital records, that the respondent had a “significant head injury” and this was consistent with the history his mother gave that “he was easily frustrated and irritable”. However, Mr Taylor also qualified his opinion by saying that it would be important to obtain the opinion of a neurologist concerning the consequences of traumatic brain injury. No neurologist’s report was tendered.

The sentencing judge concluded that the respondent had not established that he had sustained, or continued to have, or did have at the time of the offence, any brain injury. However, he said he would take into account the behavioural changes his mother had observed and related to the psychologist.

The sentencing judge noted that it had never been suggested during the respondent’s evidence that he suffered from any defect in understanding rendering him unable to know what to do, or what he should do, in relation to the events between March 2002 and August 2002. Nor, he observed, had it been put to any of the witnesses that they had observed any defect in the respondent’s ability to concentrate or appropriately interact with any person in terms of his daily social activities.

Accordingly, he concluded that the submission that sequelae of the head injury were causally relevant to the commission of the offence should receive little weight. The manner in which the sentence was likely to be served

The sentencing judge noted that the respondent said that he had been bashed by a number of prisoners when he entered the prison system and had been in protective custody for the majority of the time since his incarceration.

Mindful of this Court’s statements that it could not always be assumed that protective custody was more onerous than custody in the general prison population (see R v Mostyn [2004] NSWCCA 97), his Honour had called for additional evidence to be tendered in relation to this issue. That evidence demonstrated to his satisfaction that there were a number of options available to those who are kept in protective custody. In particular, his Honour noted the passage in R v Mostyn , above, at [179] – [180] where Howie J (with whom Studdert J and I agreed on this point) to the effect that special arrangements existed for those in protective custody which do not reflect the harsh conditions or degree of isolation and lack of access to programmes which prisoners had to endure in the past. Accordingly, while his Honour concluded that he was satisfied that the respondent would from time to time spend time in restricted custody, the weight which should be given to that had to be balanced by reference to such special arrangements. Rehabilitation

The sentencing judge accepted that the respondent had attempted to rehabilitate himself. Age of the respondent

The respondent was 19 at the time he committed the offence, having been born on 19 April 1983. The sentencing judge took into account the respondent’s youth but also the remarks of this Court in R v Pham (1991) 55 A Crim R 128 at 135 where Lee CJ at CL (with whom Gleeson CJ and Hunt J agreed) observed that: “The gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens, must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution will not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes.”

He acknowledged, in this respect, the “serious nature of the offence” and “the need for appropriate punishment to reflect the attitude of the community to that issue”. Section 21A Crimes (Sentencing Procedure) Act

The sentencing judge concluded that in determining the appropriate sentence he should take into account the aggravating factors referred to in s 21A(2)(b) (actual or threatened violence), (f) (offence involving gratuitous cruelty), (g) (offence caused substantial injury, emotional harm, loss or damage) and (l) (vulnerability of the victim).

He also took into account the mitigating factors referred to in s 21A(3)(e) (no prior record), (f) (offender a person of good character), (g) (offender unlikely to re-offend), (h) (good prospects of rehabilitation), (i) (offender has shown remorse) and (k) (plea of guilty). Non-parole period

Having regard to the respondent’s prospect of rehabilitation, his youth, the fact that this would be the first time he would be in prison and that he would need a longer period than usual after his release to assist him in his rehabilitation, the sentencing judge found special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999. Criminality of the offence

The sentencing judge dealt with the degree of criminality of the offence last in his sentencing remarks. He said this involved a “vexed question”, “not because … there was not serious injury caused, but because the nature of this case was certainly unusual, if not unique”.

He noted that the maximum penalty was twenty-five years imprisonment. He referred to R v Way [2004] NSWCCA 131 in which the Court of Criminal Appeal (Spigelman CJ, Wood CJ at CL and Simpson J) in its joint judgment said, in referring to s 54A of the Crimes (Sentencing Procedure) Act , that in order to determine what was “an offence in the middle of the range of objective seriousness”, that it was necessary for the judge to determine what was “an abstract offence in the middle of the range of objective seriousness” (at [74]).

He noted the Crown’s submissions that the offence was “very serious”, “above mid range” although not in “the worst category”. The Crown argued that the offence was “a serious example of maliciously inflicting grievous bodily harm” and that while the victim had not suffered a permanent injury such as paraplegia or brain injury, “she nevertheless suffered a permanent loss”. The Crown contended that the case was serious and pointed to the fact that the respondent had planned the offence and that the assault was sustained.

The Crown referred the judge to authorities in which significant penalties had been imposed upon persons who had been involved in very violent assaults as well as to two Queensland decisions each of which involved an assault upon a pregnant woman which had caused the demise of the foetus.

While the sentencing judge regarded the Queensland cases as providing some point of reference for the Court in considering the approach to what he described as “a very unusual form of injury committed in the form in which I found it”, he regarded those other cases as being distinguishable. (Although he did not articulate the distinctions, I understand them to be that in both Queensland cases the assault was not premeditated and in one, R v Huston , Queensland Supreme Court, unreported, 19 March 2003, the offence was committed while the offender was in a cannabis induced psychosis). He concluded that the starting point for the focus of the sentence should be at the upper limit of the mid range.

He said he had reached that conclusion having regard to the purposes for which the Court is to impose a sentence on an offender referred to in s 3A of the Crimes (Sentencing Procedure) Act .

His Honour then referred again to the victim impact statement and said he had taken it into account when determining the sentence but “conformably with authority, see R v Previtera (1997) 94 A Crim R 76 and Bollen v R (1998) 99 A Crim R 510 [have] not made use of it so as to increase the penalty that would otherwise be imposed”.

Finally he said: “It is … a difficult matter to determine the appropriate sentence to be imposed in the circumstances of this case. It was submitted by Mr Steirn of senior counsel that there were a number of victims in this case and that the offender was one of them . Whilst he made that submission, this, in my opinion, significantly overstates the way in which this sentencing process is to be considered. I have already indicated previously that it is necessary not to just focus on the offender, but to focus on the established facts of the offence to determine, notwithstanding the age of the offender and the plea of guilty and the way in which he will spend his time in prison, an appropriate sentence to reflect these matters.” (emphasis supplied)

As I have earlier indicated, the sentencing judge found special circumstances pursuant to which he varied the statutory ratio between the respondent’s head sentence and the non-parole period. Accordingly, he sentenced the respondent to imprisonment for 10 years to commence on 21 August 2002 and expire on 20 August 2012. In accordance with the amended Schedule under s 44 of the Crimes (Sentencing Procedure) Act he specified a non-parole period to expire on 20 February 2009 which was the first date upon which the respondent would be eligible for consideration for release on parole. The severity appeal: the respondent’s submissions

Mr Steirn SC submitted the sentencing judge had imposed an excessive sentence because, by taking s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) into account in his remarks on sentence, he had treated as an aggravating factor a matter which was an element of the offence contrary to the concluding phrase of s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. That provides that the “court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”

Mr Steirn SC referred to R v Wickham [2004] NSWCCA 193 at [22] where Howie J (with whom Bell and Hislop JJ agreed), after referring to the concluding phrase of s 21A(2), said: “The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence.”

Mr Steirn SC also submitted that the sentence ultimately imposed did not reflect the sentencing judge’s finding that the starting point for the focus of the sentence should be at the upper limit of the mid range. In support of this submission he relied upon the following: (a) Judicial Commission sentencing statistics tendered at the sentence proceedings relating to all offenders convicted of an offence contrary to s 33 Crimes Act showed 196 offenders, of whom 161 received non-consecutive full-time custodial sentences. Of those 161 offenders, on the full term only 6% received a greater sentence and 5% a similar sentence to the respondent. In relation to non-parole periods, only 4% received a greater sentence and 1% a similar sentence. (b) At the sentence proceedings his Honour was referred to R v Huston (Queensland Supreme Court, unreported, 19 March 2003) and R v Lippiat (Queensland District Court, unreported, 24 May 1996) in each of which lesser sentences were imposed upon offenders who assaulted pregnant women, in both cases leading to the death of the unborn child. The respondent conceded that the Queensland decisions were made in relation to an offence carrying a lesser maximum sentence however contended that the sentences imposed provide some guidance.

Mr Steirn SC also submitted that having regard to the many mitigating factors the sentencing judge said he took into account the sentence imposed indicated that he started the focus of the sentence well above the “upper limit of the mid range”. The severity appeal: the Crown’s submissions

The Crown conceded that the sentencing judge’s reference to s 21A(2)(b) indicated that his Honour appeared not to have taken the concluding words of s 21A(2) into account. It properly drew the Court’s attention to R v Cramp [2004] NSWCCA 264 (at [58] and [64]) where Spigelman CJ (with whom Hidden and Buddin JJ agreed) held that where a sentencing judge failed to take into account the concluding words of s 21A(2) and had additional regard to subs (2)(b) in sentencing an applicant for an offence under s 33 of the Crimes Act 1900 (NSW), the Court was entitled to intervene and re-exercise the sentencing discretion.

The Crown also conceded it was possible the sentencing judge made a similar error in taking into account s 21A(2)(g) (aggravating factor where the injury caused by the offence was substantial). It noted that in re-exercising the sentencing discretion in Cramp , Spigelman CJ (at [65]) was also critical of the sentencing judge’s consideration of that factor because the offence under s 33 requires the infliction of grievous bodily harm so that the injury is necessarily “substantial”.

The Crown contended that if, in citing s 21A(2)(g), Delaney DCJ intended to refer only to the physical injury inflicted on Ms Flick, his Honour arguably erred in the same manner as the sentencing judge in Cramp . However, it contended that Delaney DCJ might also have had in mind the substantial “emotional harm, loss or damage” which the victim and her family suffered as a result of the offence factors which are also referred to in s 21A(2)(b).

The Crown accepted that in R v Wickham , above, at [32], Howie J acknowledged that taking an aggravating factor into account when it is also an element of the offence in question “would normally indicate that the sentencing exercise has miscarried”. However, it submitted that in accordance with s 6(3) of the Criminal Appeal Act 1912 it did not automatically follow that a lesser sentence was “warranted in law”. It drew attention to R v Astill (No 2) (1992) 64 A Crim R 289 at 304 where Lee AJ said: “When an appeal is brought under s 5(1) [of the Criminal Appeal Act ] it may well be that the court will consider the sentence passed to be ‘warranted in law’ even though the court may not be in agreement with the weight assigned by the sentencing judge to particular features, or his selection of the substantial matters which guide him to his conclusion. In such a case the appeal fails. Even where the court concludes that the judge has made a mistake of law, the court may still hold that the sentence is not excessive and should stand.”

The Crown noted that R v Wickham was an example of a case where, despite a double counting error, the Court did not impose a lesser sentence. Howie J considered the sentence in that case to be bordering on inadequate, and concluded (at [32]) that “there was in fact no miscarriage in that case as no lesser sentence was warranted”.

The Crown also referred to R v Cocking [1999] NSWCCA 311 at [22] – [24] where Sully J (with whom Spigelman CJ and Grove J agreed), after referring with approval to Lee J’s statement in R v Astill (No 2) , also referred to R v Oastler (NSW Court of Criminal Appeal, unreported, 7 October 1992). In the latter case it was clearly demonstrated that the sentencing judge had made significant errors of law in his perception of the operation of relevant sections of the then sentencing code now embodied in the Commonwealth Crimes Act. Lee AJ had been a member of the Court in R v Oastler and took the approach he adopted in R v Astill (No 2) . Sully J pointed out that Gleeson CJ, while agreeing with Lee AJ, added the following comment: "I agree with the orders proposed by Lee AJ and, in particular, I agree that although the applicant has succeeded in demonstrating that some of the steps involved in the process of reasoning of the learned sentencing judge involved some misapprehension on his Honour's part as to the effect of the relevant legislation, nevertheless the sentence ultimately imposed was not excessive."

The Crown submitted that the sentence in the present case was inadequate, for the reasons advanced in its submissions on the Crown Appeal. It also contended that if the Court re-exercised the sentencing discretion on the basis of the sentencing judge’s apparent misapplication of s 21A(2)(b), and possibly s 21A(2)(g), of the Crimes (Sentencing Procedure) Act , the objective seriousness of the offence required the imposition of a sentence of at least the period determined by Delaney DCJ, if not a greater period. Disregarding one, and even two, of the aggravating factors in s 21A(2) would not, the Crown submitted, result in a diminution of the sentence.

Turning to the complaint that the sentence was manifestly excessive, the Crown submitted that the remarks on sentence, when read in their entirety, demonstrated that the sentencing judge clearly considered each mitigating factor which arose in this case, and the appropriate weight to give each factor, in determining the appropriate sentence.

It submitted that given the weight the sentencing judge attributed to the various mitigating factors, the impact on the sentence of those factors did not lead to the conclusion that his Honour “actually started the focus of the sentence well above ‘the upper limit of the mid range’ ”. The Crown appeal: the Crown’s submissions

The Crown submitted that the sentencing judge erred in assessing the objective seriousness of the offence in characterising the offence only in the upper limit of the mid range. The Crown submitted that the objective seriousness was in the high range and his Honour’s sentence, because it commenced at the upper limit of the mid range, was manifestly inadequate.

The Crown submitted that the significant features of the criminality or objective seriousness that took this case into the high range were: (a) The malicious wounding of the victim by the respondent had the effect of killing the foetus (regarded by the law as part of the mother) that was otherwise healthy and viable; (b) The killing of the foetus was intended by the respondent; (c) The respondent had decided for a considerable period of time that he wanted the victim’s foetus killed; (d) The respondent attempted to procure other persons to kill the victim’s foetus for financial reward and when those attempts failed took the opportunity himself to attack the victim; and (e) The respondent knocked the victim to the ground without warning, pinned her down and repeatedly stomped on her stomach, multiple times, with the specific intent of killing the foetus. In the course of that attack the victim attempted to protect her stomach and suffered injuries to her wrist and shin as a result.

The Crown submitted, in substance, that the sentencing judge failed to give due weight to these matters.

The Crown submitted that the circumstances of this case were more serious than those in R v Lippiat (Queensland District Court, unreported, 24 May 1996) because of the degree of planning, including offers of financial reward, and the repeated ‘stomping’ of the respondent’s foot on the victim’s stomach.

Similarly, the Crown submitted the case was more serious than R v Huston (Queensland Supreme Court, unreported, 19 March 2003) because of the specific intent to kill the foetus that had been held by the respondent for a considerable period of time, the degree of planning and repeated ‘stomping’ of his foot on her stomach.

The Crown submitted that the sentencing judge’s error could be demonstrated as follows. His Honour allowed a discount for the plea of guilty of about 15%. He made some allowance for the likelihood that the respondent would spend time in more restrictive custody than would otherwise be the case “so far as weight can be given to it” and perhaps gave some small allowance for some expression of remorse by the respondent beyond his plea of guilty. He also took into account s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the relatively small number of Judicial Commission statistics provided. In arriving at a ten-year term, therefore, his Honour must have commenced with a starting point in the range of perhaps 12 to 13 years for the head sentence, assuming the allowance for protective custody was not a large one, or, without being able to quantify the figure precisely, a somewhat higher starting point if a greater allowance was made for protective custody. The Crown appeal: the respondent’s submissions

The respondent submitted that the Crown had not identified any error in the sentencing judge’s reasoning process. The respondent submitted that the sentencing judge’s reasoning process was sound and that in concluding that “the starting point for the focus of the sentence should be at the upper limit of the mid range”, the sentencing judge was exercising a discretion and his finding was open to him.

The respondent criticised the Crown’s attempt to demonstrate the sentencing judge’s error in its submission that the sentencing judge must have commenced with the starting point in the range of 12 to 13 years for the head sentence. The respondent submitted that process of analysis was inappropriate having regard to the “instinctive synthesis approach” to sentencing approved by Gaudron, Gummow and Hayne JJ in Wong v R [2001] HCA 64 at [75] – [78]; (2001) 207 CLR 584 at 661.

The respondent made the following submissions in the event that the Court was of the view that the sentencing judge had erred: (a) that the sentence imposed demonstrated that the sentencing judge started the focus of the sentence well above “the upper limit of the mid range”. In support of this submission the respondent relied on his written submissions in support of his application for leave to appeal against the severity of the sentence. (b) that the Crown’s submissions rely upon an assumption that a starting point of 12 or 13 years was not within the high range. The respondent submitted that there was no basis for this assumption. (c) if this Court were to interfere with the sentence it would require the Court to distinguish between the starting points for a sentence at the “upper limit of the mid range” with a sentence starting at the lower end of the “high” range. The respondent referred to Dinsdale v The Queen [2000] HCA 54 at [62]; (2000) 202 CLR 321 at 341 where Kirby J said: “… where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate “tinkering” with sentences.”

The respondent submitted that the Crown was seeking to have the Court “tinker” with the sentence imposed by the sentencing judge. Consideration The application for leave to appeal

I accept that the sentencing judge’s remarks on sentence are open to the interpretation for which the respondent contends, that in referring to s 21A(2)(b) and, as the Crown concedes, possibly s 21A(2)(g), he took into account as matters of aggravation two elements which were also elements of the offence. It is not clear how he took s 21A(2)(b) into account for he did not identify in his remarks on sentence his assessment of the degree of violence involved. Equally, he did not identify which of the factors enumerated in s 21A(2)(g) he took into account. I am prepared to infer, in the respondent’s favour, that he wrongly took the first, “injury”, into account and may therefore have double counted.

However, having regard to the conclusion I have reached on the Crown’s appeal that the sentence imposed was manifestly inadequate, no lesser sentence was warranted: s 6(3) Criminal Appeal Act 1912 (NSW).

In his oral submissions Mr Steirn SC also argued that the sentencing judge ought to have extended the respondent leniency because of the uncertainty to which he had been subject by virtue of the time taken to determine whether the s 33 charge was open in law: cf R v Todd [1982] 2 NSWLR 517 at 519 – 520 per Street CJ (with whose reasons the other members of the Court agreed); Mill v R [1988] HCA 70; (1988) 166 CLR 59 at 66.

In my opinion the circumstances in which the sentencing proceedings were deferred pending disposition of the stay proceedings do not attract the principles in Todd and Mill. The offence is not “stale” in the sense used in those cases. The fact is that the respondent chose to test the uncertain state of the law by applying for a permanent stay rather than, for example, standing trial and seeking an acquittal either by asking for a directed verdict on the basis the indictment did not disclose an offence or putting himself in the hands of the jury: cf R v King , above, at [25]. While, of course, the respondent is not to be penalised for moving for a permanent stay (and is not, in fact, because his sentence dates from the date of the offence), nor should he have the benefit of the premise underlying the Todd principle, that the sentencing proceedings should have been resolved earlier.

I would grant the respondent leave to appeal, but dismiss the appeal.

I turn then to the Crown appeal. Crown Appeals: principles

The principles concerning Crown appeals against sentence were summarised by Wood CJ at CL (with whom Meagher JA and Bell J agreed) in R v Wall [2002] NSWCCA 42 at [70] as follows: “(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle “for the governance and guidance of courts having the duty of sentencing convicted persons”: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62.”

The principles to which Wood CJ at CL referred in paragraph (a) require some elaboration. The meaning of patent error is plain. However the nature of latent error which may attract judicial intervention is somewhat more elusive. In House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 Dixon, Evatt and McTiernan JJ said the appellate court may exercise its own discretion in substitution for the sentencing judge, although the nature of the error was not discoverable, “if upon the facts it is unreasonable or plainly unjust” so that the appellate court could infer that there had been “a failure properly to exercise the discretion which the law reposes in the court of first instance.”

In Cranssen v R (1936) 55 CLR 509 at 520, delivered two days after the decision in House v The King , Dixon, Evatt and McTiernan JJ reiterated that in reviewing the adequacy of a sentence, “it is not necessary that some definite or specific error should be assigned” and that “[t]he nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound.”

Most recently in Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 605 [58], Gaudron, Gummow and Hayne JJ referred to the two situations in which an appellate court may conclude that a trial judge's exercise of discretion has miscarried, as being “cases of specific error of principle” and “the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy…[when] the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.” Kirby J said (at [109]), “Where specific error of sentencing principle is not demonstrated and the complaint is one of manifest inadequacy of the sentence, it is only where it is shown that the ‘sentence is definitely outside the appropriate range that [a court] is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence’. ” Determining the sentence

This Crown’s challenge to the adequacy of the sentence falls to be determined against the backdrop of Jordan CJ’s famous aphorism about sentencing that "the only golden rule is that there is no golden rule": R v Geddes (1936) 36 SR (NSW) 554 at 555. Having said that, however, his Honour observed that a judge should impose such punishment as: " ... having regard to all the proved circumstances of the particular case, seems, at the same time, to accord with the general moral sense of the community in relation to such a crime committed in such circumstances and to be likely to be a sufficient deterrent both to the prisoner and to others." This maxim, unsurprisingly, continues to apply: see Lupton v R [2003] NSWCCA 200 per O’Keefe J (Sheller JA and James J agreeing); R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198 per Grove J at [102]; R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 at [97] per Sully J (with whom Hidden J agreed); R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274; R v Rushby [1977] 1 NSWLR 594 at 598.

The legislative context in which the sentence was imposed appears from s 3A of the Crimes (Sentencing Procedure) Act 1999 which provides: “The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.”

In Re Attorney General's Application under S 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515 at [57]; (2002) 137 A Crim R 196 Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) suggested that the introduction of s 3A in 2002 might alter the application of pre-existing sentencing principles, but expressed no view about the matter as it had not been argued.

In R v M A [2004] NSWCCA 92 at [23] Dunford J (with whom Studdert and James JJ agreed) said that s 3A is in substance a codification and elaboration of the purposes of criminal punishment described in Veen v R (No 2) (1988) 164 CLR 465 at 476, an observation referred to without demur in Re Application By Attorney General (No 3 of 2002) [2004] NSWCCA 303 at [46] by Howie J (with whom Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreed).

In Veen v R (No 2) , above, at 476, Mason CJ, Brennan, Dawson and Toohey JJ said: “The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

Section 3A was inserted in the Crimes (Sentencing Procedure) Act 1999 by Schedule 1, cl 1 of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill . The Bill was intended to provide “further guidance and structure to judicial discretion in sentencing”: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002, at p 5813. The fact that s 3A was intended to reflect the principles I have quoted from Veen v R (No 2) is made plain in the Second Reading Speech to the Bill during which the Attorney General, the Honourable Bob Debus MP, quoted the above passage from Veen v R (No 2) as explaining that the new Bill would operate in an area which requires “the exercise of a complex judicial discretion”: Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 October 2002, at p 5815.

As Dunford J said in R v M A , above, at [23], the High Court in Veen v R (No 2) recognised the “troublesome but unavoidable difficulty in giving weight to each of those purposes which overlap”.

Troublesome though the task may be, it is essential that the sentence reflect the factors set out in s 3A. The fact that s 3A confers a discretion upon the sentencing judge as to the factors to be taken into account does not detract from that proposition. It reflects legislative recognition of the principles in Veen v R (No 2) and, in particular, the necessity to reconcile and rationalise the s 3A purposes in considering the sentence appropriate to the particular offence. The sentencing judge must reach an “instinctive synthesis” which takes account of and balances the “conflicting and contradictory” factors which bear upon the sentencing exercise: Wong v R , above, at 611 [75].

The nature of the exercise undertaken when imposing a sentence of imprisonment under the Crimes (Sentencing Procedure) Act was outlined by Howie J (with whom Hodgson JA and Levine J agreed) in R v Zamagias [2002] NSWCCA 17 at [23]: “23 It is clear that, when sentencing an offender to a term of imprisonment under that Act, a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes (1936) 36 SR (NSW) 554; R v Rushby [1977] 1 NSWLR 594.”

Although the sentence imposed is described as an “instinctive synthesis”, the sentencing judge is obliged to state fully the reasons for determining the sentence. The significance of reasons is well known however deserves restatement in the sentencing context. One of the purposes of the statement of reasons is to ensure that an appellate court can review the reasoning process: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 276 – 281; R v McDonald (1998) 28 MVR 432 per Spigelman CJ at 437.

Significantly, in the criminal context, reasons have an additional purpose. They serve to ensure that the criminal law is “administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community’s generally accepted standards which are fair and just”: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 622 [39] per McHugh J, Hayne J and Callinan J quoting Sir John Barry. In addition, as Brennan J said in Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 50: “… the victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances.” Objective criminality

In order to determine the appropriate sentence, the sentencing judge was required to identify the objective criminality of the offence as well as take subjective factors into account. In the former respect, it is relevant to note this Court’s statement in R v Dodd (1991) 57 A Crim R 349 at 354: “As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime… it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2 ) (1988) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case : Rushby [1977] 1 NSWLR 594.” (emphasis supplied)

In my opinion the Crown’s submission that the sentencing judge failed to give adequate weight to the criminality or objective seriousness of the offence is correct. Although, in dealing with objective criminality, he said he had reviewed the evidence which he found to be established beyond reasonable doubt, he did not identify what aspects of that evidence he regarded as relevant to determining the objective criminality of the offence.

Indeed, his Honour’s references to the issue of criminality as being “vexed”, to the “very unusual form of injury” and to the case being “unusual, if not unique” without elaboration indicate, to my mind, that he had some difficulty characterising the objective criminality of the offence.

The sentencing judge explained his conclusion that the starting point for the focus of the sentence should be the upper limit of the mid range by saying he had had “regard to the manner in which the offence was committed, taking into account s 21A of the Crimes (Sentencing Procedure) Act , reviewing the statistics of the Judicial Commission … and keeping in mind the wide variety of facts and circumstances that apply to cases of this type”.

His Honour’s remarks concerning objective criminality gave little insight into his appreciation of the gravity of the offence. Nowhere did he express the reasoning process he adopted in undertaking the exercise referred to in Dodd of assessing the objective gravity of the offence.

Although he acknowledged the seriousness of the offence in the sense that he referred to “the injury to the mother and the death of foetus”, his Honour did not expressly have regard to the premeditated nature of the offence, the cold-blooded manner in which it was contrived, let alone the violence that accompanied it or the permanency of the injury inflicted. While he had earlier referred to taking into account the aggravating factors that the offence involved gratuitous cruelty (s 21A(2)(f) and the vulnerability of the victim (s 21A(2)(l)), he did not address those matters by reference to the circumstances of the actual offence. His Honour’s failure to refer to the factors which determined the objective seriousness of the offence would in many cases lead to the inference that they were not given weight: see R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [52] per Spigelman CJ.

It is impossible to discern from the remarks on sentence what, if any, weight the sentencing judge placed on the Crown’s submissions concerning the objective criminality of the offence. It is equally impossible to discern how he treated Mr Steirn SC’s submission that the respondent was also a “victim”. In the light of his Honour’s findings concerning the circumstances in which the offence was committed, I would have expected that submission to have been rejected out of hand. Instead his Honour merely said it “significantly overstates the way in which this sentencing process is to be considered”, a cryptic and impenetrable remark.

Further, while his Honour recited a list of s 21A(2) and (3) matters he said he took into account he did not explain how and to what extent they operated by way of aggravation or mitigation. Indeed some of the matters which his Honour listed, such as s 21A(3)(i), which is the factor mitigating a sentence where the offender has shown remorse, were inconsistent with his earlier finding that the respondent’s expressions of contrition and remorse should receive little weight.

His Honour’s failure to deal expressly with the objective features of the offence stands in stark contrast to the detail he accorded to the respondent’s subjective circumstances. It is apparent from that disparity in treatment that the sentencing judge fell into the error identified in R v Rushby [1977] 1 NSWLR 594 and allowed the respondent’s subjective considerations to cause inadequate weight to be given to the objective circumstances of the case.

In my opinion the sentencing judge’s remarks concerning objective criminality fell far short of the obligation to state reasons expressed in Soulemezis , McDonald , Pearce and Jago .

His Honour’s failure to state his reasons in respect of the objective criminality of the offence is, itself, an error of law which would warrant setting aside his exercise of the sentencing discretion: R v McDonald (1998) 28 MVR 432 at 437.

His Honour was in error, in my opinion, in saying that the starting point for the focus of the sentence should be at the upper limit of the mid range.

The offence of malicious wounding with intent to do grievous bodily harm carries the highest maximum penalty prescribed by the legislature short of life imprisonment. In sentencing the respondent, the sentencing judge was required to bear in mind that that maximum penalty reflected the seriousness with which the public, through the legislature, considered the type of criminal conduct to which s 33 is concerned: R v Zamagias , above, at [11]. Although his Honour referred to the significance of the maximum penalty, in my opinion he fell into error in not characterising the offence as being in the high range, as the Crown submitted.

The objective seriousness of this offence was grave. The offence was premeditated, having being planned on the sentencing judge’s findings from April 2002 when Ms Flick informed the respondent that she did not intend to have an abortion. Having been unable to dissuade Ms Flick from having an abortion, the respondent sought to achieve his end by other means.

First, he tried to enlist others by payment to do the deed for him. Having been unsuccessful in this respect, the respondent turned to achieve that result by a violent attack.

He executed the offence in a cold-blooded and callous manner.

First he lulled Ms Flick into a sense of false security by, as the sentencing judge found, making comments to her which convinced her he was caring and induced her to the view that he was supportive. He was in frequent communication with her by SMS and arranged to visit her the night before her move for the apparently benign purpose of bidding her farewell.

However the idea that he wished to farewell Ms Flick was a pretext. His intention was to kill the foetus. In other words he intended to cause precisely the serious bodily harm he inflicted. That fact alone indicates the gravity of the offence.

The assault itself, so far as Ms Flick was concerned, came out of the blue. It was unprovoked and involved sustained and substantial violence inflicted by a man who was clearly of significant physical proportions. He knocked Ms Flick to the ground, then brought his booted foot down upon her abdomen six or seven times. The force of the assault can be gauged not only from Ms Flick’s evidence, but also from Dr McCaffrey’s opinion that her uterus underwent “significant trauma” to produce the result of causing the haemorrhage to the placenta and the consequent draining of the foetus’s blood thus leading to its demise.

Further, the offence cause Ms Flick permanent loss, a consequence which was inevitable once the respondent successfully executed his plan of killing the foetus.

In addition to the grievous bodily harm directly consequent upon the assault, the sentencing judge had evidence before him that the assault had caused grave emotional harm to Ms Flick.

It was apparent from answers Ms Flick gave in cross-examination that she was still reliving the assault 18 months later. She said: “Q. And this assault that you tell us about, you say he stomped on you six or seven times. You certainly remember that don’t you? A. I can still feel it of a night.”

In her victim impact statement Ms Flick said: “When the doctor told me that they could not find Jonathan’s [the name she had given the child] heartbeat, I felt my world was falling apart … After [the funeral] I just withdrew. I didn’t want to talk to anyone. I did not feel comfortable around people. I felt that I couldn’t trust people or judge me [sic, as in original] for not stopping what happened, not preventing it. I thought that I should have protected Jonathan, that I should have known that Phil was going to do this, and that I should have stopped him. I thought I shouldn’t have seen him at all. I find that I cry while watching television, over any little thing. I never did this before. For the first six months after the offence I cried myself to sleep every night …”

In my opinion, having regard to the objective circumstances of the offence, the sentence imposed was manifestly inadequate. His Honour’s errors are both patent, as appears from the matters to which I have referred, as well as latent, as appears from the fact that “[t]he nature of the sentence itself, when considered in relation to the offence and the circumstances of the case … afford convincing evidence that … the exercise of the discretion has been unsound”: Cranssen v R (1936) 55 CLR 509 at 520.

I would allow the Crown appeal. Before I consider the sentence which should be imposed, I consider two other matters which were debated during argument. Deterrence and youth

The general principle relating to deterrence was set out in R v Rushby [1977] 1 NSWLR 594 at 597 by Street CJ who said: “The law upon the matter of sentencing is well stated in the judgment of the Court of Appeal in New Zealand in R v Radich , a passage which has been cited in other judgments on numerous subsequent occasions: ‘one of the main purposes of punishment … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet with severe punishment. In all civilised counties, in all ages, that has been the main purpose of punishment, and it still continues so. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does, and will, prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment, or with only a light punishment. If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand, justice and humanity both require that the previous character and conduct, and probable future life and conduct of the individual offender, and the effect of the sentence on these, should also be given the most careful consideration, although this factor is necessarily subsidiary to the main considerations that determine that appropriate amount of punishment.’ ”

Mr Steirn SC submitted that because this was an “exceedingly rare” offence committed by a young offender the general deterrence factor should give way to his youth. This was because, he contended, in the context of general deterrence, the most predominant factor was the frequency of the offence in the community. In this respect he relied upon the statement in R v Pham , above, to which the sentencing judge referred and which I have set out in [75].

In my opinion this submission was fundamentally misconceived both as a matter of fact and law.

First, the offence of maliciously inflicting grievous bodily harm is, regrettably, one of frequent occurrence. The Judicial Commission’s statistics for the offence from April 1997 to March 2004 show 211 such cases were dealt with by courts other than the Local Court, 84% of which resulted in a prison sentence for offenders with no prior convictions (a characterisation I am prepared to extend to the respondent, as did the sentencing judge, notwithstanding his record for earlier but relatively minor matters).

Secondly, if Mr Steirn SC’s submission was intended to refer to the fact that the “rarity” lay in the fact the grievous injury inflicted was to Ms Flick’s placental sac and the foetus and that she herself did not continue to suffer physical (as opposed to emotional) injury, it reflects a complete misunderstanding of the criminality of the offence. The offence to which the respondent pleaded guilty was of malicious wounding with intent to do grievous bodily harm. The manner in which that harm was inflicted cannot distract attention from the fact that the plea of guilty reflected recognition that he had inflicted serious physical injury: R v Sergi [1974] VR 1 at 6 per Winneke CJ, Smith and Menhennitt JJ (referring to the trial judge’s direction to the jury which was approved); R v Blevins (1988) 48 SASR 65.

Thirdly, the youth of the offender is only one matter to be taken into account in all the circumstances of the case. In R v M A , above, at [26], Dunford J rejected the proposition that favourable subjective circumstances such as youth and prospects of rehabilitation override or take precedence over deterrence, punishment and the protection of the community. His Honour said: “[27] Deterrence, retribution and protection of the community are not to take precedence to the exclusion of rehabilitation, but neither is rehabilitation to take precedence over deterrence, retribution and punishment. All must be balanced in the overall synthesising of the sentence. [28] It is true that in the case of young offenders, there is generally greater emphasis given to rehabilitation and less to deterrence than in the case of adult offenders, but that depends in part on the age of the young person and the circumstances of the offence; and there comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence, is so great that the special attention normally given to rehabilitation in the case of young offenders must give way, and greater emphasis given to punishment and deterrence. The relevant principle was summarised in the joint judgment of this court in R v AEM Snr and Ors [2002] NSWCCA 58 at [97]-[98] as follows: It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society. and their Honours quoted what had been said by Lee AJ in R v Nichols (1991) 57 A Crim R 391 at 395 as follows: However there is a point at which the seriousness of the crime committed by a man of 19, even though a young man, is of such a nature is so great, that the principle must, in the public interest, give way. [29] See also R v Pham (1991) 55 A Crim R 128 at 135, R v Tran [1999] NSWCCA 109 at [9]-[11], R v Gordon (1994) 71 A Crim R 459 at 469, R v Hearne [2001] NSWCCA 37, 124 A Crim R 451 at [24].”

Moreover, even if the submission that the offence was “rare” was correct, that does not mean that consideration should not be given to the deterrent effect of the sentence. Indeed, in such cases the words of Abadee J in Taouk v R (1992) 65 A Crim R 387 at 417, uttered in the context of sentencing for the offence of attempting to pervert the course of justice, are apposite: “[a] deterrent sentence is called for to ensure that the offence which rarely occurs, does not become one of any greater frequency”, as too is his statement that “[t]he courts in sentencing must make it plain that this type of conduct will not be tolerated”. Such sentiments have equal resonance in the context of the infliction of grievous bodily harm intended to kill a foetus.

What was critical was that the respondent in a deliberate and cold-blooded manner assaulted Ms Flick because he had been unable to secure his objective either through persuasion or hiring others to do so. This was not the crime of an immature youth, but one conceived and executed in an adult manner.

The case was clearly one which called for a significant element of general deterrence to convey to persons in the respondent’s position that engaging in such conduct will attract a severe penalty. The sentence must reflect the community’s disapprobation of the respondent’s conduct. Impact of the offence on the victim

The weight the sentencing judge accorded to Ms Flick’s victim impact statement is not clear. As his remarks on sentence indicate, he referred to it early in the piece. However subsequently (as I have earlier noted, but repeat for convenience) he said that he had considered the matters which appeared in the victim impact statement but “conformably with authority, see R v Previtera and Bollen v R (1998) 99 A Crim R 510 [have] not made use of it so as to increase the penalty that would otherwise be imposed”.

In R v Previtera , above, at 85, Hunt CJ at CL said that despite s 23C(3) of the Criminal Procedure Act 1986 (NSW) which required the sentencing judge to receive and acknowledge victim impact statements but not consider the statement in connection with the determination of the punishment to be imposed “unless the Court considers that it is appropriate to do so”, it could never be appropriate to take a statement of that nature into account in sentencing the offender. This was because, in his Honour’s view, in a case of murder, the reactions of the victim’s relatives were not relevant to the task of sentencing the prisoner (at 87). On the other hand, his Honour made it plain that the consequences of the crime upon the victim directly injured by it are always relevant to sentencing the offender as part of the objective circumstances of the crime and, in appropriate cases, to aggravation of those circumstances.

In R v Bollen , at 529, Hunt CJ at CL referred to his judgment in Previtera and opined that it remained “the only valid interpretation of s 23C”.

In R v Berg [2004] NSWCCA 300 at [43] Spigelman CJ suggested that the reasons given in Previtera may need to be reconsidered in an appropriate case because s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 acknowledges that one of the purposes of sentencing is “to recognise the harm done to … the community”. This is notwithstanding the fact that s 28 of the same Act, which determines when victim impact statements may be received and considered, contains the same language as was present in s 23C. Wood CJ at CL agreed with the Chief Justice’s observations although (at [48]) he sounded a note of caution concerning fact-finding in relation to the impact of a crime upon other members of the community or, indeed, upon the victim to ensure that injustice did not occur to the person standing for sentence where the makers of statements concerning that impact were not available for cross-examination.

Mr Steirn SC submitted that the victim impact statement could not be used where the material contained in it could not be tested or otherwise examined upon. He referred to psychologist’s reports which were attached to Ms Flick’s victim impact statement, noting that they contained “a great deal of hearsay material”. He pointed to the collateral issues which might arise if such reports were taken into account on sentencing where, for example, an offender sought to rebut such evidence by requiring the victim to be examined by a psychiatrist.

In R v Slack [2004] NSWCCA 128 at [62] Sperling J referred to the fact that in a sentencing hearing, although the rules of evidence did not apply, the Court was required to be satisfied of the facts in question beyond reasonable doubt and suggested that substantial weight could not be given to an account of harm in an unsworn statement which was untested by cross-examination and “in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim”.

This case falls into a somewhat different category. Leaving aside the issue of the psychologist’s reports, Ms Flick was called to give evidence and was extensively cross-examined by Mr Steirn SC. Her victim impact statement was admitted without objection. Ms Flick was not challenged, in cross-examination, to the effect that anything set out in her victim impact statement did not constitute an accurate account of the harm she had suffered as a result of the offence.

Before the sentencing judge the Crown submitted that the victim impact statement demonstrated that Ms Flick had suffered permanent loss of great significance to her. In my opinion that submission was correct. The permanency of Ms Flick’s loss went to the objective criminality of the offence. Nothing in Previtera or Bollen is inconsistent with that proposition.

In my view, the sentencing judge erred in saying that he had not used the matters in Ms Flick’s victim impact statement by way of aggravation of the sentence which should be imposed.

I accept, however, Mr Steirn SC’s proposition that it would be inappropriate to take into account the psychologist’s reports apparently attached to Ms Flick’s statements. That is not least because there was no opportunity to cross-examine the psychologist during the sentencing hearing. Re-sentencing the respondent

In my view the objective criminality of this offence was in the upper range of objective seriousness. It called for a very significant element of general deterrence to send the clearest possible message to those in the respondent’s position that such conduct will attract stern punishment. A civilised community cannot tolerate conduct of the nature manifest in this offence. The community’s abhorrence of such conduct must be reflected in the severity of the sentence.

I am conscious, as too was the sentencing judge, that extreme caution must be exercised to ensure that the respondent is not sentenced for an offence which was not the charge he faced, namely killing Ms Flick’s unborn child.

I have taken into account the subjective factors the sentencing judge considered. I have also accepted the evidence in the affidavits tendered on the appeal which disclose that the respondent is in Cooma Correctional Centre where employment, educational courses and counselling are available to him and that he has undertaken several such courses and intends to continue such pursuits. He is no longer on protection, having voluntarily signed off protection on his arrival at Cooma. He is allowed out of his cell between 7 am and 8.30 pm as are all other inmates. He clearly has prospects of rehabilitation.

I have taken into account that in re-sentencing the respondent, the Court must recognise the element of double jeopardy involved in the respondent twice standing for sentence by imposing a sentence which is less than the sentence it considers should have been imposed at first instance. This has been described as “the least sentence which could properly have been imposed …at first instance”: R v Rose (NSW Court of Criminal Appeal, unreported, 23 May 1996), as “one which is at the bottom of the range”: R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348 at [28] and one “towards the lower end of the range of available sentences”: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [62] per Kirby J; or the “minimum sentence which should have been imposed at first instance”: R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 at 204 [206] per Hulme J.

I propose the following orders: (1) Respondent given leave to appeal against severity of sentence but appeal dismissed. (2) Crown appeal against inadequacy of sentence allowed. (3) Quash the sentence below and in lieu thereof sentence the respondent to a term of imprisonment for 12 years to commence on 21 August 2002 with a non-parole period of 8 years, similarly to commence on 21 August 2002 and to expire on 20 August 2010.

HOWIE J: I agree with McColl JA.

BUDDIN J: I agree with McColl JA.