R v Lulham

1. [1]

   BATHURST CJ: I have had the advantage of reading the judgment of Bellew J in draft. I agree with his Honour’s orders and, subject to what I have written below, with his reasons.

2. [2]

   In his judgment ([24]-[25]), Bellew J has dealt with the argument that the fact that the offence occurred at the victim’s home cannot be taken into account as an aggravating factor in circumstances where the offender was not an intruder.

3. [3]

   I agree with what is said by his Honour in those paragraphs, but it was also argued that the offence did not occur in the home as it took place at the top of the driveway rather than in the physical residence.

4. [4]

   The expression home is not defined in the Crimes (Sentencing Procedure) Act 1999 (NSW), although dwelling house is defined as including “any building or other structure within the same curtilage as a dwelling house and occupied therewith or whose use is ancillary to the occupation of the dwelling house”. In Aguirre v R [2010] NSWCCA 115 it was held that a carport on a driveway on a person’s property would fall within that definition: at [57]. However, the legislature chose to use a different expression for the purpose of s 21A(2)(eb).

5. [5]

   The word “home” must be considered in the context in which it appears in the legislation. As was made clear in the Second Reading Speech, to which I have referred in Jonson v R at [14], the reason it can be taken into account as an aggravating factor is that an offence to which the subsection applies involves a violation of the victim’s reasonable expectation of safety and security in his or her home. It seems to me this expectation would extend not only to the actual physical residence but to the area on the same premises, at least reasonably adjacent to that building.

6. [6]

   As I also pointed out in Jonson at [52], the fact that the offence occurred in the home will not be an aggravating factor in all circumstances. When the offence occurs on the premises in question, but not in the physical residence, it would be a matter for the sentencing judge to determine whether, on ordinary sentencing principles, it does in fact aggravate the offence. In the present case, it was open to the sentencing judge to conclude that it did.

7. [7]

   In dealing with the question of special circumstances, Bellew J has stated that, before such a finding can be made, it is necessary for a sentencing judge to be satisfied that there exists significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful as opposed to a mere possibility. I agree there must be evidence on which a finding of special circumstances is based. However, in dealing with rehabilitation, it seems to me a judge would be entitled to find special circumstances if there is evidence before him or her that demonstrates that the offender has prospects of rehabilitation and that these prospects would be assisted if a longer parole period was allowed. I agree, however, with Bellew J that in the present case there was no evidence before the sentencing judge on which such a conclusion could be based.

8. [8]

   BEAZLEY P: I have had the advantage of reading in draft the reasons of Bathurst CJ and Bellew J and N Adams J. Save for the observations made by Bellew J at [54] that “a sentencing judge must be satisfied that there exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful as opposed to a mere possibility”, I agree with his Honour’s reasons and proposed order. I also agree with the additional reasons of the Chief Justice and N Adams J. I wish only to make the following brief observations in respect of the question of special circumstances.

9. [9]

   As this Court explained in R v Dashti [2016] NSWCCA 251 at [84] a finding of special circumstances is integrally linked with the determination of an appropriate parole period. Although the statement of Bellew J to which I have referred in the previous paragraph is supported by authority, regard must always be had to the context in which a particular statement is made. The seemingly unqualified nature of his Honour’s observation would not be appropriate in every case.

10. [10]

    An obvious, but not the only circumstance where his Honour’s observation may not be appropriate, is in the case of a long prison sentence where the prospects of rehabilitation may be difficult to assess or, at that stage, even be non-existent. The Court may nonetheless be satisfied that a finding of special circumstances is appropriate to assist or promote an offender’s rehabilitation. As Spigelman CJ explained in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [58], that may be an appropriate approach to the question of special circumstances in a given case: see generally the discussion in Dashti at [81]-[91].

11. [11]

    HALL J: Subject to one matter referred to below, I agree, for the reasons given by Bellew J, that the Crown appeal should be dismissed. On the issue of special circumstances, I agree with the observations in [7] of the Chief Justice’s judgment as to what the evidence should establish to support a finding of special circumstances based on prospects of rehabilitation.

12. [12]

    BELLEW J: Craig Alistair Lulham (“the respondent”) pleaded guilty in the Local Court to an offence of wounding with intent to cause grievous bodily harm, contrary to s. 33(1)(a) of the Crimes Act 1900 (NSW). The offence was committed on 6 February 2015. Upon his arrest on that day, the respondent was refused bail. He remained in custody for a period of 1 month and 13 days before being released.

13. [13]

    When the respondent appeared before the District Court for sentence on 11 March 2016, he asked the sentencing judge (Madgwick QC ADCJ) to take into account two matters on a Form 1, each alleging an offence of destroying or damaging property of a value less than $2000.00 committed on the same day as the offence in [4] above.

14. [14]

    On 11 March 2016 the respondent was sentenced to 2 years imprisonment, with a non-parole period of 1 month and 13 days to date from 6 February 2015.

15. [15]

    By a notice filed on 1 April 2016, the Deputy Director of Public Prosecutions for NSW appeals, pursuant to s. 5D of the Criminal Appeal Act 1912 (NSW), against that sentence, on the ground that it is manifestly inadequate.

THE FACTS

1. [16]

   The sentencing judge found the facts of the offending to be as follows (commencing at ROS 1):

EVIDENCE BEFORE THE SENTENCING JUDGE

1. [17]

   The respondent’s criminal history was before the sentencing judge. It recorded two matters before the Children’s Court in 1991, neither of which involved an allegation of violence. The respondent has no history of criminal offending as an adult.

2. [18]

   A pre-sentence report was also tendered before the sentencing judge. It recorded that the respondent accepted full responsibility for his offending, that he agreed with the facts, and that he stated that he had purchased a hammer with the intention of damaging a car belonging to the victim. The report continued:

3. [19]

   A report of Gerry Wenzel, Clinical Psychologist, was also tendered in the respondent’s case on sentence. Mr Wenzel noted that the respondent was not able to identify any pre-existing psychological or psychiatric disorders. He expressed the view that the fact that the respondent had acted aggressively on this occasion was seemingly a reflection of “a possible impulse control disorder which has at no time ever been diagnosed or treated”.

4. [20]

   In terms of the respondent’s prospects of rehabilitation, Mr Wenzel said:

5. [21]

   Mr Wenzel concluded:

The seriousness of the respondent’s offending

1. [22]

   His Honour assessed the objective seriousness of the respondent’s offending as “close to but just a little below a mid-range offence” (at ROS 7). In reaching that conclusion, his Honour said the following (commencing at ROS 5):

2. [23]

   The sentencing judge also found that the offending was aggravated by a number of factors (commencing at ROS 6):

3. [24]

   It should be noted at this point that the sentencing judge’s finding that the offending was aggravated by the fact that the victim was attacked in his own home raised the question of the proper interpretation of s. 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In particular, it raised the question whether the fact that an offence occurred at a victim’s home can be taken into account as an aggravating factor, in circumstances where the offender was not an intruder but was entitled to be at the victim’s home at the time of the offence.

4. [25]

   The same issue was raised in the matter of Jonson v R [2016] NSWCCA 286 which was heard on the same day as this matter. The Court heard submissions on this issue in the course of hearing both appeals. Those submissions are summarised in the judgment of Bathurst CJ in Jonson at [11]-[21]. The Chief Justice (with whom the other members of the Court agreed) concluded (at [40]) that the Parliament did not intend that the operation of s. 21A(2)(eb) be limited to circumstances where the offender was an intruder, either in the victim’s home or in some other home. Accordingly, the offending in the present case was aggravated in the way in which the sentencing judge found.

The respondent’s subjective circumstances

1. [26]

   His Honour found (at ROS 5) that for his entire adult life the respondent had been a completely law-abiding person, and that there was no suggestion that he was ever given to violence and threats. His Honour expressly referred (at ROS 6) to the respondent’s good character, and found that he had “repeatedly expressed his remorse for his conduct and had … expressed his concern for the victim’s welfare”. His Honour noted, in particular, the Crown’s concession that the respondent’s expressions of remorse were genuine.

2. [27]

   His Honour also found that the respondent had pleaded guilty at the earliest possible opportunity and had acknowledged his conduct from the very outset, before going on to say (at ROS 6):

3. [28]

   Finally, his Honour found that the respondent had “very good” prospects of rehabilitation, before observing that he had been on bail for approximately one year, reporting three times a week and having been “subject to some restrictions of his liberty”.

The sentence imposed

1. [29]

   His Honour concluded (commencing at ROS 7):

THE GROUND OF APPEAL

1. [30]

   The Crown appeal is brought upon a single ground, namely that the sentence is manifestly inadequate.

Submissions of the Crown

1. [31]

   The Crown submitted that the sentence imposed upon the respondent was plainly unjust, so far below the range of sentences that could properly be imposed consistent with appropriate sentencing standards, and so manifestly inadequate as to be likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 at [24].

2. [32]

   In advancing that submission, counsel for the Crown did not assert patent error. Rather, it was submitted that the sentence which was imposed was “an inadequate response” to the findings which had been made by the sentencing judge, having regard to the application of relevant sentencing principles. It was submitted, in particular, that the sentence:

3. [33]

   In developing these submissions, counsel for the Crown drew attention to the fact that the offence carried a maximum penalty of 25 years imprisonment, and a standard non-parole period of 7 years. It was submitted that these provisions provided an important yardstick in the determination of an appropriate penalty: Muldrock v R [2011] HCA 39; (2011) 244 CLR 120.

4. [34]

   The Crown also pointed to the fact that the respondent’s offending was characterised by:

5. [35]

   The Crown also drew attention to each of the matters on the Form 1, pointing out they involved two separate attacks on the victim’s property.

6. [36]

   The Crown submitted that each of these matters had properly been taken into account by the sentencing judge, and that they supported his finding as to the objective seriousness of the offending. However, the Crown submitted that there was a significant disconnect between that finding, and the sentence which was imposed. The Crown also relied on the extent to which the sentencing judge had varied the statutory ratio between the head sentence and the non-parole period as a further indication of the manifest inadequacy of the sentence.

7. [37]

   In the event that the ground of appeal was made out, the Crown submitted that the Court’s residual discretion should not be exercised: CMB v Attorney-General for NSW (2015) 317 ALR 308; [2015] HCA 9 at [33]. In that regard, the Crown submitted that:

8. [38]

   In advancing those submissions, the Crown acknowledged that the fact that the non-parole period had expired was a relevant factor in determining whether the relevant discretion should be exercised. However, it was submitted that the significant disparity between the sentence imposed, and that which was necessary to (inter alia) reflect the objective seriousness of the offending, was such that the residual discretion should not be exercised in the present case, and that the Court should intervene and re-sentence the respondent.

Submissions of the respondent

1. [39]

   Senior counsel for the respondent submitted that the term of imprisonment which was imposed was clearly open to the sentencing judge, and that whilst the non-parole period was obviously favourable to the respondent, it was also one which recognised the entirety of the circumstances of the case.

2. [40]

   Senior counsel submitted that the sentencing judge had in fact erred in his assessment of the objective seriousness of the offending. He submitted that the section under which the respondent was charged traversed a great diversity of offending behaviour and that properly assessed, the respondent’s offending was within, or very close to, the low range.

3. [41]

   Senior counsel further submitted that the finding of special circumstances made by the sentencing judge was clearly open, and that although the extent to which his Honour varied the statutory ratio was obviously favourable to the respondent, it was not so lenient as to disclose error. It was further submitted that the respondent’s subjective case was significant because he:

4. [42]

   In all of these circumstances, senior counsel submitted that the sentence imposed was not manifestly inadequate. He further submitted that if this Court came to a contrary conclusion, it should exercise its discretion not to intervene because:

Consideration

1. [43]

   In my view, the finding of the sentencing judge as to the objective seriousness of the offending was open. The offending was characterised by the use of a weapon of a kind which was clearly likely to cause grievous bodily harm in the event that it was used to strike another person. Significantly, the respondent struck the victim not once, but twice, causing injuries which were significant.

2. [44]

   Moreover, the offending was not spontaneous, and reflected some degree of planning. The initial confrontation between the respondent and the victim occurred at about 4:00pm, following which the victim left the premises. Between that time and the time of the victim’s return, not only did the respondent damage the victim’s property, he also sent a number of text messages to the victim. The terms of those text messages were set out in the reasons of the sentencing judge. The message sent at 6.43pm was particularly threatening towards the victim.

3. [45]

   There is a significant disparity between his Honour’s finding as to the objective seriousness of the offending, and the sentence which he ultimately imposed. In my view, even allowing for the respondent’s subjective case, the sentence imposed was manifestly inadequate, and resulted from his Honour giving undue weight to the respondent’s subjective case. I have reached this conclusion for a number of reasons.

4. [46]

   Firstly, his Honour referred, on more than one occasion, to the fact that the case was “unusual” (see ROS 1, ROS 5 and ROS 9). It is apparent that his Honour reached that view because of the respondent’s lack of criminal history, and his general subjective case. There was nothing of particular significance in the respondent’s subjective case. Categorising the matter as “unusual” on that basis significantly overstated the position.

5. [47]

   Secondly, his Honour found (at ROS 8) that the requirement to have regard to general deterrence was “greatly mitigated by this prisoner’s own personal situation”. There was nothing in the respondent’s subjective case which mitigated the need to have regard to considerations of general deterrence. The inadequacy of the sentence imposed by his Honour is such that it would have little, if any, deterrent effect.

6. [48]

   Thirdly, his Honour’s finding (at ROS 8) that the Court “should strain against actual imprisonment where the result of proper sentencing principle would be that the effective sentence must be very low” tends to contradict his earlier finding (at ROS 8) that the matter was “sufficiently serious to warrant punishment by pronouncement of a sentence of imprisonment” such that “actual imprisonment should be imposed”. Moreover, the proper application of sentencing principle should have resulted in a substantially greater sentence being imposed.

7. [49]

   In all of these circumstances, I am driven to the conclusion that his Honour gave undue weight to the respondent’s subjective case, leading to a result which failed to meet fundamental purposes of sentencing. Whilst his Honour was obviously bound to take the respondent’s subjective matters into account, he was required to balance them against the objective seriousness of the offending. The sentence imposed reflects a failure to carry out that balancing exercise. In that regard, the observations of Howie J (with whom Simpson and Buddin JJ agreed) in SZ v Regina (2007) 168 A Crim R 249; [2007] NSWCCA 19 remain apposite:

8. [50]

   In my view, the sentence imposed by his Honour was well beneath the “bottom line” which was applicable to the circumstances of this case.

9. [51]

   Further in my view, the error in imposing a sentence which was obviously manifestly inadequate was compounded by two further factors, namely:

10. [52]

    It would appear from his Honour’s observations (at ROS 4) that he found special circumstances on the basis of:

11. [53]

    Whilst the offending was “one-off” in the sense that the respondent had no history of such behaviour, the fact remains that upon the victim’s return to the premises, he was essentially set upon by the respondent and struck with the claw hammer. Even if the description of the offending which was adopted by his Honour was accurate, it is difficult to see how it had any bearing upon a finding of special circumstances. Moreover, the “general circumstances of the matter” upon which his Honour’s finding of special circumstances was apparently partly based, were wholly unexplained.

12. [54]

    There is no statutory definition of “special circumstances”, but a finding that such circumstances are established is integrally linked with the determination of an appropriate non-parole period, that being the minimum period for which an offender must be kept in detention in relation to the offence: R v Dashti [2016] NSWCCA 251 at [84] per the Court (Beazley P, Garling and Fagan JJ). A wide range of factors are capable of constituting special circumstances: Dashti (supra) at [89]. However before a finding of special circumstances can be made, it is necessary for a sentencing judge to be satisfied that there exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful as opposed to a mere possibility: R v Carter [2003] NSWCCA 243 at [20]; R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399 at [57]). There was no evidence whatsoever which supported that conclusion in the present case. Indeed, his Honour does not appear to have addressed the issue at all. I am satisfied that, again relying upon the respondent’s subjective case, his Honour elevated the respondent’s circumstances to the category of “special”, in circumstances where the evidence simply did not warrant it. The circumstances were not sufficiently special to warrant a departure from the statutory ratio: R v Fidow [2004] NSWCCA 172 at [20]-[22].

13. [55]

    Moreover, even if special circumstances are made out, a sentencing court is not permitted to reduce a non-parole period to a level below that which is necessary to punish the offender, and act as a deterrent to the offender or others: R v Cramp [2004] NSWCCA 264 at [34]. The extent of the variation adopted by his Honour in the present case fell foul of that principle. A non-parole period is correctly to be seen as a mitigation of punishment in favour of rehabilitation through conditional freedom by parole. Ultimately, the non-parole period actually imposed must be the minimum period of custody appropriate to all of the circumstances of the offence: R v Zolfonoon [2016] NSWCCA 250 at [77] per the Court (Beazley P, Garling and Fagan JJ) citing Bugmy v R (1990) 169 CLR 525; [1990] HCA 18 and Power v R (1974) 131 CLR 623; [1974] HCA 26. Whilst personal deterrence was not an issue in the present case, the non-parole period imposed acts as no general deterrent at all. The minimum period of custody which was appropriate in the present case was substantially greater than that which his Honour imposed.

14. [56]

    Finally, I have previously noted that the respondent asked the sentencing judge to take into account two additional matters on a Form 1, each of which related to separate acts of violence which caused damage to the victim’s property. In Attorney-General’s Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, Spigelman CJ (with whom the other members of the Court agreed) said at [18]-[19]:

15. [57]

    A sentencing court must impose a sentence for the totality of the criminality before it, reflected in both the principal offence for which the offender is to be sentenced, and any further offences which are to be taken into account. It is not the case that matters which are to be taken into account are to simply be noted in passing, or that little by way of additional penalty should be imposed by reason of their existence: R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 at [30] per Wood CJ at CL (with whom Beazley JA (as her Honour then was) and Greg James J agreed) citing R v Morgan (1993) 70 A Crim R 368 at 372 per Hunt CJ at CL.

16. [58]

    In the present case, his Honour noted (at ROS 9) that he had taken the Form 1 matters into account. The sentence which was ultimately imposed on the respondent does not reflect any proper weight having been given to those matters.

17. [59]

    For all of these reasons, the sentence imposed in the present case reflected:

18. [60]

    The sentence imposed was manifestly inadequate. The ground of appeal has been made out.

THE RESIDUAL DISCRETION

1. [61]

   It remains to consider whether this Court should exercise its discretion and decline to intervene. In determining this question I have had regard to the affidavit material filed on the respondent’s behalf which establishes the following:

2. [62]

   I am satisfied that the respondent has made some progress in his rehabilitation since his release from custody. Whilst the offending warrants a substantial sentence of fulltime custody, including a substantial period of time to serve, returning the respondent to custody at this point would necessarily have a deleterious effect upon the steps he has taken towards his rehabilitation since the offence was committed.

3. [63]

   In all of those circumstances I have concluded that this Court should exercise its discretion not to intervene and re-sentence the respondent.

4. [64]

   I propose the following order:

5. [65]

   N ADAMS J: I agree with Bellew J that although the sentence imposed in this matter was manifestly inadequate this Court should nonetheless exercise its discretion not to intervene and re-sentence the respondent. I agree with Bellew J’s reasons save as for his Honour’s observation at [54] concerning the need for “significant” positive signs that rehabilitation is likely to be successful before making a finding of special circumstances. That issue has already been the subject of additional comment by Bathurst CJ, Beazley P and Hall J and I do not propose to add anything further to what their Honours have said. I do wish, however, to make an additional comment regarding the commencement date of the sentence imposed by the sentencing judge in this matter.

6. [66]

   The first two of the five factors enumerated by Bellew J at [61] as being relevant to the exercise of the residual discretion in this matter concern what at first blush would appear to be delay on the part of the Director in filing a Notice of Appeal. That is not the case. The respondent was sentenced on 11 March 2016 and the Notice of Appeal dated 31 March 2016 was filed on 1 April 2016. The fact that the respondent‘s non-parole period has long expired and his head sentence expires in less than three months is not due to any delay on the part of the Director. Rather, it is a result of the manner in which the sentencing judge backdated the sentence.

7. [67]

   The respondent was arrested on 6 February 2015 and refused bail. He was released on conditional bail on 18 March 2015 and remained in the community on bail until he was sentenced on 11 March 2016. He had thus spent one month and 13 days in custody in relation to this matter at the time of sentence. The sentencing judge took this pre-sentence custody into account by imposing a non-parole period of one month and 13 days backdated to the date of arrest (6 February 2015) and an additional term of one year, 10 months and 17 days to commence on 19 March 2015 and to expire on 5 February 2017. This unconventional approach resulted in the period of time that the respondent spent on bail from 18 March 2015 until 11 March 2016 retrospectively becoming time that the respondent was deemed to have spent on parole.

8. [68]

   That the sentencing judge was required to take into account the respondent’s pre-sentence custody is uncontroversial: see ss 24(a) and 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW). This Court has observed that expressly backdating the commencement of a sentence to reflect the period of pre-sentence custody is the preferable approach to take to achieve this because an offender can readily see that the time has been taken into account: per Howie J in Wiggins v R [2010] NSWCCA 30 at [3], cited by Wilson J in Salafia v R [2015] NSWCCA 141 at [66]-[67].

9. [69]

   The difficulty with the approach taken by the sentencing judge in this matter is that, instead of backdating the sentence imposed on 11 March 2016 by one month and 13 days to take into account the pre-sentence custody, his Honour backdated the sentence by more than a year. That approach, prior to varying the statutory ratio to reflect his Honour’s finding of special circumstances, had the effect of taking into account time spent on bail as being pre-sentence custody. There was no suggestion before his Honour that the bail conditions to which the respondent was subject were analogous to “quasi-custody” in any way: R v Eastway (unreported, NSWCCA, 19 May 1992) per Hunt CJ at CL at 6-7; R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342 per James J at [23]. Nor would such a finding have been open on the evidence.

10. [70]

    Putting to one side the length of the sentence and the finding of special circumstances, there was no error in and of itself in commencing the sentence from the earlier date; s 47(2)(a) Crimes (Sentencing Procedure) Act provides that a court may direct that a sentence commence “on a day occurring before the day on which the sentence is imposed.” Despite this, as was conceded by counsel for the Director at the hearing of the appeal, the structure of the sentence rendered the Crown appeal a difficult one from the perspective of the residual discretion. For my part, the preferable approach would have been for the sentencing judge to have backdated the sentence one month and 13 days from the date of sentence.