Medcalf v R

HOEBEN CJ at CL:

Her Honour sentenced the applicant as follows:

The applicant seeks leave to appeal from those sentences on the following grounds:

An agreed set of facts was before the court. The victims were both employed as cleaning contractors and were cleaning a property in Medowie. The applicant had been in Raymond Terrace for some time and was driving in the Medowie area. Between 3.20pm and 4pm he approached the premises in which the two victims were cleaning on two separate occasions. On the first occasion he looked over the rear six foot fence and used a piece of timber in order to assist him to look over the fence. On the second occasion he entered the rear yard and spoke to both victims on a pretext about a lost tennis ball.

The victims continued to clean the premises. They moved inside and were listening to music. The applicant entered the premises through the front door carrying two items with him - a roll of black electrical tape and a cotton hand wrap which he was wearing on his left hand.

Without warning, he struck Ms Gardner twice to the left side of her face. After being struck, Ms Gardner fell to the ground and lost consciousness.

Ms Flick was unaware of the applicant’s presence. She turned around and observed him in the family room. Again without warning, he placed Ms Flick in a headlock and began to punch her in the face with his left fist. She resisted but was overwhelmed and quickly rendered unconscious by the blows to her head. While she was unconscious, the applicant wrapped black electrical tape around her mouth. It was over 3 metres long. He then positioned Ms Flick and Ms Gardner on the floor of the family room, side by side and left the premises.

Shortly thereafter, the victims regained consciousness and sought help. They were hospitalised with significant injuries. Ms Gardner had a severely broken jaw, had two front teeth knocked out and suffered further cuts and abrasions to her face and body. She required surgery to insert a metal plate, screws and wire to repair the break. Ms Flick required sutures to a laceration to her left eye, she suffered multiple cuts, bruises and abrasions to her face and body. Both victims were extremely traumatised as a result of the attack.

Her Honour had before her victim impact statements from each of the victims which she took into account as indicating the consequences for the victims of the injuries they had suffered. Ms Flick said that she had to take painkillers for three months and suffered severe psychological effects. She said that she had been diagnosed with post traumatic stress disorder. Ms Gardner has been left with permanent damage to her teeth, so that eating is a constant reminder of the assault and is painful. She told the court that the social and psychological effects were continuing. Both victims were forced to move back with their families.

As a result of investigation, the applicant was identified. When he was first spoken to by police he denied the offences, but subsequently admitted them and pleaded guilty to the two offences in the Local Court.

The applicant gave evidence in the sentence proceedings. Her Honour allowed a 25% discount for his early plea of guilty. Before dealing with sentencing principles, her Honour resolved some issues of fact. Her Honour rejected a suggestion by the Crown that there was a sexual element in the offending. Having done so, her Honour observed:

In relation to planning, her Honour found:

Her Honour went on to observe:

Having referred to the contents of the victim impact statements, her Honour took them into account when assessing the objective seriousness of the offending as follows:

Her Honour referred to the applicant’s subjective case as follows:

Her Honour noted:

I interpolate that this concession by the applicant’s legal representative at this point was unfortunate. As is made clear by a reading of Dr Westmore’s report and as her Honour made clear subsequently in her sentence judgment, there was a causal connection found by Dr Westmore between the applicant’s mental state and the commission of the offence although that of itself was not a full explanation. Neither Dr Westmore nor the applicant could fully explain why he committed these offences. That having been said, it is of no assistance to the applicant in this appeal and has properly not been relied upon by his counsel, since the point was expressly abandoned in the sentence proceedings. Her Honour cannot be said to have erred in not taking into account a matter which was given up in submissions.

Her Honour said:

Her Honour then referred to a pharmacological report by Professor Arnold, the effect of which was that there was no evidence that these supplements improved weight loss or muscle development and there was no evidence of them being harmful, although there was anecdotal evidence to that effect. Her Honour noted Professor Arnold’s conclusion as follows:

Her Honour expressed her findings in relation to remorse and rehabilitation as follows:

Her Honour set out other aspects of the applicant’s subjective case as follows:

Her Honour assessed the objective seriousness of these offences as “objectively placed higher than mid-range seriousness”. Her Honour considered the protection of the community from the applicant as an important consideration as was denunciation so as to recognise the harm done to the victims and to the community as a result of his offending. Her Honour then proceeded to sentence.

There was before her Honour a statistical summary of 70 cases involving offences contrary to s 33(1)(b) of the Crimes Act 1900 extending from 2004 until 2015. The summaries included the following information: the name and citation of the case, the offence or offences, the original sentence, the result of the appeal, where a weapon was used the nature of the weapon and a five to ten line summary of the facts of the case. Of those 70 cases, the sentence passed by her Honour in this case was equal to the highest sentence imposed.

The cases where similar sentences were imposed were:

The applicant submitted that there was no basis for her Honour making such a finding, particularly when the finding was expressed as there being “no doubt” as to that state of affairs existing. The applicant submitted that neither victim had said anything in their victim impact statements about having such a fear. The applicant submitted that this finding must have played some part in her Honour’s reasoning towards sentence, otherwise she would not have said anything about it. The applicant submitted that in the circumstances this observation by her Honour was an irrelevant consideration and amounted to an error which required re-sentencing.

I agree that there was no factual basis for her Honour making that observation. There could, however, have been no objection to it had her Honour expressed herself in terms of “likelihood” or “probability”. That having been said, it is not at all clear that the observation had any effect on the sentence ultimately imposed. Her Honour made the observation on one occasion, early in her sentence judgment, in circumstances where she was in effect excluding an earlier Crown submission that there was a sexual motivation. It was at most an incorrect observation on a peripheral issue. It follows that I am not persuaded that error requiring re-sentence has occurred.

The applicant submitted that the Crown in the sentence proceedings had accepted that his lack of criminal record and good character were mitigating factors on sentence (s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999). He submitted that this was confirmed by the opinion of Dr Westmore which was accepted by her Honour, that the offences were uncharacteristic and aberrant. In that regard, the applicant relied upon Regina v Darrell Terry McNaughton [2006] NSWCCA 242; 66 NSWLR 566 where Spigelman CJ said:

The applicant also relied upon the observation of McHugh J in Ryan v R [2001] HCA 21; 206 CLR 267 at [29]:

The applicant submitted that her Honour should have taken into account the “out of character” nature of the offending and his previous good character as positive mitigating factors as well as matters to be taken into account when assessing his risk of re-offending and prospects of rehabilitation in the context of the protection of the public.

A ground of appeal expressed in terms of “failing to properly take into account” implicitly concedes that a particular factor was taken into account but challenges the exercise of discretion on the part of the sentencing judge. In this case, however, there is more to the complaint. The applicant submits that her Honour should not have restricted her consideration of that issue only in the context of rehabilitation and risk of re-offending, but that it had a wider application. There is no such qualification to its use as a mitigating factor in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999.

There is considerable force in this aspect of the ground of appeal which feeds into Ground 5. It follows that her Honour did fail to give full and proper effect to what was an unchallenged mitigating factor.

In Ground 3, the applicant challenged her Honour’s mode of reasoning and her ultimate finding that at best the applicant’s prospects of rehabilitation were “long term”, i.e. guarded. The applicant submitted that her Honour should have had regard to the opinion of Dr Westmore that this offending was out of character, that his prospects of rehabilitation were good and that there was a low chance of him re-offending. He submitted that her Honour should have taken into account his lack of prior convictions and prior good character and the support of his family, particularly his father. There was also his expressed willingness to undertake courses and therapy to better understand what he had done and why. The applicant submitted that her Honour had made no mention of those matters and did not appear to have taken them into account.

The applicant submitted that her Honour’s reasoning had focused entirely upon his inability to explain why he had committed the offences. Her reasoning was that if he could not explain why these offences had occurred, then they might occur again in the future. The applicant submitted that this line of reasoning placed too much weight on his lack of an explanation and disregarded the other positive matters which had been put to her Honour and in particular, the opinion of Dr Westmore.

There is no doubt that her Honour was conscious of the matters to which the applicant refers because she dealt with them in her judgment. Her conclusion, while not favouring the applicant, was open to her given the “unknown factors” relating to the applicant’s motivation for the offending. This ground of appeal has not been made out.

The applicant submitted that her Honour’s approach to remorse appears to have conflated the question of his remorse with whether or not he was able to explain why he committed the offences. He submitted that the evidence established that despite him not being able to satisfactorily explain why he committed the offences, he was remorseful for what he had done. He had fully accepted responsibility for his actions and he acknowledged the injury that his actions had caused. It was never suggested by the Crown in its case on sentence that he was not genuinely remorseful. The applicant was not cross-examined to that effect.

The applicant submitted that her Honour’s finding that he “has expressed remorse as best he is able at the moment” did not go so far as to reveal how her Honour intended to take his remorse into account in determining the appropriate sentences. He submitted that her Honour’s other observations about his lack of insight suggests that she did not take his remorse into account as a mitigating factor pursuant to s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999.

This ground of appeal is made out. The applicant’s submission that her Honour did conflate the two concepts is correct. I can see no necessary contradiction between an offender being unable to explain why he offended and yet still being genuinely sorry for what he or she had done and in particular, for the harm which he or she may have caused the victims. While her Honour was not necessarily bound by any concessions by the Crown, it is of significance that the Crown accepted that the applicant was genuinely remorseful.

The applicant submitted that when one takes into account the starting point for each sentence before the 25% percent discount, their excessive nature becomes clear. In the case of the enter with intent offence, the starting point was imprisonment for 9 years and 4 months against a maximum penalty of 14 years. With the cause grievous bodily harm with intent offence, the starting point was imprisonment for 16 years against a maximum penalty of 25 years. In that offence the non-parole period imposed was one of 8 years and 9 months against a standard non-parole period of 7 years.

The applicant submitted that the sentencing statistics reveal that the individual sentences imposed on the applicant were at the very top of the reported range. In relation to the offence of enter with intent, the statistics for the period June 2008 until June 2015 reveal that during that period 155 offenders received terms of fulltime imprisonment for that offence. Out of those 155 only the applicant received a sentence of 7 years imprisonment or longer. Three offenders received sentences of 6 years, two received sentences of 5 years and the remaining 149 received sentences of less than 5 years.

For the offence of cause grievous bodily harm with intent, the statistics maintained for the same period reveal that 126 offenders received terms of fulltime imprisonment. Out of those 126, only 5 including the applicant, received a sentence of 12 years. There was no sentence higher than 12 years.

The applicant submitted that while his offending was objectively serious criminal conduct, and deserved sentences that reflected that fact, there were a number of mitigating factors present.

The applicant submitted that given this combination of factors in mitigation, the fact that the sentences imposed on him were at the very top of the reported range was unreasonable and plainly unjust.

To succeed on this ground the applicant must demonstrate that the sentence was “unreasonable or plainly unjust” (Dinsdale v R [2000] HCA 54; 202 CLR 321 at [325]; Makarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]). This is to be established in the context where there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Makarian at [27).

It is not sufficient that this Court might have exercised the sentencing discretion in a manner different to the manner in which the sentencing judge exercised her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15].

There is no doubt that the objective seriousness of the offending was substantial. There was a high degree of violence, the offences were unprovoked and the consequences for the victims serious. In the circumstances her Honour’s finding that the objective seriousness of the offending was above the mid-range of objective seriousness was open to her. General and personal deterrence were of high importance.

This Court has consistently recognised the limitations of statistics. At best, they are a blunt tool when considering sentencing patterns. Nevertheless they are of some value. In Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

The plurality went on to say in relation to questions of manifest inadequacy or manifest excess:

Leaving aside the errors identified in Grounds 2 and 4, I have concluded that the sentences imposed here were manifestly excessive. In reaching that conclusion, I have essentially based it on the last kind of error referred to in House v R [1936] HCA 40; 55 CLR 499 at 505.

As was indicated in the applicant’s submissions in respect of Ground 5, the starting point for the head sentences before the 25% discount for an early plea was respectively 9 years and 4 months and 16 years. By inference the instinctive synthesis process by which her Honour arrived at those starting points must also have taken into account the mitigating factors identified in those earlier grounds of appeal, i.e. lack of prior offending and previous good character, together with genuine remorse. In other words, the starting point for those sentences must have been higher than that produced by a mere adding on of the 25% discount. This is a further indication of excess, although the precise nature of the error cannot be determined.

Even allowing for the relatively blunt nature of statistics, the fact that these sentences were at the very top of those passed over the last 8 -10 years, while not decisive, is relevant and important.

It follows that these sentences are plainly unreasonable and unjust and therefore manifestly excessive. It is necessary for the applicant to be re-sentenced (Kentwell v The Queen [2014] HCA 37; 252 CLR 601).

There was no additional material placed before the Court speaking to the applicant’s time in custody between the date of sentencing and the present time. The circumstances of the offending and the mitigating circumstances have been set out earlier in this judgment. By reference to those matters in the re-exercise of the sentencing discretion, I would impose the following sentences. In respect of offence one – the enter with intent to commit a serious indictable offence – I would impose a sentence of imprisonment with a non-parole period of 4 years and 6 months, with a balance of term of 1 year and 6 months.

For the offence of cause grievous bodily harm with intent to cause grievous bodily harm, I would impose a sentence of imprisonment with a non-parole period of 7 years and 3 months, with a balance of term of 2 years and 6 months.

The effective sentence would therefore be a sentence of imprisonment for 10 years and 9 months with a non-parole period of 8 years and 3 months.

Accordingly, the orders which I propose are:

CAMPBELL J: I agree with Hoeben CJ at CL.

BUTTON J: I agree with Hoeben CJ at CL.