Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Holloway v Regina [2011] NSWCCA 23
• Hearing dates: Thursday 25 November 2010
• Decision date: 28 February 2011
• Before: James J; Hall J; Price J

Decision

(1) Leave to proceed on the notice of application for leave to appeal filed out of time on 19 August 2010 be granted.

(2) Leave to appeal granted.

(3) Appeal be dismissed.

• Catchwords: APPEAL OUT OF TIME - guilty plea not entered at earliest opportunity - 15% discount reasonable for seriousness of offence - no finding in favour of rehabilitation - aggravation for being on conditional liberty - racially motivated assaults - strong deterrence - general and specific deterrence - longer than normal parole to enhance rehabilitation - violent offences part of one course of conduct - concurrent - drug offences separate - new provisions of s 35 Crimes Act 1900 are new offences - error regarding non-parole period not material - offences not manifestly excessive
• Legislation Cited: Crimes Act 1900; Crimes Amendment Act 2007; Crimes (Sentencing Procedure) Act 1999; Drug Misuse and Trafficking Act 1985
• Cases Cited: Regina v Borkowski [2009] NSWCCA 102; Regina v Harmouche (2005) 158 A Crim R 357
• Category: Principal judgment
• Parties: WARREN HOLLOWAY v REGINA
• Representation: Counsel: C: F Veltro; A: W Hunt; Solicitors: C: S Kavanagh; A: S E O'Connor
• File Number(s): 2008/11482

Decision under appeal

• Date of Decision: 2009-08-21 00:00:00
• Before: English DCJ
• File Number(s): 2008/11482

Judgment

1 JAMES J : I agree with Hall J.

2 HALL J : The applicant, by notice of appeal dated 18 August 2010, seeks leave to appeal against an aggregate sentence imposed by the Penrith District Court on 21 August 2009.

3 At the hearing, Mr W Hunt of counsel, who appeared on behalf of the applicant, sought leave to appeal out of time, the notice of appeal having been filed on 19 August 2010. The Crown did not oppose the grant of leave. In those circumstances, leave as sought will be granted to bring the application out of time.

4 On 4 December 2008, the applicant pleaded guilty on arraignment at Penrith District Court to a number of offences as follows:-

(1) On 23 April 2007 - knowingly take part in the cultivation of a prohibited plant by enhanced indoor means, namely cannabis, in an amount not less than the commercial quantity, contrary to section 23(2)(a) of the Drug (Misuse and Trafficking) Act 1985. (Maximum penalty: 15 years imprisonment and/or a fine of up to $385,000).

In respect to this offence the Judge imposed a sentence comprising of a non parole period of one year to date from 13 July 2009 and expiring on 12 July 2010 with a balance of term of 18 months and 12 days expiring on 30 January 2012.

(2) On 26 August 2007 - malicious wounding in company, contrary to section 35(2) of the Crimes Act 1900. (Maximum penalty: 10 years imprisonment). It should be noted that the applicant pleaded not guilty to a charge of malicious wounding with intent to do grievous bodily harm under section 33 of the Crimes Act 1900. The plea to the alternative charge was accepted by the Crown in full satisfaction.

In respect to this offence the Judge imposed a sentence comprising of a non parole period of 2 years to date from 13 July 2010 and expiring on 12 July 2012 with a balance of term of 2 years 3 months expiring on 12 October 2014.

(3) On 26 August 2007 - assault occasioning actual bodily harm in company, contrary to section 59(2) of the Crimes Act 1900. (Maximum penalty: 7 years imprisonment).

In respect to this offence the Judge imposed a sentence comprising a non parole period of one year commencing on 13 July 2010 and expiring on 12 July 2011 with a balance of term of 8 months and 11 days expiring on 24 March 2012.

5 The aggregate sentence comprised a non-parole period of three years (commencing on 13 July 2009 and expiring on 12 July 2012) with a balance of two years and three months to expire on 12 October 2014.

6 The applicant was first arrested and interviewed in respect of the drug offence on 1 June 2007. He was granted conditional bail on that date requiring him to report daily to police and to reside at a nominated address.

7 On 18 August 2007, the applicant failed to report to Blacktown Police Station in accordance with his bail conditions. He reported the following day at 11.50 pm and was arrested for breach of bail.

8 On 20 August 2007, he appeared at the Blacktown Local Court in respect of the breach of bail. Bail was ordered to continue.

9 Whilst on bail, he committed the abovementioned violence related offences on 26 August 2007. He was arrested in respect of those offences on 11 April 2008.

10 At the sentencing hearing, the sentencing judge proceeded upon the basis of a statement of facts for the drug offence (Exhibit A-2) and a statement of facts relating to the two violence related offences (Exhibit B-2). The statements were tendered without objection.

11 The relevant factual matters were conveniently set out in the Crown's written submissions. The Crown's summary was not challenged and I reproduce the same below:-

" The drug offence

6. On 23 April 2007, a number of Sheriff officers attended residential premises situated at 24 Stuart Mould Crescent, Lalor Park in order to execute a writ of possession. The premises were a single story [sic] fibro and tiled dwelling in a residential area which appeared to be a typical family home comprising three bedroom, a kitchen, a bathroom and a garage. Upon entering the premises the officers observed a large number of cannabis plants being cultivated in both the house and garage.

7. Police were contacted and later that afternoon executed a search warrant at those premises. Police found that the house and garage had been converted into a sophisticated indoor cannabis cultivation operation.

8. Inside the house police found 31 plants (each about 50 cm high). Each plant had been placed into a separate pot. Above each pot were two lamps with reflectors and 600 watt globes that were powered by transformers and automatic timers. A watering system involving a 20 litre drum and an air filtering system comprising a charcoal filter cartridge, exhaust fans and ducting which was designed to eliminate odour, were operational at the time. The walls had been lined with plastic sheeting.

9. A further 45 plants (each about 90 cm high) were found inside the adjacent garage. Each plant had been placed into a separate pot. Police also observed lamps with 600 watt globes, reflectors, transformers and automatic timers and four exhaust fans which had been placed into the ceiling. Also found was a 40 litre wast bin containing a water solution and a 3 litre bucket providing nutrients to the plants.

10. In the main bedroom of the house police located a mobile phone connected to a charger, which had been placed on the floor next to a sleeping bag. A wallet containing a drivers' [sic] license [sic] Medicare cards, and other personal papers in the name of the applicant was [sic] also found in the room.

11. Photographs of the premises were tendered on sentence and marked as exhibit A-6.

12. The applicant was arrested and interviewed by police on 1 June 2007, (exhibit A-8). He denied ever being inside the premises at Lalor Park and gave no explanation as to how some of his property came to be there. He consented to a forensic procedure being conducted. Subsequent forensic examination of property taken from the premises revealed the applicant's DNA on a cigarette butt found in the dining room of the premises. The applicant's fingerprints were also located in the dining room. Two picture frames depicting the names of the two children of the applicant in Chinese characters were located on the wall in the main bedroom.

13. A total number of 76 plans were seized from the premises. The prescribed commercial quantity of plants cultivated by enhanced indoor means is 50 plants.

14. Court Attendance Notices (CANs) were created on 7 May 2007, and filed in Court on 8 May 2007, however because Police was unable to locate the applicant, the CANs were not served. A warrant was subsequently issued and executed on 1 June 2007, on which date the applicant was arrested and interviewed in relation to the drug matter. Conditional bail was granted at that time ...

The violence offences

15. On Sunday 26 August 2007, Agar Maisang (then 23 years old) and Aziz Agarouf (then 30 years old) were at Mr Agarouf's house at Marayong. At about 9.30 pm, the two victims walked to Marayong Railway Station so that Mr Maisang could catch a train back to his home in Newcastle.

16. On their way to the railway station they passed a hotel, situated across the road from the railway station, where the applicant and other persons were drinking. The applicant and others called out to Mr Maisang and Mr Agarouf. The victims ignored the comments and continued to walk to the Railway Station. The applicant, a co-offender by the name of Michael Hulm and a third unidentified offender followed the victims to the railway station. The applicant and Mr Hulm were each carrying schooner glasses at the time. The applicant commenced swearing and making racist comments at the victims. These comments involved the victims being told to 'go home' and being called a 'fucking black cunt' and 'black bastard' (Exhibit B5, page 5 & B6, page 6). The applicant then approached Mr Agarouf and punched him to the face with this left fist. In self defence, Mr Agarouf punched the applicant back causing the applicant to stumble backwards.

17. During this altercation Mr Agarouf's hat fell onto the ground. The applicant walked towards Mr Agarouf and picked up the hat. As Mr Agarouf moved towards the applicant to retrieve his hat, the applicant hit him in the face with the schooner glass which broke on impact. This caused a large laceration to Mr Agarouf's face which began immediately bleeding and also broke a tooth. Mr Agarouf ran from the platform towards the overhead concourse and was pursued by the applicant who was still holding the broken glass and cap.

18. At this point Mr Hulm intervened, grabbed Mr Agarouf by the jacket and attempted to lead him back down the stairs towards the applicant. Mr Agarouf and Mr Hulm engaged in a struggle during which Mr Hulm dropped the glass he was carrying. He managed to break free from Mr Hulm and ran across the concourse, down the staircase and onto the roadway. He was pursued for a short distance by the applicant and Mr Hulm.

19. The applicant and Mr Hulm then returned to the railway concourse and proceeded to platform one where they approached Mr Maisang. The applicant walked up to Mr Maisang and punched him in the face with a closed fist causing him to fall backwards. Mr Hulm prevented Mr Maisang from getting away whilst the applicant punched him to the face a second time. The applicant then started wrestling with Mr Maisang on the platform. At the time a number of other commuters were on the platform. At one point the applicant pushed Mr Maisang onto the railway tracks and then prevented him from getting back on to the platform. The applicant then also jumped onto the railway tracks and continued to assault Mr Maisang while Mr Hulm remained on the platform. After a while, the applicant climbed back onto the platform and left with Mr Hulm.

20. Mr Maisang eventually climbed back onto the platform and thereafter Mr Maisang and Mr Agarouf contacted the police by calling 000.

21. They were both taken to Blacktown hospital where they were treated for their injuries. The large laceration sustained by Mr Agarouf to his face required suturing. He also sustained lacerations to his mouth, face and a broken tooth. Mr Maisang also sustained bruising and swelling to his face and a laceration to his eye. Photographs of the injuries sustained by the victims were tendered on sentence and marked as Exhibit B-11.

22. The incident was captured on CCTV. Photographic stills from the CCTV were tendered on sentence and marked as Exhibit B-8.

23. The co-offender, Michael Hulm, was arrested on 1 December 2008. On 26 June 2009 at Penrith Local Court, he was [sic] pleaded guilty and was sentenced in respect to the following offences:

· assault occasioning actual bodily harm in company: imprisonment for 15 months with a non-parole period of 8 months

· endanger safety of person on railway: imprisonment for 18 months with a non-parole period of 12 months

· affray: imprisonment for 15 months with a non-parole period of 8 months

24. Following a severity appeal to Parramatta District Court on 2 September 2009, Hulm was re-sentenced by North DCJ as follows:-

· assault occasioning actual bodily harm in company: imprisonment for 15 months suspended pursuant to s.12 Crimes (Sentencing Procedure) Act 1999

· endanger safety of person on railway: imprisonment for 18 months suspended pursuant to s.12 Crimes (Sentencing Procedure) Act 1999

· affray: Community Service Order for 200 hours."

The sentencing hearing

12 A pre-sentence report was tendered at the hearing (Exhibit C). The evidence tendered on behalf of the applicant consisted of a psychologist's report by Ms Mary Anderson dated 23 February 2010 (Exhibit 1). The applicant did not give evidence at the hearing.

Offences and sentences imposed

13 Particulars of the offences charged and sentences imposed are set out above. By way of summary, the applicant was sentenced in respect of three counts, namely:-

(1) Count 1: Section 23(2)(a) of the Drug Misuse and Trafficking Act 1985 - total term of 2 years, 6 months and 18 days with a non-parole period of 1 year to date from 13 July 2009 (maximum penalty 15 years imprisonment and/or $385,000 fine).

(2) Count 2: Section 35(2) of the Crimes Act 1900 (maliciously wound in company) - total term of 4 years and 3 months with a non-parole period of 2 years to date from 13 July 2010 (maximum penalty 10 years imprisonment; prescribed standard non-parole period 4 years).

(3) Count 3: Section 59(2) of the Crimes Act 1900 (assault occasioning actual bodily harm in company) - total term of 1 year, 8 months and 11 days with a non-parole period of 1 year to date from 13 July 2010 (this sentence was wholly concurrent with the sentence in respect of Count 2) (maximum penalty 7 years imprisonment).

14 The sentencing judge then set out the facts and circumstances giving rise to each of the offences.

15 In relation to the drug offence, the sentencing judge noted:-

(1) That the offence of knowingly taking part in the cultivation of a commercial quantity of cannabis plants by enhanced indoor means is an objectively serious offence as reflected in the maximum penalty for such an offence of 15 years' imprisonment and/or the substantial fine which may be imposed.

(2) On the established facts, the operation was a sophisticated one. In particular, in the bedroom there were 31 cannabis plants growing, each having an individual pot. There were two reflectors fitted with 600 watt globes powered by transformers and automatic timing devices. Water and nutrients were also readily available.

(3) The front section of the garage had been converted for the cultivation of more cannabis plants and 45 plants were located in individual pots and associated equipment found in the garage.

(4) The sentencing judge noted that the Crown case was "... that this offender was engaged in babysitting the plants, acting in effect as a watchman or as security to prevent unauthorised entry to the premises. It is not the Crown case that he was more actively involved in the cultivation process" (Remarks on Sentence, p. 11).

(5) The applicant's case was that he had only been in the premises for a short period of time because he was homeless. However, the sentencing judge stated that this was not borne out by the facts stating:-

"He was clearly more than just a squatter in the premises, he had made himself at home and surrounded himself with personal items, such as framed artwork depicting the names of his children. He was using not only a bedroom where his personal items were located but also the dining room and the lounge room. ... The rooms demonstrate an air of permanency rather than someone merely staying for a few days."

(6) The sentencing judge noted there was no evidence to enable a finding to be made that the applicant was to be paid for his role. However, his presence, her Honour found, facilitated the offence being committed which was the extent of his criminality.

16 In relation to the violence offences, the sentencing judge noted:-

(1) That they were objectively very serious offences. In this respect, her Honour referred to the various assaults and attacks made by the applicant upon the victim including, in particular, the assault involving severe impact with the glass which the applicant used in the attack causing significant lacerations. It was noted that, following the imposition of serious injury on the victim, the applicant then pursued him. Fortunately, the victim was able to break free and flee.

(2) The sentencing judge noted that, as a consequence of the attack, the victim, Mr Agarouf, sustained a large laceration to the left side of his mouth and that the laceration required suturing. He also sustained some small lacerations around his mouth and face and a broken tooth. The other victim, Mr Masiang, sustained bruising, swelling and a laceration to his eye.

(3) The offender and his co-offender returned to the station and approached Mr Masiang. The applicant walked up to him and punched him to the face with a clenched fist causing the victim to fall backwards. The applicant again punched him again to the face again with a clenched fist. The co-offender stood in front of the victim, preventing him from escaping the assault upon him. The victim was then pushed onto the railway tracks by the applicant. He was prevented by the applicant and his co-offender from moving out of the path of any oncoming train, although no train was actually present at the time. The applicant and his co-offender taunted Mr Masiang and the applicant again assaulted him with his fists causing the victim further pain.

Sentencing judge's findings and conclusions

17 Mr Masiang sustained lacerations to his eyes and bruising and swelling to his face. The sentencing judge accurately described all of the assaults as "... vicious assaults without provocation" (Remarks on Sentence, p.13).

18 Her Honour determined that the pleas entered by the applicant were not entered at the earliest opportunity. The applicant was allowed a 15% discount on sentence by reason of the fact that the pleas were said to have utilitarian value and demonstrated contrition. However, the sentencing judge determined "... I am not prepared to find he is truly remorseful or contrite, other than to the extent that his pleas demonstrate some contrition" (Remarks on Sentence, p.14).

19 Whilst the offender had had a number of criminal offences dating back to 1989, the subject offences were the most serious offences that had been committed by him.

20 The assaults, the sentencing judge determined, were "... racially motivated, as evidenced by the victims, rather than the reverse, which has been suggested by the offender. Both victims were vulnerable, making their way to a railway station late at night in anticipation of using public transport" (Remarks on Sentence, p.14).

21 One circumstance that was relied upon as mitigating the offences was said to include the fact that no weapon had been used in the assault occasioning actual bodily harm.

Applicant's subjective factors

22 So far as the subjective circumstances were concerned, the sentencing judge noted that the applicant, then 36 years of age, was of Aboriginal heritage. He had grown up in Quakers Hill and attended Blacktown Boys' High School until Year 11. He left school at that stage to work for his father in tree-lopping. The applicant's parents separated when he was in his teens. It was said that this adversely affected his school performance which, prior to then, had been good.

23 The applicant married at 26 years of age and has two children. His marriage broke down due to his drinking and gambling. Following the closure of his father's tree-lopping business, the applicant found difficulty finding work. He lived with his mother and had access to his children every second weekend.

24 On psychological testing, he was said to have been of average intelligence with sound literacy and numeracy skills. He was assessed as being capable of re-training and gaining employment.

25 He had had a falling out with his mother and was said to be homeless and was seeking alternative accommodation. He had been offered a place to stay by a friend whom he had met at a hotel. He said he was only at the house a few days, living in a section of it when Sheriff's Officers arrived to execute a writ of possession under a mortgage.

26 So far as the violence offences were concerned, he informed the psychologist that he had been to a rugby league match and had been drinking all day and had also taken illicit substances.

27 In the opinion of Ms Anderson, he was unaware of the cumulative effect of using amphetamines over time, nor had he reflected upon his abuse of alcohol and the impact it had had on his life. He admitted to getting into fights after having consumed alcohol. He had not sought assistance in addressing the problems that he had with drugs or alcohol. The psychologist expressed the opinion that he needed a comprehensive drug and alcohol rehabilitation programme.

28 In the Probation and Parole report concern was expressed that the applicant was yet to demonstrate any insight into his "problematic behaviour" or the need for change. The pre-sentence report stated that the applicant "denies involvement as prescribed by police facts. He denied benefiting from the cultivation" .

29 The applicant's prospects of rehabilitation were assessed as "guarded" unless or until he was prepared to fully commit to resolving issues which flowed from his childhood, his relationship with his father, his failed marriage and his abuse of drugs and alcohol.

30 The sentencing judge noted that the likelihood of him re-offending was largely dependent upon his ability to remain drug and alcohol-free and he resisted negative peers. Ultimately, her Honour stated that she could make no finding in his favour on the question of rehabilitation.

31 The applicant's criminal antecedents, the sentencing judge observed, disentitled him to leniency (Remarks on Sentence, p.14).

The issues of special and general deterrence

32 The violence offences, on the sentencing judge's findings, were not only vicious assaults, but they were also racially motivated. In any multi-cultural society, criminal acts involving racial violence ought to be strongly deterred and this fact taken into account in a case such as the present when sentencing an offender in respect of such conduct: Crimes (Sentencing Procedure) Act 1999, s.21A(2)(h).

33 In determining sentence, the sentencing judge noted the need for both general and specific deterrence to be taken into account and in that regard stated that only a full-time custodial sentence was appropriate.

34 In respect of the assault occasioning actual bodily harm, the sentencing judge stated that she assessed the offence as one falling within the mid-range of objective seriousness. The additional factors of aggravation were that the offender was on conditional liberty at the time, that the offence was racially motivated and the victim was vulnerable at the time.

35 The sentencing judge found special circumstances on the basis that the applicant would be serving a lengthy custody sentence for the first time.

36 The structuring of the sentences provided for partial accumulation of the sentences, particulars of which have been set out above. The sentencing judge noted that there was a need for a longer than normal period of supervised parole to enhance the applicant's prospects for rehabilitation. Her Honour also noted that the drug matter and the violence matters were separate and distinct offences and that having regard to the principles of totality, it was appropriate that the offender serve at least a portion of the sentence to be imposed for the drug offences before the operation of sentences in respect of the violence offences. However, it was noted that the latter offences were part of one course of conduct and that the sentences would be concurrent.

Grounds of appeal

37 The applicant relied upon four grounds of appeal:-

"1. The learned sentencing judge erred in the finding that the circumstances of the violence offences were aggravated by the applicant being on conditional liberty at the time those offences were committed.

2. The learned sentencing judge erred in properly applying the sentencing discount available as a result of the plea of guilty to the malicious wounding offence.

3. The learned sentencing judge erred in applying the standard non-parole period (4 years) to the malicious wounding offence.

4. The sentence was manifestly excessive."

38 I deal separately with each ground below:-

Ground 1: The learned sentencing judge erred in the finding that the circumstances of the violence offences were aggravated by the applicant being on conditional liberty at the time those offences were committed

39 In the written submissions for the applicant, it was stated that the applicant's counsel at the sentencing hearing in his submissions referred to the applicant as having committed the violence offences "whilst on bail for the drug matters" , being an aggravating circumstance of the offence in terms of s.21A(2)(j) of the Crimes (Sentencing Procedure) Act .

40 It was said that this submission was not factually correct and was expressly corrected by the Crown (transcript, 5 June 2009, p.15).

41 On that basis, it was contended that, notwithstanding the correction, in handing down sentence on the violence matters, the sentencing judge expressly identified the applicant's conditional liberty at the time of committing those offences as being an aggravating feature.

42 It was contended that the sentencing judge must have increased the sentences which she imposed upon the applicant for the violence offences by virtue of what was said to be an error of fact.

43 The Crown, in response, stated that the applicant breached one of the bail conditions imposed in respect of the drug offence by failing to report to Blacktown Police Station on 18 August 2007. He was arrested on 19 August 2007 for breach of bail. He spent one night in custody. The following day he appeared at Blacktown Local Court. Bail was ordered to continue.

44 Accordingly, at the time the applicant committed the violence offences, the Crown submitted the applicant was still on bail for the drug offence. Accordingly, in those circumstances, the sentencing judge, it contended, did not err in finding that the violence offences were aggravated on the basis that the applicant was on conditional liberty at the time they were committed.

45 On the basis of the relevant events, it is clear that the applicant was on conditional bail at the time of the violence offences. There is, accordingly, no basis for Ground 1. Mr Hunt of counsel, who appeared on the hearing of the present application, properly acknowledged the Crown's submissions as accurate and, accordingly, did not press the ground. Accordingly, Ground 1 should be dismissed.

Ground 2: The learned sentencing judge erred in properly applying the sentencing discount available as a result of the plea of guilty to the malicious wounding offence

46 This ground of appeal about the malicious wounding offence was argued upon the basis of the following statements by the sentencing judge (Remarks on Sentence, p.15):-

"Had the matter proceeded to trial, I would have imposed a head sentence in the order of four years' imprisonment."

47 The submissions on behalf of the applicant noted that the applicant entered a plea of guilty to all offences on arraignment on 4 December 2008 at Penrith District Court. The sentencing judge appeared to allow a discount of 15% in respect of each of his pleas which, it was stated, was the most favourable finding available to the applicant in light of the decision of this Court in Regina v Borkowski [2009] NSWCCA 102 per Howie J (with whom McClellan CJ at CL and Simpson J agreed) at [31].

48 However, on behalf of the applicant it was argued that, the sentencing judge did not seem to actually apply any sentencing discount to the total term imposed in respect of the malicious wounding in company offence. In assessing the objective seriousness of that offence, it was noted her Honour stated (Remarks on Sentence, p.15):-

"Had the matter proceeded to trial, I would have imposed a head sentence in the order of four years' imprisonment ... Once again, the offender is entitled to his discount of fifteen percent for his plea of guilty."

49 The sentencing judge then imposed a full term of 4 years and 3 months imprisonment in respect of the offence, being a term which was in excess of what her Honour stated she would have imposed after a trial. In these circumstances, the applicant submitted that what amounted to a sentencing error would activate the Court's discretion to re-sentence the applicant and that it would so by applying a discount of 15% to the 4 year sentence which the sentencing judge stated she would have imposed after a trial. This would result in a head sentence of 3 years and 4 months.

50 The submissions on behalf of the applicant also observed that whilst no direct correlation is possible, it was nonetheless submitted that the error by the sentencing judge in determining the full term of the offence had influenced her Honour's determination of the non-parole period in respect of that offence, contrary to the interests of the applicant.

51 In addition, it was argued on behalf of the applicant that the offence of malicious wounding under s.35(2) being the most objectively serious of the three offences before the Court, determination of the sentence in relation to that offence placed "upward pressure" on the determination of the sentences which her Honour imposed for the offences in total: Applicant's Written Submissions , paragraph 20.

52 The Crown submitted that on the basis of a head sentence of 4 years and 3 months (51 months) which in fact incorporates a 15% discount, it follows that the judge must have used a starting point of 5 years (15% of 60 being 9 months).

53 In support, the Crown referred to the fact that the sentencing judge adopted an identical approach in sentencing for the other two offences and that these reflected the nominated head sentence to be imposed after trial less than 15%. In particular, in that regard:-

(1) In respect of the drug offence, the sentencing judge nominated a head sentence to be imposed after trial of 3 years' imprisonment.

After applying the 15% discount, the sentencing judge imposed a sentence of 2 years, 6 months and 18 days.

(2) In respect of the offence of assault occasioning actual bodily harm in company (s.59(2)), the sentencing judge nominated a head sentence to be imposed after trial of 2 years' imprisonment.

After applying the 15% discount, the sentencing judge imposed a sentence of 1 year, 8 months and 11 days.

54 The Crown, accordingly, submitted:-

"45. In these circumstances, it is apparent, so it is submitted, that the reference to 'in the order of 4 years' was nothing more than a slip and should be read as 'in the order of 5 years'."

55 It is clear that the sentencing judge intended to apply the same formula or approach in applying the 15% discount for the pleas of guilty to each of the offences. As the Crown has observed, the approach is reflected in the sentences derived in respect of the drug offence and the offence of assault occasioning actual bodily harm in company.

56 The sentencing judge having made clear that that was her approach, there is, in my opinion, considerable force in the Crown's submission that the reference to 4 years was an error in the nature of a "slip" and that it is clear that the sentencing judge had intended to take as a starting point before the application of the 15% discount, a term of 5 years. The Crown's submissions on Ground 2, accordingly, in my opinion, should be accepted.

57 Her Honour made a determination that the objective seriousness of the offence was in the mid-range. In my opinion, the objective circumstances of the offence were so serious that, allowing for the discount for a plea of guilty of 15% would, in my opinion, indicate that the sentence imposed by the judge for this offence was well within the reasonable range. Even if error had been established in the basis or method for deriving the actual sentence imposed, in my opinion, any such error would not warrant the intervention of this Court.

58 Ground 2, in my opinion, should be dismissed.

Ground 3: The learned sentencing judge erred in properly applying the sentencing discount available as a result of the plea of guilty to the malicious wounding offence

59 This ground concerns an asserted error by the sentencing judge in having regard to the standard non-parole period prescribed for an offence arising under the provisions of s.35 of the Crimes Act that was enacted after the commission of the offence.

60 The provisions of s.35 of the Crimes Act which were operative as at the date of the offence were different from the equivalent provisions now to be found in what might be referred to as the "new" s.35 and which were operative as at the date of sentence, namely, on 4 December 2008. It is necessary to refer briefly to the history of the amendments in question.

61 Approximately one month following the commission of the offence, the Crimes Amendment Act 2007 amended the Crimes Act 1900 by, inter alia, replacing the former s.35.

62 The new provisions of s.35 created a series of different offences each of which had different elements and different maximum penalties.

63 The "old" s.35 was in the following terms:-

35 Malicious wounding or infliction of grievous bodily harm

(1) Whosoever maliciously by any means:-

(a) wounds any person, or

(b) inflicts grievous bodily harm upon any person,

shall be liable to imprisonment for 7 years.

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years."

64 In the circumstances of the present case, the plea of guilty entered by the applicant on 4 December 2008 was a plea to an offence of malicious wounding in company pursuant to the provisions of s.35(2) of the Crimes Act as set out above.

65 The Crimes Amendment Act repealed the former s.35 on 27 September 2007 and replaced it with the following provisions:-

"35 Reckless grievous bodily harm or wounding

(1) Reckless grievous bodily harm - in company. A person who, in the company of another person or persons, recklessly causes grievous bodily harm to any person is guilty of an offence.

Maximum penalty: Imprisonment for 14 years.

(2) Reckless grievous bodily harm. A person who recklessly causes grievous bodily harm to any person is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(3) Reckless wounding - in company. A person who, in the company of another person or persons, recklessly wounds any person is guilty of an offence.

Maximum penalty: Imprisonment for 7 years.

(4) Reckless wounding. A person who recklessly wounds any person is guilty of an offence.

Maximum penalty: Imprisonment for 7 years.

(5) Alternative verdict. If on the trial of a person charged with an offence against any subsection fo this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carried a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly."

66 The new provisions of s.35 differentiate between recklessly inflicting grievous bodily harm in company under s.35(1), which carries a maximum penalty of 14 years, and reckless wounding in company under s.35(3), which carries a maximum penalty of 10 years. The applicable standard non-parole period for the offence under the new provisions of s.35(1) is 5 years, whilst the applicable standard non-parole period for the offence under the new provisions of s.35(3) is 4 years.

67 The sentencing judge, in her remarks on sentence (p.17) proceeded upon the basis that the standard non-parole periods introduced under the new provisions operated for the purpose of sentencing the applicant. After reviewing the amendments, the sentencing judge stated:-

"... Therefore, the standard non-parole period is applicable in my consideration of the penalties to be imposed, bearing in mind that I have found the offence to be one falling at the mid-range of objective seriousness, although there has been a plea of guilty and that is something which can be taken into account in the offender's favour in accordance with the principles in R v Way . The standard non-parole period remains relevant as a guide mark or bench post."

68 In the written submissions on behalf of the applicant, the Mr Hunt of counsel submitted:-

"28. The learned sentencing judge correctly identified that the standard non-parole periods introduced on 1 January 2008 by the Crimes (Sentencing Procedure) Amendment Act 2007 can apply, by virtue of s.57 of Schedule 2 to the Crimes (Sentencing Procedure) Act 1999 to offences committed before that time, notwithstanding the provisions of s.19(1) of that Act (ROS p.17). However, Her Honour erred in failing to recognise that the offence to which the SNPP of 4 years applied by virtue of Item 4B of the Table found at s.54D of that Act, was s.35(2) of the Crimes Act 1900, as amended on 27 September 2007 and not the offence to which the applicant had pleaded guilty."

69 It was further contended that the offence under the former s.35(2), being the most objectively serious of the three offences, the determination of the sentence in relation to that offence placed upward pressure on the determination of the sentences which the sentencing judge imposed for the offences in total: Applicant's written submissions , paragraph [31].

70 In respect of the applicant's offence under s.35(2) to which he pleaded guilty on 4 December 2008, it was submitted:-

"22. ... Although s.35(2) of that Act also applied to the infliction of grievous bodily harm, this was not asserted in respect of the applicant and the learned sentencing judge found that the injuries inflicted upon the victim of the malicious wounding offence were not substantial (ROS p.14).": Applicant's Written Submissions, paragraph 22

71 The submissions for the applicant correctly emphasised that the offences created by the new provisions of s.35 were new offences and were not merely amendments to the existing provisions of s.35 of the Crimes Act , a fact evident from a reading of the provisions themselves. It was submitted for the applicant that her Honour erred in failing to recognise that the offence to which the standard non-parole period of 4 years applied by virtue of Item 4B of the Table found at s.54D of that Act, was s.35(2) of the Crimes Act , as amended on 27 September 2007 and not the offence to which the applicant had pleaded guilty.

72 In his oral submissions, Mr Hunt, in relation to the erroneous reference to the standard non-parole period, contended (transcript, 25 November 2010 p.3):-

"Having said that and a patent error is established, it becomes really some exercise in speculation to work out what it was that her Honour did or didn't do relevant to the standard non-parole period except to say this, that in the particular circumstances of this particular matter, where her Honour made a finding that the offending was in the mid-range, albeit subject to a plea of guilty, it's quite available to the applicant in my submission to properly contend that the misperception that a standard non-parole period applied must have had an effect on the sentence imposed and must have had an effect on their sentence to obviously make it more punitive than it otherwise would have been."

73 An examination of the remarks on sentence, in my opinion, indicates that the sentence imposed by the sentencing judge was based upon her specific findings in relation to the relevant objective and mitigating factors. In particular, the sentencing judge identified specific matters in support of her earlier discussion and description of the offences of violence as "... obviously objectively very serious offences indeed" (Remarks on Sentence, p.12). The matters identified in relation to offences under s.35(2) were described by her Honour in the following terms:-

"Mr Agarouf felt uncomfortable about the offender's behaviour so he left the bench seat and walked to the edge of the railway platform. At that time, Mr Holloway and Mr Hulm were each carrying a schooner their hands. The offender followed Mr Agarouf and punched him to the face with his left fist. Mr Agarouf attempted to defend himself and punched the offender in the face. This caused the offender to stumble backwards and fall. The offender got to his feet and moved towards Mr Agarouf, who was by then walking backwards and away from the offender. During the initial altercation, Mr Agarouf's baseball cap fell from his head. The offender picked up the hat in his right hand and carried the schooner glass in his left hand. Mr Agarouf moved towards the offender to retrieve his hat. The offender then put the schooner in his right hand and the hat in his left hand. The offender then punched Agarouf in the face with the schooner glass. This caused immediate pain to Mr Agarouf and it caused a large laceration to his mouth; the laceration bled freely. The impact of the schooner glass to Mr Agarouf's mouth also caused a tooth to break ..."

74 The subject offence was clearly one that called for denunciation and for appropriate allowance to be made for both general and specific deterrence. It was, as the sentencing judge noted, a case in which, given the applicant's criminal antecedents, he was not entitled to leniency.

75 It is to be noted that the non-parole period set by the sentencing judge for the malicious wounding offence, namely, a period of 2 years, was well below what her Honour erroneously considered to be the standard non-parole period of 4 years. This, in itself, indicates that her Honour's error did not have a material effect on the sentence that was imposed for this offence.

76 I am of the opinion that, notwithstanding the erroneous reference to the standard non-parole period, that the sentence imposed was well within the range for an offence of its kind and appropriately reflected the particular findings made by the sentencing judge and other matters which her Honour took into account. Given the nature and level of violence exercised in the commission of the offence, it was clearly one which warranted a substantial sentence. The sentence imposed by the sentencing judge, in my view, taking all matters into account, could be regarded as a moderate one.

77 Accordingly, in my opinion, this ground of appeal should be dismissed.

Ground 4: The sentence was manifestly excessive

78 The contention made on behalf of the applicant was that the sentencing judge found that the drug and the assault occasioning actual bodily harm offences were in the lower range of objective seriousness. Only the malicious wounding offence was in the mid-range of objective seriousness. Accordingly, that offence, it was submitted, carried particular weight in determining the sentence imposed on the applicant in terms of totality.

79 Reliance was placed upon sentencing statistics and, in particular, extracts from the Judicial Information Research System (JIRS) compiled by the Judicial Commission of NSW. I do not here need to set out the details concerning the statistics both in relation to offences under the former provisions of s.35(2) (where no standard non-parole period applied) or the statistics relating to sentencing in respect of s.35(3) offences as they currently stand where a standard non-parole period of 4 years applies.

80 In addition, some reliance was placed upon the finding made by the sentencing judge that the emotional harm and injury to the victim was not substantial.

81 The observations which I have made in relation to Ground 3 apply equally to this ground. On the basis of what I have there stated, it is not, in my opinion, possible to conclude that the sentence imposed in respect of the offence of malicious wounding was manifestly excessive.

82 The Crown, in my opinion, correctly noted not only that the sentencing judge found all three offences to be objectively serious but that, apart from the plea of guilty, there was little to mitigate any of the offences.

83 In relation to the violence offences, the Crown also emphasised the fact that they were unprovoked, racially motivated and vicious assaults committed in a public place. So far as the injuries and emotional harm were concerned, even though they were not found to have been "substantial" the Crown, nonetheless, submitted that they should be regarded as both significant and serious injuries. That submission, in my opinion, is clearly correct.

84 The fact that the violence offences were committed whilst the applicant was on bail was, in the Crown's contention, a serious aggravation of those offences and justified an increase in sentence beyond that which was otherwise appropriate. Reliance, in this respect, was placed upon the decision of this Court in Regina v Harmouche (2005) 158 A Crim R 357 at [69]. The submissions in this respect are also clearly correct.

85 The aggregate of the sentences imposed resulted in a non-parole period of 3 years, with a total term of 5 years and 3 months. Whilst reference to sentencing statistics may provide a comparative guide, it is the findings as to the objective seriousness and associated culpability of the applicant in respect of them that are determinative of the issue raised by this ground of appeal.

86 Accordingly, I am of the opinion that this ground of appeal should be dismissed.

87 I accordingly propose the following orders:-

(1) Leave to proceed on the notice of application for leave to appeal filed out of time on 19 August 2010 be granted.

(2) Leave to appeal granted.

(3) Appeal be dismissed.

88 PRICE J : I agree with Hall J.

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Decision last updated: 01 March 2011