Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Ramea v R [2013] NSWCCA 310
• Hearing dates: 25 October 2013
• Decision date: 09 December 2013
• Before: Hoeben CJ at CL at [1]; Johnson J at [2]; Latham J at [3]

Decision

Application for extension of time within which to seek leave to appeal sentence refused.

• Catchwords: CRIMINAL LAW - application for extension of time to seek leave to appeal sentence - plea of guilty - wounding with intent to cause grievous bodily harm - attack on taxi driver with glass - no explanation for delay - whether refusal of application would result in substantial injustice to applicant - whether trial judge adopted two-stage approach to sentencing and gave determinative weight to standard non-parole period - whether trial judge erred in assessment of objective gravity of offence and aggravating factors - whether sentence manifestly excessive - no Muldrock error - no failure on part of judge to take into account relevant matter - no material error in sentencing exercise - sentence not manifestly excessive - application refused
• Legislation Cited: Crimes Act 1900
• Cases Cited: Abdul v R [2013] NSWCCA 247; Aitchison v R [2012] NSWCCA 82; Aldous v R [2012] NSWCCA 153; Butler v R [2012] NSWCCA 23; Carroll v R [2012] NSWCCA 118; Markarian v The Queen [2005] HCA 25 ; 228 CLR 357; Mendes v R [2012] NSWCCA 103; Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120
• Category: Principal judgment
• Parties: Victor Ramea - (Applicant); Regina - (Crown Respondent)
• Representation: Counsel: M King - (Applicant); N Noman SC - (Crown Respondent); Solicitors: Legal Aid NSW - (Applicant); Solicitor for Public Prosecutions - (Crown Respondent)
• File Number(s): 2009/00004475

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2009-07-17 00:00:00
• Before: Conlon SC DCJ
• File Number(s): 2009/11/0197

Judgment

1 HOEBEN CJ at CL : I agree with Latham J.

2 JOHNSON J : I agree with Latham J.

3 LATHAM J : The applicant, Victor Ramea, seeks an extension of time within which to seek leave to appeal a sentence imposed upon him by Conlon SC DCJ, following a plea of guilty to wounding with intent to cause grievous bodily harm contrary to s 33 (1)(a) of the Crimes Act 1900. The offence carries a maximum penalty of 25 years and a standard non-parole period of 7 years.

4 The applicant was sentenced on 17 July 2009 to a non-parole period of 6 years with a balance of term of 3 years.

5 There has been no previous notice of intention to appeal in respect of this matter. Putting to one side the ground asserting Muldrock error (Muldrock v The Queen [2011] HCA 39 ; 244 CLR 120), there is no explanation for the delay of four years with respect to five further grounds of appeal now pressed on the application. The applicant claims error in the assessment of the objective gravity of the offence, error in finding that the offence was committed in company, error in treating the applicant's record of prior convictions as an aggravating factor, error in failing to give proper weight to the applicant's subjective case and manifest excess.

6 Consistent with the approach adopted by this Court in Abdul v R [2013] NSWCCA 247, the merit of the applicant's grounds of appeal ought be assessed in a relatively summary fashion in order to determine whether a failure to intervene gives rise to a substantial injustice to the applicant.

The Offence

7 The applicant was sentenced on the basis of agreed facts. They recorded that at about 6 am on 18 October 2008, the applicant and two unidentified males hailed a taxi driven by the victim near Anzac Parade. The applicant sat in the front passenger seat and asked the victim to take them to Malabar Road. The applicant directed the victim to Rossiter Avenue Maroubra and told him to stop behind a parked vehicle.

8 The victim saw that the applicant was holding a glass in his left hand. The applicant swung his hand at the face of the victim, smashing the glass on the victim's face. The applicant then struck the victim two or three times to the face whilst the victim attempted to protect his face with his hands.

9 The applicant then got out of the car and walked to the driver's side of the taxi. The victim attempted to leave the car but was pushed back into the car by the applicant, who hit him a further four times to the head. The taxi rolled forward and the applicant ran after the taxi, continuing to hit the victim with his hand. The victim stopped the taxi and the applicant and the other two males ran away.

10 The victim presented at the Prince of Wales Hospital with multiple facial wounds and arterial bleeding from lacerations adjacent to and underneath his right eye. The wounds were cleaned and repaired under local anaesthesia with 24 sutures.

11 The applicant was arrested on 12 November 2008, participated in a record of interview and made admissions as to his involvement in the offence. He told police that he had been drinking and taking drugs but he remembered hitting the victim with a glass up to 4 times "probably" on the face. The applicant said that he had no money for the taxi and thought that attacking the victim was his only option.

Ground 1 : Muldrock Error

12 The applicant submits that the judge adopted a two-stage approach to sentencing and gave determinative weight to the standard non-parole period.

13 In particular, the applicant relies upon the following passage from the judge's remarks on sentence :-

There is a standard non-parole period of seven years imprisonment in respect of this offence. The standard non-parole period represents the non-parole period appropriate for conduct within the middle of the range of objective seriousness of such an offence. Standard non-parole periods strictly apply only to offences upon conviction after trial. Although there has been a plea of guilty in the present case the standard non-parole period remains a reference point for the assessment of the appropriate sentence. As Howie J stated in R v Knight ; R v Biuvanua [2007] NSWCCA 283 at 47 :

Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation.

14 The applicant does not take issue with any part of these remarks save for the reference to Knight and Biuvanua. At paragraph 21 of the decision in Muldrock, the High Court refers to a submission by the Crown that the approach in Knight (amongst other cases) evidences "a 'more categorical' two-stage approach to the sentencing of offenders". It is thus submitted that his Honour's approach to sentence was significantly informed by a now discredited view of the role of the standard non-parole period.

15 The full context of the passage cited from Howie J's judgment in Knight is :-

47 In my opinion it is clear that the Judge failed to give sufficient weight to the standard non-parole period even though it provided only a guidepost or indicator of the appropriate sentence. Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation. When the objective criminality is above midrange then, of course, the maximum penalty prescribed for the offence becomes of more significance.

48 It also seems clear in my view that the Judge allowed Ms Knight's subjective factors to distract her from imposing an appropriate punishment for her offending, given its very grave seriousness.

16 The complaint by the Crown, which was upheld in Knight, was that the offender's subjective circumstances, described by the primary judge as "peculiar circumstances", were given undue prominence at the expense of the objective gravity of the offence. It is in that light that the italicised passage above ought be construed. I do not understand Howie J to be suggesting that mitigating factors play no part in the determination of an appropriate sentence for a standard non-parole period offence.

17 There is nothing inherently objectionable, even post Muldrock, in the statement that there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence. In my view, that is saying no more than that the standard non-parole period operates as a benchmark. However, I accept that Knight suggests that significant weight attaches to the standard non-parole period, although I would not embrace the proposition that any reference to Knight automatically demonstrates that a judge has attached determinative significance to it.

18 The applicant goes further, however, and argues that a reading of the remarks on sentence as a whole supports the conclusion that the judge adopted a two-stage approach. It is submitted that the judge's treatment of the objective gravity of the offence, followed by a consideration of the aggravating and mitigating circumstances, and the contents of the victim impact statement, leading to a determination by his Honour that the offence fell slightly above the mid range of objective seriousness, prior to any consideration of the applicant's subjective circumstances, demonstrates that the judge offended the approved approach to sentencing set out by McHugh J in Markarian v The Queen [2005] HCA 25 ; 228 CLR 357 at [51].

19 That passage from Markarian describes "two tier" sentencing :-

By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the "objective circumstances" of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier. By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

20 However, it is also relevant to bear in mind that :-

It is not useful to begin by asking a general question like was a "staged sentencing process" followed. That is not useful because the expression "staged sentencing process" may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error. Indeed provisions like s 21E of the Crimes Act 1914 (Cth) may require the sentencer, in some circumstances, to identify the amount by which a sentence has been reduced on some account.

Markarian at [24] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

21 Markarian was not a standard non-parole period case. There is nothing in that decision which reduces the significance of legislative guideposts, such as the maximum penalty or a standard non-parole period, in the sentencing task. The plurality in Markarian at [30] and [31] recognised that careful attention ought be paid to legislative yardsticks. McHugh J at [80] recognised that maximum penalties and prescribed non-parole periods guide the judicial instinct. The vice identified in Markarian was determining a sentence referable to an offence, and then engaging in "arithmetical deduction" from that sentence for mitigating and/or subjective factors. The plurality also acknowledged at [39] :-

that is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden.

22 In Muldrock, the High Court deprecated an approach to sentencing for offences carrying a standard non-parole period that gave primary or determinative significance to the opening words of s 54B(2) of the Crimes (Sentencing Procedure) Act 1999, namely, "when determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence" [26]. I note in passing that it has become common in this Court to refer to this aspect of Muldrock in a short-hand fashion, that is, by way of a submission that it is an error to give primary or determinative significance to the standard non-parole period. However, the High Court was referring to an approach to the construction of s 54B(2) and was at pains to highlight the necessity of reading that provision in combination with s 54B(3) and s 21A.

23 It is theoretically possible that a standard non-parole period ultimately assumes primary significance in a sentencing exercise where little or no subjective case is advanced and where mitigating factors are absent. That much is implicitly recognised by the plurality in Markarian at [39]. Provided the determination of the appropriate sentence results from a synthesis of all relevant factors, there would be no Muldrock error, notwithstanding that the standard non-parole period exerted considerable influence on the outcome.

24 Properly construed, the provisions call for a consideration of all relevant factors before arriving at an appropriate sentence, bearing in mind two legislative guideposts, the maximum penalty and the standard non-parole period. The two-stage approach rejected in Muldrock was to "[commence] with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period" : [28].

25 There is absolutely nothing in the judge's remarks in this case that meets that description. The argument that, in effect, every judge who deals with an assessment of the objective gravity of a given offence before a consideration of the offender's subjective case is ipso facto engaging in two-stage sentencing, gains no support from Muldrock and is at odds with the passage from Markarian set out at [20] above. Nothing in Muldrock prohibits an assessment of the objective gravity of an offence. On the contrary, it is explicitly recognised that the objective seriousness of an offence must be assessed wholly by reference to the nature of the offending [27]. Whether that is undertaken before or after dealing with the offender's subjective case is for the most part irrelevant to the detection of Muldrock error.

26 The applicant's next submission is that the non-parole period ultimately imposed, namely 6 years, "could be said to be just above the mid range", allowing for the discount of 25% for the plea of guilty. The argument proceeds in this fashion ; applying the discount of 25% to the 7 years standard non-parole period results in a non-parole period of 5 years and 3 months, therefore leading to the inference that the 6-year non-parole period actually imposed is "just above" the mid range. This submission ignores the application of the discount for the plea of guilty to the head sentence, after which a non-parole period is set that reflects the finding of special circumstances.

27 In fact, the applicant suggests that "his Honour must have started the sentence at 12 years". Given the maximum penalty of 25 years for the offence, such a head sentence is consistent with both the judge's assessment of objective gravity and the influence of subjective factors. The application of the discount for the plea of guilty on this scenario resulted in the head sentence of 9 years. The non-parole period of 6 years represents 66% of the head sentence. In short, the mathematical analysis of the sentence pressed by the applicant does not compel the conclusion that "the ultimate sentence was 'tethered' to the standard non-parole period."

28 In my view, there is no merit in this ground.

Grounds 2, 3 and 4 : Error in the Assessment of Objective Gravity and Aggravating Factors

29 It is convenient to deal with these three grounds together.

30 The encapsulation of the judge's findings with respect to the objective gravity of the offence appears as follows in the remarks on sentence :-

The facts in the present case speak for themselves. This is objectively a most serious offence. This was an unprovoked attack on a defenceless taxi driver whilst the offender was in company. The woundings did not occur as a result of a single act. The glass was repeatedly thrust into the victim's face. The offender clearly knew he had no money to pay for the cab and his considered response, albeit under the influence of alcohol and drugs, was a blitzkrieg attack on the taxi driver. Even though the taxi driver pleaded with the offender to stop and indeed tried to open the driver's door to escape, the offender came around to that side of the vehicle, pushed the driver back in and continued to rain blows on his face /head. The taxi was rolling forward at this stage as it was still in gear and the offender moved with it and continued to strike the victim. So quite apart from the wounding with the glass there was further gratuitous violence involved in this attack.

31 His Honour then moved to a consideration of aggravating factors, namely, that the offence involved the actual use of a weapon, that the offender had a record of previous convictions, that the offence was committed whilst he was on conditional liberty and that the victim was vulnerable.

32 His Honour found mitigating factors, namely, that the offence was not part of planned or organised criminal activity, that the offender had good prospects of rehabilitation, that he had demonstrated remorse and that he had pleaded guilty.

33 The applicant's counsel below submitted that the offence fell below the mid range of objective gravity because there was no planning and because the injuries were not at the "top end of the scale" such as those inflicted by a gun or a knife. His Honour answered this submission in these terms :-

Upon a consideration of all these matters my assessment is that this case falls slightly above the mid range of objective seriousness. I am not persuaded to the view that it should be considered otherwise because of the nature of the weapon or that the courts often see worse woundings.

34 The applicant now seeks to re-agitate the submission advanced by the applicant's counsel below, namely, that because the result of the conduct is an important indicator of objective gravity for offences of this type (citing R v Mitchell ; R v Gallagher [2007] NSWCCA 296 ; 177 A Crim R 94 at [27]), this offence did not warrant a finding of objective gravity above the mid range on the basis that the injuries caused to the victim were not as serious as might otherwise have been the case.

35 The nature of the injury is but one factor in the assessment of objective gravity. In any event, the assessment of objective gravity is an exercise of the sentencing discretion with which this Court will not lightly interfere. None of the applicant's submissions on this ground demonstrate a failure to take into account a relevant matter.

36 Allied to this ground is a submission that his Honour found that the offence was committed in company, that is, that his Honour took into consideration an irrelevant matter. This submission seeks to elevate an observation by the judge that the applicant was in the company of other persons to a finding in the nature of an aggravating circumstance. However, it is clear from the specific aggravating factors enumerated by his Honour in the course of his remarks on sentence that this submission is also lacking in merit.

37 The reference to the applicant's record of previous convictions as an aggravating factor may be accepted as a technical error in the sense that, whilst s 21A(2)(d) provides that previous convictions aggravate an offence, they are not relevant to the objective gravity of the offending. The fact of prior convictions is not irrelevant. It disentitles the offender to a claim for leniency and it may demonstrate that the offending is not an uncharacteristic aberration : R v McNaughton [2006] NSWCCA 242 ; 66 NSWLR 566. That was clearly the case for the applicant.

38 Of more relevance to the finding of objective gravity was the commission of the offence whilst the applicant was on conditional liberty, which was a by-product of his earlier offending. In those circumstances, I do not regard the reference to the applicant's previous criminal history as an aggravating factor as a material error in the sentencing exercise.

39 The applicant has not persuaded me that the finding of above mid-range objective gravity was not open to the judge.

Ground 5 : Failure to Give Proper Weight to Subjective Circumstances

40 This ground suffers from the same flawed reasoning as Ground 1. The submission is that the imposition of a non-parole period mathematically linked to the standard non-parole period establishes, without more, a failure to take sufficient account of the applicant's subjective case in that there was no downward adjustment to the sentence. Paradoxically, this argument invites the staged approach to sentencing that was criticised in Markarian and Muldrock.

41 I reject the premise upon which this argument is based.

Ground 6 : Manifest Excess

42 This ground is based upon an examination of the Judicial Commission statistics and a comparison with other sentences imposed in relevant cases, such as Pillay v R [2006] NSWCCA 402, Speechly v R [2008] NSWCCA 204, Wilkins v R [2009] NSWCCA 222, Shaba v R [2011] NSWCCA 154, Aldous v R [2012] NSWCCA 153, Butler v R [2012] NSWCCA 23, and R v Bugmy [2012] NSWCCA 223.

43 The last three of these cases post-date Muldrock. These cases and the decisions in Aitchison v R [2012] NSWCCA 82, Mendes v R [2012] NSWCCA 103, and Carroll v R [2012] NSWCCA 118 are also relied upon.

44 The Judicial Commission statistics for the period February 2008 to March 2013 disclose sentences of between 2 years and 16 years, with non-parole periods between one year and 10 years. The applicant's sentence is at the upper end of that range.

45 In Pillay, there was no finding of manifest excess in relation to a sentence at first instance of 9 years and 4 months, with a non-parole period of 7 years. The Court intervened on the basis of a breach of the De Simoni principle and a failure to find special circumstances. The offender inflicted a single deep cut to the victim's hand. The substituted sentence of 5 years and 6 months non-parole with a balance of term of 2 years and 6 months tends to defeat the applicant's argument on this ground.

46 Similarly, in Speechly the offender engaged in punching and kicking the victim together with others. A sentence of 10 years and 8 months, which included a non-parole period of 6 years, was varied to the extent that the balance of term was reduced to 3 years, primarily on parity grounds. There was no ground of manifest excess. Once again, this case does not support the applicant.

47 In Wilkins, the offender struck the victim a number of times to the head with a hammer. The Court found that the offence did not warrant a finding of mid range objective gravity and accordingly reduced the sentence from 11 years 6 months, including a non-parole period of 7 years, to one of 8 years and 6 months, including a non-parole period of 5 years and 6 months. The Court found it unnecessary to determine whether the sentence was manifestly excessive. In any event, the substituted sentence is but 6 months less than that imposed upon the applicant.

48 Shaba provides no assistance, given that the offender received a "somewhat favourable" sentence on account of the consequences to him of his assistance to authorities in respect of an unrelated matter. The offender inflicted a single knife wound to the left side of the victim.

49 In Aldous, the offender struck the victim once to the back of the head while holding a schooner glass. A sentence of 6 years, including a non-parole period of 3 years was upheld on the basis that the primary judge's assessment of the offence as slightly below mid range was open and that the sentence was a "modest" one.

50 In Butler a non-parole period of 5 years and 6 months with a balance of term of 3 years was imposed at first instance and upheld by the Court. The offender struck the victim twice to the face whilst holding an implement that caused deep lacerations. There was no ground of manifest excess. The sentence is relevantly comparable.

51 Lastly, Bugmy was a Crown appeal. Nothing can be gained by seeking to make comparisons with that case.

52 Neither the statistics nor these cases support the applicant's contention that the sentence imposed upon him is manifestly excessive, that is, plainly unjust.

53 I propose that the extension of time within which to seek leave to appeal be refused.

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Decision last updated: 10 December 2013