McIntyre v R [2009] NSWCCA 305 (18 December 2009)

3 JOHNSON J: The Applicant, Stuart James McIntyre, seeks leave to appeal with respect to sentences passed in the Penrith District Court on 8 May 2009 upon charges of assault occasioning actual bodily harm (s.59 Crimes Act 1900) and assaulting a police officer in the execution of his duty (s.58). The maximum penalty for each offence is imprisonment for five years.

4 For the s.58 offence, the Applicant was sentenced to imprisonment comprising a non-parole period of nine months to date from 25 July 2008 and to expire on 24 April 2009 with an additional term of four months to expire on 24 August 2009. For the s.59 offence, the Applicant was sentenced to imprisonment comprising a non-parole period of one year and five months to date from 25 October 2008 and to expire on 24 March 2010 with an additional term of 10 months to expire on 24 January 2011. An offence of offensive language under s.4A(1) Summary Offences Act 1988 was taken into account on a Form 1 in passing sentence for the s.59 offence. The maximum penalty for a s.4A(1) offence was a fine of six penalty units ($660.00).

5 Thus, a total effective sentence of imprisonment for two years and six months with a non-parole period of one year and eight months was imposed, with the Applicant to be released on parole on 24 March 2010.

6 What follows is drawn from the statement of facts tendered by consent at the sentencing proceedings in the District Court.

7 As at 25 July 2008, the Applicant (then aged 38 years) resided with his mother, Joan McIntyre, in a granny flat at the rear of premises in Dean Park. Mrs McIntyre is the victim of the assault occasioning actual bodily harm offence. Other members of the McIntyre family lived in a residence at the front of the Dean Park property.

8 About 5.00 pm on 25 July 2008, the Applicant walked into a room in the granny flat and said to the victim “You killed my father” and “I’m going to kill you”. At this time, the victim was seated in front of a computer. The Applicant approached her, grabbed the victim in the chair and spun her around. He then stood over the victim and grabbed her around her throat with his left hand. At this time, the victim was struggling to breathe. Whilst the Applicant was doing this, he was saying “Liar” to the victim. The Applicant then punched the victim, with a closed fist, at least twice on the left side of the face, causing her to fall to the floor.

9 The Applicant then released his grip around the victim’s throat, but did not totally remove his hand. He continued to stand over the victim. At this time, the victim feared for her life.

10 The Applicant then walked to the kitchen area and picked up a large carving knife. He said to the victim “I’m going to stab you. I’m going to kill you. You are a worse mother than your mother. You’re a liar, tell everyone you’re a liar”. The Applicant then stood in the kitchen area, saying it would be easy to kill the victim. He asked her if she had “ever seen someone stabbed through the kidneys”. The victim said “Let me use the phone so I can tell them I’m a liar”. The victim then contacted her daughter-in-law, who was in the residence at the front of the Dean Park property. The Applicant realised that the victim had not rung his sister (as he expected) and became angrier, saying to the victim “You’re dead. Sit down on the lounge. Don’t run for it or I will stab you in the back”.

11 The victim walked past the Applicant and then managed to move out the front door. She ran to the house at the front of the property, about 20 metres away. As the victim ran, the Applicant yelled words to the effect “Run, I can kill you, I can get you through the back”.

13 As a result of the attack upon her by the Applicant, the victim sustained a bruise, four centimetres in diameter, to the left side of her cheek, a bruise five centimetres in diameter on her left shoulder and a bruise behind her right arm. Her throat was sore as a result of the Applicant grabbing her by the throat.

14 At the time of the incident, the victim had problems with her left ankle, which was in a detachable material cast. This ankle problem severely impacted upon her mobility, this being a fact known to the Applicant. The victim had both her knees replaced not long before the incident, and her right shoulder had been replaced some six months prior to this offence.

15 Police arrested the Applicant and conveyed him to Quakers Hill Police Station where he was introduced to the Custody Manager. Several attempts were made to obtain personal details from the Applicant to enable him to be booked into custody, but the Applicant would not provide his name or other personal details to the Custody Manager.

16 The Custody Manager requested Senior Constable Dean Perkins to fingerprint the Applicant for the purpose of positive identification. Senior Constable Perkins opened the door to the dock to take the Applicant to the fingerprint scan unit. The Applicant swung his arm to break Senior Constable Perkins’ grip, saying “Don’t touch me, if you touch me again, I’ll smash you”. Senior Constable Perkins attempted to grab the Applicant, and the Applicant lunged towards Senior Constable Perkins and punched him with a closed right fist to the left side of the face, underneath his eye, causing immediate pain. A scuffle then ensued where the Applicant was forced to the ground and handcuffed. He was placed in the dock and the door was closed and locked behind him.

17 About 8.50 pm that evening, the Applicant repeatedly swore at the police whilst inside Quakers Hill Police Station. He said “You’re nothing but a black cunt who looks like he’s been sucking the dick of the fucking sergeant”. Police warned the Applicant to stop swearing, or he risked being charged with further offences. The Applicant said “You can all go fuck yourselves, you bunch of cunts”. The Applicant was warned again, and responded by saying “I don’t give a fuck you cocksuckers”. The Applicant could be heard clearly from the front counter of the Police Station. Several members of the public were present in the front foyer at that time. The Applicant also said words to the effect “Come on cunt, take these cuffs off me and let me out of here. I will smash you cunts. You wait till I see you down Blacktown, I will fucking get you”.

18 The Applicant was born in 1970. He was 38 years old at the time of the offences and 39 years of age at the time of sentence.

19 The Applicant is a single man with no children. Before the District Court was a report dated 11 September 2008 of Dr Adam Martin, forensic psychiatrist with Justice Health. Dr Martin had examined the Applicant at the request of the Local Court. The Applicant informed Dr Martin that he had grown up in Blacktown and that his father had schizophrenia and had committed suicide in 1996. The Applicant had completed an apprenticeship in boiler making at the age of 19 years. He had not worked since 2002.

20 In the early 1990s, the Applicant had been admitted to Cumberland Hospital after experiencing auditory hallucinations following amphetamine use. A diagnosis of bipolar disorder had been made. There was said to have been a pattern of binge alcohol use, together with use of a range of illicit drugs.

21 Dr Martin expressed the opinion that it was likely that the Applicant suffered from a mental illness, probably bipolar disorder or schizo-affective disorder, and that he probably fulfilled as well the diagnostic criteria for alcohol abuse or poly-substance dependence. The Applicant appeared to be of average intelligence. Dr Martin considered that it was unlikely that the Applicant would be found to be a mentally ill person under the Mental Health Act 2007, but recommended that he be reviewed regularly by a psychiatrist and mental health workers.

22 The Applicant has an extensive criminal history, including offences of violence, property damage, drink driving and dishonesty offences. Confining attention to offences of violence, the Applicant’s record reveals the following:

Date of Sentence	Offence	Sentence
8 February 1988	Resist arrest	12 months’ probation
23 May 1988	Assault police	12 months’ bond
5 November 1990	Sexual intercourse with a child between 10 and 16 years	Imprisonment for three years and four months with a non-parole period of two years and six months
28 October 1994	Malicious wounding	450 hours' community service
15 January 1996	Assault police	$500.00 fine
15 January 1996	Resist police	$200.00 fine
26 September 1996	Assault	$650.00 fine
26 September 1996	Resist arrest	$500.00 fine
25 August 1997	Assault police in execution of duty Common assault (2) Resist officer in execution of duty	$300.00 fine on each charge
12 July 2002	Resist officer in execution of duty	$150.00 fine
17 December 2002	Common assault	Four months’ imprisonment
23 February 2004	Common assault (2)	Four months’ imprisonment on each charge
22 June 2004	Common assault	Three months’ imprisonment
29 April 2005	Common assault	12 months’ imprisonment with a non-parole period of six months
23 November 2005	Common assault Resist officer in execution of duty	Three months’ imprisonment on each charge
22 February 2006	Common assault	Sentence of imprisonment for nine months with a non-parole period of five months, suspended on entering s.12 bond to be of good behaviour for nine months
7 September 2006	Call-up for breach of bond given on 22 February 2006	Imprisonment for nine months with a non-parole period of five months
15 September 2006	Common assault Contravene apprehended domestic violence order (by 2)	Three months’ imprisonment for common assault; s.9 bond to be of good behaviour for 18 months on contravene ADVO matter
29 June 2007	Assault law officer (not police)	Six months’ imprisonment

23 Documents tendered in the District Court revealed that the offences for which the Applicant was sentenced on 15 September 2006 involved an assault upon his mother at their Dean Park home, at a time when he was subject to an apprehended domestic violence order designed to protect her from him.

24 Having regard to submissions made in support of the present application, it is appropriate to refer to the history of proceedings following the Applicant’s arrest on 25 July 2008.

25 It appears that the Applicant was originally charged with the offences for which he was sentenced, together with more serious charges of using an offensive weapon with intent to commit an indictable offence and detaining a person with intent to obtain an advantage. On 30 January 2009, the lastmentioned charges were withdrawn. The Applicant pleaded guilty to the ss.58 and 59 charges and was committed for sentence to the District Court with respect to those matters.

26 Offences under ss.58 and 59 Crimes Act 1900 are Table 2 offences which are to be dealt with summarily by the Local Court unless the prosecutor elects to have the offences dealt with on indictment: s.260(2) Criminal Procedure Act 1986; clause 1, Table 2, Schedule 1, Criminal Procedure Act 1986. On indictment, the maximum penalty for each offence is imprisonment for five years. If dealt with summarily in the Local Court, the maximum penalty for each offence is imprisonment for two years or a fine of 50 penalty units or both: s.268(2)(a) Criminal Procedure Act 1986.

27 Accordingly, the Crown elected that the ss.58 and 59 offences be prosecuted on indictment. It may be taken that the Crown had regard to paragraph 8 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions (NSW) in this regard.

28 The significance of the Crown election will be referred to shortly when addressing the second ground of appeal.

Ground 1 - Breach of De Simoni Principle Concerning Offence of Assault Police Officer in Execution of Duty

29 The first ground of appeal asserted that the sentencing Judge breached the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 by taking into consideration injury to the police officer in passing sentence with respect to the s.58 offence.

30 The statement of facts tendered, without objection, in the District Court included the following statement concerning the s.58 offence:

31 In written submissions before the District Court, the Crown submitted with respect to the s.58 offence that the “punch caused Constable Perkins to seek minor medical treatment and he sustained a bruise to his face”. In addressing the objective seriousness of the s.58 offence, the sentencing Judge stated (ROS5):

32 Mr Carroll, counsel for the Applicant, submitted that the sentencing Judge breached the De Simoni principle by taking into account, with respect to the objective seriousness of the s.58 offence, the fact that it had “resulted in some injury”, being a finding of actual bodily harm. He acknowledged that this argument had not been advanced in the District Court and was being made for the first time in this Court. He contended that this finding was impermissible and disclosed error.

33 The Crown submitted that the mere recital of a factor that may constitute an aggravating circumstance does not necessarily mean that the sentencing Judge has taken that factor into account, in an impermissible way, in breach of the De Simoni principle. It was submitted that a mere recital of the facts contained in the statement of facts which had been admitted by consent, does not constitute a breach of the De Simoni principle. Although acknowledging that the sentencing Judge referred to

”some injury” resulting from the s.58 offence, the Crown submitted that this comment was preceded immediately by an observation that the offence was one with “no attendant aggravating circumstances” and that it fell objectively towards the lower end of the scale. Thus, the Crown submitted that her Honour did not treat the injury as an aggravating factor.

34 In imposing sentence, a judge is entitled to consider all the conduct of the offender, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: The Queen v De Simoni at 389. The usual approach to determine whether an offence is a more serious offence, for the purpose of this principle, is to consider the maximum penalty for the crime: R v Hooper [2004] NSWCCA 10 at [26].

35 Section 58 provides for a range of assault offences, each of which is punishable by five years’ imprisonment. The particular offence in this case was assaulting an officer (a constable) while in the execution of his duty. Since 1999, s.60(1) Crimes Act 1900 has also provided for an offence of assaulting a police officer whilst in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, an offence punishable by imprisonment for five years. No submission was made in this case that a charge under s.58 was inappropriate, given the availability of a charge under s.60(1) where it is a police officer assaulted in the execution of duty. In any event, offences under ss.58 and 60(1) each carry the same maximum penalty of five years’ imprisonment.

36 A person who assaults a police officer whilst in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable for imprisonment for seven years: s.60(2) Crimes Act 1900. A standard non-parole period of three years applies to a s.60(2) offence: s.54A Crimes (Sentencing Procedure) Act 1999.

37 For the purposes of the De Simoni principle, it is clear that a s.60(2) offence is more serious than an offence under ss.58 or 60(1) Crimes Act 1900.

38 Mr Carroll submitted that her Honour had regard to an impermissible aggravating factor, namely that the assault upon the police officer occasioned actual bodily harm.

39 By his plea of guilty to the s.58 charge, the Applicant admitted an assault upon the police officer in the execution of his duty.

40 What is an assault? The traditional common law distinction between assault and battery has largely fallen away for the purpose of application of the modern law of assault. The distinction between assault and battery noted that an assault is an act which causes another person to apprehend the infliction of immediate unlawful force on his or her person, and a battery is the actual infliction of unlawful force on another person: R v Knight (1988) 35 A Crim R 314 at 316-317. Where the assault takes the form of a battery, what is required is an intentional touching of the victim without that person’s consent and without lawful excuse: Fitzgerald v Kennard (1995) 38 NSWLR 184 at 192, 200.

41 A practical distinction is sometimes drawn between a physical assault (or battery assault) and psychic assault (or apprehended unlawful force assault): Fitzgerald v Kennard at 200-201; Mikhael v Conroy (Finlay J, 6 December 1990, unreported, BC9002962 at pages 8-15); Lake Macquarie City Council v Morris [2005] NSWSC 387; (2005) 63 NSWLR 263 at 273-274 [48]- [49].

42 It is not an element of the crime of assault that injury be caused to the victim. Any touching of another person, however slight, may amount to a physical assault. It has been said that the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1991]-[1992] [1992] HCA 15; 175 CLR 218 at 233, 265-266; Collins v Wilcock [1984] 1 WLR 1172 at 1177.

43 If actual bodily harm was occasioned by an assault, then the offender is liable to conviction and sentence for a more serious offence where the occasioning of actual bodily harm is an element of the offence. In the case of a police officer victim, this offence arises under s.60(2). In the case of a victim who was not a police officer, the relevant offence is one under s.59 of the Act.

44 The term “actual bodily harm” is not defined in the Crimes Act 1900. The phrase “bodily harm” has been said to include any hurt or injury calculated to interfere with the health or comfort of the victim: R v Overall (1993) 71 A Crim R 170 at 178. It need not be permanent, but must be more than merely transient or trifling - it is something less than “grievous bodily harm”, which requires really serious physical injury, and “wounding”, which requires breaking of the skin: R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715 at page 4). The distinction between grievous bodily harm and actual bodily harm involves an assessment of the degree of harm done, with one being more serious than the other: R v Overall at 173-174. Bruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm: R v Cameron [1983] 2 NSWLR 66 at 67. If a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would likely amount to actual bodily harm: Li v R [2005] NSWCCA 442 at [45].

45 This Court has observed that the seriousness of the offence of common assault (under s.61 Crimes Act 1900) must be discerned from the circumstances of the offence and that, if bodily harm has been caused, then that is relevant to whether there has been an offence under s.59 but it is not, and cannot be, relevant to the sentencing of a person for common assault under s.61: R v Abboud [2005] NSWCCA 251 at [18]. It is impermissible for the Crown to tender, or for a court to admit, evidence in sentencing proceedings for common assault, which evidence seeks to demonstrate actual bodily harm: R v Abboud at [19].

46 In the present case, the statement of facts admitted, by consent, in the District Court referred to swelling and bruising to the face of the police officer as a result of the assault upon him by the Applicant. The Crown submitted in the District Court that the punch to the police officer had bruised his face and caused him to seek minor medical treatment. The paragraph in the statement of facts constituted evidence of actual bodily harm, and the sentencing Judge was invited to have regard to this consequence of the assault in passing sentence upon the Applicant.

47 Did the sentencing Judge breach the De Simoni principle in this case? Her Honour observed that “... it was a serious offence that resulted in some injury”.

48 It has been made clear in cases such as R v Overall and R v Lardner that the bare recital of facts by a sentencing Judge does not necessarily involve a breach of the De Simoni principle.

49 If the Crown had determined to prosecute the Applicant for an offence under s.58 (or s.60(1)), and not an offence under s.60(2), then the statement of facts ought not to have referred to injury in the form of bruising which had resulted from the assault upon the police officer. Once such material was inserted in the agreed statement of facts, there was a prospect that the sentencing Judge would not only refer to it, but take it into account in assessing the objective seriousness of the offence for which the Applicant stood to be sentenced. This prospect became a reality in this case. Her Honour had regard to “the injury” when assessing the objective seriousness of the s.58 offence.

50 I am satisfied that the sentencing Judge erred in having regard to the injury resulting from the assault as an aggravating factor on sentence, and that a breach of the De Simoni principle has been established: R v Thorpe (NSWCCA, 17 December 1992, unreported, BC9201406 at page 11).

51 The difficulty which arises when an agreed statement of facts contains material which evidences a more serious offence, has been emphasised in a recent decision of this Court: Barton v R [2009] NSWCCA 285, where Howie J at [18] referred, once again, to the importance of an agreed statement of facts being consistent with the offence for which the offender was to be sentenced.

52 It should be observed that her Honour did not receive assistance from the legal representatives for the Crown and the Applicant in the District Court, with no reference being made to the De Simoni principle concerning injury to the police officer. It is the duty of counsel appearing at a sentencing hearing to assist the Court by making relevant submissions at that time on issues of fact and law: Edwards v R [2009] NSWCCA 199 at [11].

53 The question remains as to what flows from this error, an issue considered later in the judgment by reference to s.6(3) Criminal Appeal Act 1912.

54 I am conscious that sentencing decisions are made daily in the Local Court in this State for offences of common assault under s.61 and assault police officer in the execution of duty under ss.58 or 60 (1) Crimes Act 1900. Nothing said in this judgment is intended to deter prosecutors from appropriate charge selection in the exercise of prosecutorial discretion. Whether a particular case calls for a charge of assault, or assault occasioning actual bodily harm, will depend upon an assessment of factors relevant to the exercise of prosecutorial discretion, including the level of criminality revealed by the evidence. I regard the selection of a s.58 charge in this case as being entirely appropriate.

55 It remains the law, however, that where a charge of assault, and not assault occasioning actual bodily harm, proceeds to sentence, then evidence of the consequences of the assault, which constitutes actual bodily harm, ought not be tendered in the sentencing proceedings. If evidence of this type is tendered, then the sentencing court must be alert to the requirements of the De Simoni principle, and an express statement ought be made that the court is disregarding evidence of actual bodily harm in passing sentence for the offence of assault.

Ground 2 - Her Honour Erred in Considering the Effect of the Availability of Summary Disposal

56 As mentioned above, each of the ss.58 and 59 offences were Table 2 offences capable of summary disposal in the Local Court. In this case, the prosecution elected for each offence to be dealt with on indictment.

57 Submissions were made in the District Court concerning the relevance of the possibility of summary disposal on sentence. The Crown submitted that this was not a factor which assisted the Applicant on sentence in the circumstances of this case. Her Honour was referred to decisions of this Court which bear upon this question. It was submitted for the Applicant in the District Court that the possibility of summary disposal was a factor which ought be taken into account in the Applicant’s favour on sentence.

59 Mr Carroll submitted that her Honour had erroneously excluded the availability of summary disposal from consideration, by reference to the early pleas of guilty in the Local Court. His submissions concentrated on the s.58 offence. The Crown submitted that, regardless of the path by which her Honour came to her conclusion on this issue, the availability of summary disposal with respect to the s.58 offence did not assist the Applicant on sentence.

60 It is necessary to fairly read the sentencing Judge’s comments on this issue. They are certainly open to a construction that the award of a discount for an early plea of guilty in the Local Court should exclude from consideration on sentence the possibility of summary disposal. Her Honour went further and explained that, as it was the Crown election for the matters to be dealt with in the District Court, this factor ought not be taken into account on sentence.

61 With respect, her Honour has not identified and applied the relevant principles to be considered when a submission of this type is made. The fact that an offender has pleaded guilty, at an early stage, in the Local Court to the offence which comes before the District Court for sentence on indictment, and will obtain an appropriate discount as a result, does not prevent the Court from taking into account on sentence, in a proper case, the availability of summary disposal.

62 The relevant principles have been stated in a number of decisions of this Court, including R v Crombie [1999] NSWCCA 297; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at 45-48 [76]- [91]; McCullough v R [2009] NSWCCA 94 at [22]- [26]; Edwards v R at [47]-[49]. There is no fixed rule when an argument based upon possible summary disposal is advanced, nor is this a factor which operates universally to reduce sentence. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Edwards v R at [47].

63 Ought the s.58 offence be regarded as one which was truly a Local Court offence being prosecuted in the District Court: Edwards v R at [49]?

64 It has been observed that, where the Director of Public Prosecutions has elected to prosecute a matter on indictment, it would require a very clear case of inappropriate prosecution of an offence on indictment for an argument to be available in mitigation resulting from a lost opportunity for summary disposal of that offence: Edwards v R at [49]. The Applicant had a lengthy record for offences of violence, including a number of offences of assault police or assault officer other than a police officer. No doubt, the Applicant’s criminal history was taken into account by the Director of Public Prosecutions in electing to prosecute the s.58 offence on indictment.

65 Although the s.58 offence was committed on the same day as the s.59 offence, it occurred at a different place and time. Nevertheless, it arose from connected events earlier in the day where the Applicant had committed an offence of violence against his mother, for which he was arrested.

66 I do not think that this is a case where, in effect, the s.59 offence has dragged the s.58 offence into the District Court for sentence. Rather, the s.58 offence was far from trivial, and was committed by an offender with a history of persistent offending of this type. It was reasonable that a view be taken by the Crown that the Applicant ought stand for sentence for these two crimes of violence before the District Court, with the penalties available to that Court being open.

67 Once the relevant principles with respect to the availability of summary disposal are taken into account in this case, it is clear that the theoretical possibility of the s.58 offence being disposed of summarily, does not assist the Applicant on sentence. Although I am satisfied that the sentencing Judge erred in excluding this factor from consideration upon an inappropriate basis, the factor does not ultimately assist the Applicant when it is taken into account in accordance with relevant principles.

68 In any event, the sentence imposed for the s.58 offence involved a head sentence of 13 months, and three months’ custody only was solely referable to this offence. A sentencing decision of that type would have been unremarkable in the Local Court, in the circumstances of this offence and this offender.

69 Mr Carroll submitted that the sentences imposed were manifestly excessive. He referred to sentencing statistics, and a schedule of cases, for offences under ss.58 and 59, which he said supported the submission that the sentences were manifestly excessive. He submitted that this conclusion was assisted by the sentencing Judge’s assessment of the objective seriousness of the offences, with her Honour assessing the s.59 offence as being “towards the lower to mid range of seriousness” and the s.58 offence as being “towards the lower end of the scale”.

70 The Crown pointed to the limitations of statistics and schedules of cases: Nguyen v R [2009] NSWCCA 283 at [15]. In addition, the Crown submitted that the s.59 offence was of significant objective gravity, aggravated by the vulnerability of the victim and the use of a knife to threaten her, in particular where the offence was committed in a domestic context and where there had been prior acts of violence against the same victim. Further, a Form 1 offence was taken into account on sentence. With respect to the s.58 offence, the Crown submitted that as an assault may be established without physical contact, the blow delivered to the officer rendered the offence a serious one. Allowing for the partial concurrency of sentences imposed for the two offences, the Crown submitted that only three months’ imprisonment (25 July 2008 to 24 October 2008) was referrable solely to the s.58 offence.

71 Even if the Applicant established error on the part of the sentencing Judge, the Crown submitted that no lesser sentence was warranted in law: s.6(3) Criminal Appeal Act 1912.

72 The real question to be determined is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; [2005] 228 CLR 357 at 370-371 [25].

73 The sentencing Judge’s finding concerning the objective seriousness of the s.59 offence was generous to the Applicant. The s.59 offence was committed over a period of time, and involved the use of physical force upon the victim, and the making of threats whilst the Applicant brandished a knife towards her. This involved a series of connected acts, constituting the one transaction, of physical assault and psychic assault (see [41] above).

74 Understandably, the victim feared for her life. She was 60 years of age and suffered from physical disabilities of which the Applicant was aware. The offence involved a prolonged and unprovoked assault upon a vulnerable woman in her own home by her own son: McCullough v R at [41]. The Applicant had committed earlier crimes of domestic violence against his mother, and he acted again in this way on this occasion.

75 The sentencing Judge’s assessment of the objective seriousness of the s.58 offence was also generous to the Applicant. Bearing in mind the fact that injury must be excluded entirely from the equation, this was a significant offence of violence in which the Applicant punched a police officer, with considerable force, to the face.

77 In cases involving assault against police, there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases: Attorney General’s Application (No. 2) of 2002 at 203 [26].

78 The Applicant had an extensive criminal history for offences of violence, including offences committed against his mother, and offences committed against police officers. Having regard to the Applicant’s criminal history, the sentencing Judge was entitled to give more weight to considerations of personal deterrence and protection of the community than otherwise would be the case: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at 574-575; R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at 171-172 [51].

79 The sentencing Judge had regard to the Applicant’s long-term mental health issues, and observed that less weight may be given to general deterrence, but that other features may not operate in the Applicant’s favour on sentence. The Applicant’s history of violent offending, against the background of mental illness and alcohol and drug abuse, raised an issue as well concerning the protection of the community, including the Applicant’s mother and police officers: R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at 200-201 [117]. It is apparent from the Applicant’s criminal history that a range of sentencing options have been tried in the past, involving conditional liberty or other non-custodial sentences, but the Applicant has continued to commit offences of violence.

80 With respect to accumulation, concurrency and totality, it was open to the sentencing Judge to impose partly cumulative sentences having regard to the fact that two separate crimes were committed against different victims. Only three months’ imprisonment was referable solely to the s.58 offence.

81 I do not consider that the sentencing statistics, nor the schedule of cases, provide any real assistance to the Applicant in this case. In my view, no sentencing pattern or range relevant to the offences to which the Applicant pleaded guilty is to be discerned from the cases referred to in the schedule. Likewise, the bare statistics do not assist. The maximum penalty for each offence is that prescribed at law, namely imprisonment for five years.

82 Having regard to the facts of these offences, and the criminal history and subjective circumstances of the Applicant, I am not persuaded that either sentence imposed upon him was manifestly excessive.

83 The Applicant has demonstrated error under the first ground, being a breach of the De Simoni principle in taking into account the injury to the police officer in determining the objective seriousness of the s.58 offence. Further, the Applicant has demonstrated error under the second ground, given the sentencing Judge’s unwillingness to consider the possibility of summary disposal because the Applicant was to be given a 25% discount for early pleas of guilty in the Local Court.

84 I have already determined that the error under the second ground of appeal does not materially assist the Applicant. That is because the possibility of summary disposal of the s.58 offence, when considered in accordance with appropriate principles, does not constitute a discretionary factor which operates to reduce sentence in this case. In the context of the present case, I regard the error under the first ground of appeal as a minor one. In the result, there was a passing, but impermissible, reference to the injury to the police officer in the remarks on sentence.

85 With respect to each offence, no lesser sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912.

Supreme Court of New South Wales - Court of Criminal Appeal

McIntyre v R [2009] NSWCCA 305 (18 December 2009)