Henry v The Queen

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Burns,Loukas-Karlsson,Charlesworth JJ
• Judgment Date: 28 February 2019
• Docket Number: File Number: ACTCA 10 of 2018
• Date: 28 February 2019

Mark Peter Henry

(Appellant)

and

The Queen

(Respondent)

[2019] ACTCA 5

Before:

Burns, Loukas-Karlsson and Charlesworth JJ

File Number: ACTCA 10 of 2018

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL AND NEW TRIAL — APPEAL-GENERAL PRINCIPLES — In General and Right of Appeal — Appeal against sentence — manifest excess — whether non-parole period manifestly excessive

Cases Cited:

Afiouny v The Queen [2017] NSWCCA 23

Barrett v The Queen [2016] ACTCA 38

Bugmy v The Queen (1990) 169 CLR 525

Dalton v The Queen [2015] ACTCA 48

Heard v The Queen [2015] ACTCA 6

House v The King (1936) 55 CLR 499

Jovanovic v The Queen [2015] ACTCA 29

Kumova v The Queen [2012] VSCA 212; 37 VR 53

Lowndes v The Queen [1999] HCA 2; 195 CLR 665

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Martin v The Queen; Martin v The Queen [2015] ACTCA 38

Millard v The Queen [2016] ACTCA 14

Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80

Obeid v R [2017] NSWCCA 221; 96 NSWLR 155

Power v The Queen (1974) 131 CLR 623

R v Bernath (1997) 1 VR 271

R v Detenamo [2007] VSCA 160

R v Devries [2018] SASCFC 101

R v Henry [2018] ACTSC 34

R v Toumo'ua [2017] ACTCA 9

R v VZ [1998] VSCA 32; 7 VR 693

Sampson v The Queen [2018] ACTCA 67

Singh v The Queen [2015] ACTCA 65

Taylor v the Queen [2014] ACTCA 9

Zdravkovic v The Queen [2016] ACTCA 53

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 7

Crimes (Sentencing Procedure) Act 1999 (NSW) s 44

Penalties and Sentences Act 1992 (Qld) s 160B(3)

Sentencing Act 1995 (NT) ss 53, 54

Sentencing Act 1997 (Tas) s 17

Sentencing Act 1995 (WA) s 93

Representation:

Counsel

Mr J Stewart (Appellant)

Mr J Hiscox (Respondent)

Decision:

The appeal is dismissed.

THE COURT

Introduction

1 Mark Peter Henry (the appellant) appealed against sentences imposed by Elkaim J (the sentencing judge) on 27 February 2018: see R v Henry [2018] ACTSC 34 ( Henry).

2 The sentencing judge made the following orders in respect of the appellant:

• (a) In respect of the offence of recklessly inflict grievous bodily harm (XO 2017/ 31260), the offender is sentenced to 18 months' imprisonment commencing on 24 February 2018 and ending on 23 August 2019.

• (b) I set a Non-Parole Period of 15 months commencing on 24 February 2018 and ending on 23 May 2019.

3 The sentence reflected a discount of 20% for the plea of guilty: Henry at [4].

4 The non-parole period is 83.33% (or five-sixths) of the total head sentence of 18 months of imprisonment.

Grounds of Appeal

5 At the hearing of the appeal, the appellant was granted leave to file an amended notice of appeal in court. That amended notice of appeal contained the following ground of appeal:

• (a) The non-parole period is manifestly excessive in all of the circumstances.

6 The orders sought are that:

• (b) The appeal be upheld;

• (c) The conviction be confirmed; and

• (d) The appellant be resentenced.

Facts

7 The appellant pleaded guilty on 29 November 2017 to an offence of recklessly inflicting grievous bodily harm. The sentencing judge summarised the facts of the matter as follows at [5]–[6] of Henry:

• 5. …It is sufficient to observe that, after consuming a large amount of alcohol, the offender struck the victim with a sword, causing very serious injuries. The sword belonged to another person who had been in an argument with the victim earlier that day. The offender was not involved in that argument and had no reason to become involved.

• 6. The offence was not premeditated, in the sense that there had not been any degree of planning. It did, however, involve the deliberate taking of the sword and a deliberate swinging of the sword “directly at [the victim]”.

8 The victim suffered extensive injuries, and were summarised by the sentencing judge as follows at [8]–[9] of Henry:

• 8. The injuries suffered by the victim are detailed in a medical report from a Dr Van Dieman, dated 21 July 2017. The injuries are extensive. They include the severing of the jugular vein and a major neck muscle. The victim also suffered a fracture to a vertebra in his neck and a compression fracture in his thoracic spine. The medical report provides a technical explanation of the injuries.

• 9. Equally significant is the Victim Impact Statement that was read out by the victim. In this statement, the victim discusses his disfigurement, disabilities, the limitations on his movement and the effect the offence has had on his social and financial life. The injuries have essentially dominated every aspect of his daily life, and will probably continue to do so for the rest of his life…

Sentencing remarks

9 The sentencing judge considered the offence to be “objectively serious” given the “nature and the extent of the injuries”.

10 In relation to the offender's subjective matters, the sentencing judge noted at the outset that the offender is an “alcoholic”, and that “[a]lcohol…is responsible for his appearance before the Court today. It is also probably a key factor in his previous offending”. The sentencing judge noted that past rehabilitation attempts had been unsuccessful, and that the offender would be able to “pursue rehabilitation in prison or after serving his sentence”.

11 The sentencing judge further noted the offender's history of mental health issues, in particular his diagnosis with a Post-Traumatic Stress Disorder. The sentencing judge considered that this diagnosis “may or may not have been a factor in his offending”, and that “[i]f it was, it was not to an extent that entitles the offender to any leniency.”

12 The sentencing judge noted that there were “indications of remorse on the offender's part”, and noted that “offender's criminal record, by its contents, has not had any effect on my decision”.

13 The sentencing judge did not make any specific remarks regarding the length of the non-parole period imposed.

The Appeal

14 The appellant submitted that the non-parole period was manifestly excessive, given that the “usual percentage range” was between 50 and 75% of the head sentence in the ACT. That range being “usual” was conceded by the respondent. The “usual” range of 50–75% has been noted in a number of Court of Appeal decisions: see Zdravkovic v The Queen [2016] ACTCA 53 at [74]; Barrett v The Queen [2016] ACTCA 38 at [52]; Taylor v the Queen [2014] ACTCA 9 ( Taylor) at [20].

Approach of other Australian states and territories

15 The appellant referred to the different approaches of the states and territories in Australia. In New South Wales, s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) allows for a minimum 75% or three quarters of the head sentence to be fixed as a non-parole period, unless there are special circumstances to increase the parole period to more than one quarter of the head sentence.

16 In Victoria, the Victorian Court of Appeal has stated that the usual range for non-parole periods is between 60–75% of the head sentence: Kumova v The Queen [2012] VSCA 212; 37 VR 538 ( Kumova).

17 In Queensland, where a prisoner is sentenced to less than three years of imprisonment, the court is required to fix a date for the offender to be released on parole: Penalties and Sentences Act 1992 (Qld) s 160B(3). There is no legislated proportion of the non-parole period.

18 In Western Australia, s 93 of the Sentencing Act 1995 (WA) provides that a prisoner is eligible to be released on parole after serving half of the term of imprisonment if the term is 4 years or less. If the term of imprisonment is more than 4 years, the prisoner is eligible for parole when the prisoner has served two years less than the total term.

19 In South Australia, there is no mandatory sentencing ratio. The South Australian Court of Criminal Appeal has noted that non-parole periods have “tended to range between 50% and 75% of the head sentence”: R v Devries [2018] SASCFC 101 at [19].

20 In Tasmania, s 17 of the Sentencing Act 1997 (Tas) permits the Court to set a parole eligibility period of no less than one-half of the period of sentence.

21 In the Northern Territory, s 53 of the Sentencing Act 1995 (NT) requires that a non-parole period be set for any person sentenced to a term of life imprisonment, or for a term of 12 months of imprisonment or longer. Section 54 of the Sentencing Act (NT) allows for a non-parole period of not less than 50% of the period of imprisonment to be imposed, but sets the minimum non-parole period at 8 months.

Appellant's Submissions

22 The appellant submitted that a non-parole period being outside the range of 50–75%, though not necessarily indicating error in and of itself, calls for scrutiny as to why such a departure has taken place. The appellant submitted that nothing in this case, either from the sentencing judge's remarks or from the factual considerations of the matter, indicates that the departure was warranted.

23 The appellant referred to the Victorian authority of Kumova, where Nettle JA (Redlich and Osborn JJA agreeing) at [6] cited the following passage of Redlich JA in R v Detenamo [2007] VSCA 160 at [26]:

A non-parole period which exceeds three-quarters of the length of the head sentence is not necessarily indicative of error as there is no fixed standard for the non-parole period. However, where a non-parole period is imposed which is unusual by comparison with other cases and having regard to the facts of the instant case and the course of the plea, reasons should generally be given, and an absence of reference to the sort of factors mentioned by Callaway JA in R v VZ invites appellate scrutiny and may reflect error…

24 The relevant passage by Callaway JA in R v VZ [1998] VSCA 32; 7 VR 693 is at [15]:

I put to one side...