Aldous v R

Court of Criminal Appeal (NSW)|2012-07-16|Before: Allsop P, Latham J, Davies J, McCallum J, Beazley JA, Harrison J

Judgment 1ALLSOP P: I have read the reasons in draft of Davies J. I agree with the orders proposed by his Honour. I agree with his reasons in relation to ground 3. In relation to grounds 1 and 2, I would prefer to express my reasons shortly assuming the background and context set out in the reasons of Davies J. 2I refer to my reasons in Williams v R [2012] NSWCCA 172. I do not wish to repeat anything I there said, beyond, first, stating once again my agreement with McCallum J (with whose reasons Beazley JA and Harrison J agreed) in Bolt v R [2012] NSWCCA 50 at [35]-[36] that the fair reading of the whole of the reasons of a sentencing judge should take place with the recognition of the then perceived orthodoxy and correctness of cases such as R v Way [2004] NSWCCA 131; 60 NSWLR 168, R v McEvoy [2010] NSWCCA 110 and R v Knight [2007] NSWCCA 283; 176 A Crim R 338; and, secondly, emphasising that this is a matter of substance and not form or linguistics. 3I should commence by noting that Mr Boulten SC, who appeared for the applicant, accepted (plainly correctly, if I may respectfully say so) that this was not one of those cases where a broader concept of "objective seriousness" for the purposes of the Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A, might be seen to drain, for the purposes of evaluation in sentencing, the subjective circumstances of content or effect. 4It can be stated that the expression of the characterisation of the offence as "slightly below the middle of the range of objective seriousness" might be seen to give precision to an otherwise necessarily imprecise evaluation. The learned sentencing judge can be seen, however, to have been faithfully carrying out the requirements of this Court for some precision in those respects: Knight and McEvoy. That said, a reading of the whole of her Honour's reasons persuades me that she came to the sentence she did by an overall consideration of all the circumstances and not by giving undue weight to the guidepost of the standard non-parole period or by structuring the sentences around it or by reference to it. 5The reality of the debate was whether her Honour was justified in an evaluative assessment of the objective criminality of the offence. This may have been expressed by reference to the words of s 54A ("middle of the range of objective seriousness") but her Honour was undertaking the entirely legitimate task of weighing and evaluating the objective criminality involved. 6The argument was that the offending was well below the middle of any range and really at the low end. If this were a demonstrably correct conclusion, the sentence would be excessive. I do not think that her Honour's evaluation was made in error, or was wrong. This was an intentional and vicious attack using a glass as a weapon to the head of a victim. It could have caused catastrophic injury. Luckily it did not; but the injury was still serious. I have no hesitation in agreeing with the evaluation of the criminality of the offence by the sentencing judge. 7On the basis of the legitimacy of the assessment of objective criminality of the offending and taking into account all the subjective circumstances that her Honour did (being accepted by Mr Boulten, again, with respect correctly, as "punctilious and fair"), the sentence was just and proportionate. 8Thus I am unable to perceive any operative error under grounds 1 or 2. 9If I be wrong about the lack of existence of any "Muldrock error", I am otherwise unpersuaded that any lesser sentence is warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3). 10LATHAM J: I agree with Davies J and I agree with the reasons of Allsop P. 11DAVIES J: The Applicant was found guilty by a jury on 10 March 2011 of wounding with intent to do grievous bodily harm contrary to s 33(1)(a) Crimes Act 1900 (NSW). On 27 May 2011 he was sentenced by Judge Woodbourne SC to a period of 3 years non-parole commencing 27 May 2011 and expiring on 26 May 2014 with a balance of term of 3 years. 12He now seeks leave to appeal against the sentence imposed on the following grounds: (1)Her Honour erred by giving determinative or primary consideration to the provision of the standard non-parole period; (2)Her Honour erred in her assessment of the objective criminality of the offending conduct; (3)The sentence is manifestly excessive.

13The facts are taken from Judge Woodbourne's findings in her Remarks on Sentence. 14The Applicant attended the Jolly Frog Hotel at Windsor at about 7.00pm with his girlfriend Sonia Lalaji and his flatmate. They registered for the poker tournament being conducted at the Hotel by the victim Ryan Turner who was employed by the Australian Poker League. 15During the evening the Applicant progressed through the early rounds of the poker competition to the final table which commenced at about 9.30pm with nine players participating. The victim took the role of the dealer on that last table so he could monitor the game. 16Throughout the evening the Applicant had drunk a number of schooners of beer. 17During play on the final table the Applicant was heard to swear by the victim. Because swearing was against the rules of the Australian Poker League, the victim gave the Applicant a few cautions. At one point the victim told the Applicant that if he swore again he would be given a ten minute break from the table. 18A couple of hands later the Applicant won a hand and swore again. The victim allowed him to claim the chips but told him that he had to take time out. The Applicant did not take this with good grace. He purchased another schooner of beer and watched the table from an elevated area of the Hotel. During this time, by virtue of the game rules, the Applicant's chips were played and diminished considerably. 19At 10.01pm the Applicant was permitted to rejoin the game. The Applicant was forced to bet on the hand and his chips were "all in". He lost the hand. The victim said "unlucky mate" and started collecting the cards in the middle of the table. The Applicant remained seated at the table and finished his beer. At 10:02pm the Applicant rocked backwards and with his right hand holding the schooner glass he struck the victim on the back of his head. 20His evidence had been that he did not know that the glass was in his hand. However, the Trial Judge instructed the jury that they had to be satisfied beyond reasonable doubt that the Applicant actually knew that he had a glass in his hand at the time he struck the victim and that he deliberately used that glass to strike the victim intending to cause him really serious bodily injury. Her Honour noted that, by its verdict, the jury clearly rejected the Applicant's version that he did not know he had a glass in his hand. It is significant in that regard that the Applicant had offered to plead guilty to the alternative count of reckless wounding, that this offer had been rejected by the Crown, and that the jury found him of wounding with intent to do grievous bodily harm. 21When finding the facts for the purpose of the sentence her Honour found beyond reasonable doubt that when the Applicant struck the victim he did know that he had the glass in his hand and that he deliberately used it to strike the victim intending to cause him grievous bodily harm. She also found that the glass was used to strike the Applicant "hard, really hard just as intended" and that a piece of glass flew across the table and hit another player in the forehead. 22The Applicant then immediately rose to his feet and threw a punch at the victim. The victim responded and threw the Applicant to the ground and a number of other people joined in to hold him down. 23The victim was ultimately taken to Windsor hospital where he was treated for a deep 10cm long laceration to the occipital scalp. He was kept at the hospital overnight for observation. He has a scar across the bottom of his hairline in line with the bottom of his ear. 24The Applicant gave evidence at the trial that he had had two light beers at home before attending the Hotel followed by eight to ten schooners during the night. The Sentencing Judge considered that that was an overestimate based on the observation of the CCTV footage, the interview with Police and the evidence of Dr Perl. The Applicant said that he was so intoxicated that he was unable to form the necessary intent required by the charge. Her Honour instructed the jury that they were required to take into account the effect of any alcohol that he had consumed and that they had to be satisfied beyond reasonable doubt that he had the intent to inflict grievous bodily harm on the victim notwithstanding the evidence in relation to consumption of alcohol by him. Her Honour noted that the jury clearly rejected, as she did, his version that he was so intoxicated that he did not form the necessary intent. 25Her Honour noted a Victim Impact Statement by Mr Turner which said that he had not recovered any feeling in that part of the area where the scar is situated, apart from a constant freezing cold sensation which is always present. The position of the scar meant that he could no longer comfortably wear a hat. He has been emotionally affected as a result of the assault, suffering sleepless nights. He resigned from working for the Australian Poker League because of his nervousness of being out in places with other people around him.

Ground 1 - Her Honour's consideration of the standard non-parole period 26Her Honour noted at the outset of her Remarks on Sentence that the maximum penalty for the offence was imprisonment for 25 years and that for an offence that fell within the mid-range of objective seriousness where the offender had been convicted after trial there was a standard non-parole period of 7 years. 27Having set out her factual findings including a discussion of the extent of any premeditation and the Applicant's mental state at the time of the offence her Honour went on to say this: For the reasons I have identified I find the offence to be more than slightly below the middle of the range of objective seriousness but I do not find it to be well below the range as suggested on behalf of the offender. The consequence of this finding is that the standard non-parole period of 7 years does not apply, and is of itself reason in this particular case not to impose such period, however the standard non-parole period does operate as a benchmark or guidepost in the exercise of my sentencing discretion. 28Her Honour then went on to have regard to the subjective circumstances of the Applicant. 29The Applicant submits that the course followed by the Sentencing Judge was erroneous in the light of what the High Court said in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. 30The Applicant argued that the structure of her Honour's consideration of the appropriate penalty suggests that she commenced by determining whether the objective seriousness fell short of the mid-range and then, having decided that it did, concluded that "the consequence" was that she should not impose the standard non-parole period. She then went on to consider the subjective features to consider how far below the standard non-parole period she should fix the sentence. This, it was submitted, was a two-stage process proscribed by the High Court in Muldrock at [28]. 31This is another in an increasingly long line of cases where sentences imposed prior to the High Court's decision in Muldrock are challenged as falling foul of what was said in that judgment. Some of the cases are collected in Zreika v R [2012] NSWCCA 44 at [36] and see also this Court's comments in Butler v R [2012] NSWCCA 140 at [26]. As Johnson J said in Zreika at [43], it is necessary to read fairly the entirety of a Sentencing Judge's Remarks to see how the standard non-parole period has been dealt with. As in Zreika the Sentencing Judge in the present case determined that the standard non-parole period was only to operate as a benchmark or guidepost in the exercise of her sentencing discretion. It cannot be said that it has been used as a starting point when her Remarks are fairly considered. Her use of the words "the consequence" do not lead to the result that it was the starting point. Her approach of using the standard non-parole period as a benchmark or guidepost is consistent with the judgment of the High Court in Muldrock: Zreika at [43]. 32After this reference to the standard non-parole period her Honour makes no further mention of it. Nor does she in any way relate the sentence she imposed to that standard non-parole period. 33It was not inappropriate for her Honour to make an assessment of the objective offending according to a scale of seriousness: R v Koloamatangi [2011] NSWCCA 288 at [18]-[19]; Zreika at [45] and [47]. 34Further, in circumstances where her Honour had said that the standard non-parole period did not apply other than as a benchmark or guidepost, that fact that her Honour then went on to consider subjective matters does not bespeak a two-stage approach to sentencing. It is entirely consistent with the correct approach of instinctive synthesis having considered all matters relevant to that synthesis including the maximum penalty and the standard non-parole period: Muldrock at [26]-[28]. 35I would reject this ground of appeal.

Ground 2 - Assessment of objective criminality 36The Applicant submits that her Honour overvalued the objective seriousness of the offence when she found that it was more than slightly below the middle of the range of objective seriousness. The Applicant submitted that the offending was well below the middle of the range with the most significant factor pointing towards the low end of the range being the degree of seriousness of the victim's injuries. Reference was made to the importance of the outcome in assessing the seriousness of a s 33 offence: R v Mitchell & Gallagher [2007] NSWCCA 296 at [27]. 37It was submitted that, without minimising what the victim suffered, the injury was relatively minor, he was not hospitalised for an extended time and was not rendered unfit for work for a protracted period. 38Where an offence lies in the range of criminality or objective seriousness involves an assessment of fact which is within the domain of the Sentencing Judge subject only to error of the House v The King type being established. Her Honour correctly identified, following R v Mitchell & Gallagher at [27], that the result of the offender's conduct is a very important aspect of an offence under s 33. Whilst the particular injury was less grave than many injuries covered by this offence the victim has been left with permanent scarring, permanent loss of proper sensation in the area and a number of emotional sequelae. With her Honour correctly taking into account matters relevant to the injuries and the objective seriousness of the offence no error is demonstrated in her conclusion that the matter is more than slightly below the middle of the range of objective seriousness. I would reject this ground of appeal.

Ground 3 - Manifestly excessive 39The Applicant submitted that, in all the circumstances, the sentence imposed was excessive. A number of matters were put forward. To some extent these overlapped with matters associated with the characterisation of the objective seriousness of the offence. The Applicant pointed also to the favourable subjective features including the Applicant's remorse, the changes he had made to his life including giving up drinking and gambling, as well as embarking on counselling. 40The Applicant pointed to particular stressors at the time of the offence including the death of his stepfather to whom he was close, the failure of his stepfather's business after the Applicant took it over, a difficult and stressful relationship with his girlfriend, long working hours and indebtedness for various reasons. 41The Sentencing Judge considered all of these matters. 42The Applicant also drew attention to three decisions of this Court, all involving s 33 offences with a glass as the weapon, to demonstrate the severity of the sentence imposed on the Applicant. They were R v Miria [2009] NSWCCA 68, R v Jenkins [2006] NSWCCA 412 and R v Bonett [2009] NSWCCA 135. 43Miria was a Crown appeal where a suspended sentence had been imposed. It pre-dated the abolition of the double jeopardy principle. The Applicant in that case had three prior convictions for violence, two of which were at hotels, and at the time of the subject offence was on a recognizance in respect of the most recent offence. This Court upheld the Crown's appeal and imposed a two year non-parole period with an additional term of two years. In imposing that sentence Grove J (with whom Blanch and Latham JJ agreed) said: [28] As is well established, the allowing of a Crown appeal against sentence is a circumstance giving rise to restraint on resentence and the new imposition is likely to be less than would have been appropriately imposed at first instance. Resentence will, of course, allow the discount for early plea of guilty as found there. 44The discount given for the guilty plea was said by the sentencing judge to be "the maximum". It is reasonable to infer it was 25%. When the discount for the early plea is regarded together with the fact that it was Crown appeal, the case provides little supports for the present Applicant's submission that his sentence was severe. 45Jenkins was also a Crown appeal pre-dating the abolition of the double jeopardy principle. The Applicant was found guilty after trial. The sentencing judge imposed a non-parole period of 2 years and 6 months with a balance of term of 2 years. The Applicant had no prior criminal record. The judge found that the Applicant was suffering depression and anxiety at the time of the offence. Although this Court found error in the way the sentencing judge approached the use of the standard non-parole period it declined to uphold the appeal. 46In reaching his view that the appeal should be dismissed Hoeben J (with whom Simpson & Barr JJ agreed) first set out what Wood CJ at CL said of the (then) proper approach to Crown appeals in R v Wall [2002] NSWCCA 42 at [70]. He went on to say: [35] The sentence passed by his Honour was very lenient and were I passing sentence, I would have imposed a longer non-parole period and a longer balance of sentence. That, however, is not the test. Although I have wavered on this issue, in the end I am satisfied that the sentence passed by his Honour was still within the range of sentences open to his Honour for offences of this kind. For that reason and being mindful of the judicial restraint to be exercised in Crown appeals, I would not interfere with his Honour's sentence. 47Jenkins provides no support for the Applicant's submission that his sentence was severe. 48Bonett was also a Crown appeal. The offender who was already serving a sentence of periodic detention for a glassing offence was convicted after trial of a further offence of glassing for which he was sentenced to a non-parole period of 5 years with an additional term of 3 years. The Crown appeal on the basis of manifest inadequacy was not upheld although the sentence was thought to be lenient - see at [38]. As the Applicant acknowledges Bonett was a far more serious case than the present. It is of almost no assistance when considering the severity of the present sentence. 49The Applicant also pointed to the JIRS statistics in relation to this particular offence. These were said to show that 50% of all offenders who received prison sentences received less than 6 year head sentences and 49% of those offenders received non-parole periods less than 3 years. 50Bearing in mind the usual reservations about the use of these statistics, even on the Applicant's own analysis of the statistics it cannot be said to that the sentence imposed on him was outside the range of sentences imposed. In addition, if one examines the statistics for offenders found guilty after trial only 27% received a non-parole period of 3 years or less. The statistics provide no support for the Applicant's contentions. 51The offence is an extremely serious one, demonstrated by the maximum penalty stipulated. This Court can have regard to the prevalence of offences of this type, known colloquially as glassings, when considering the matter of general deterrence as it is bound to do. In Miria at [16] the element of general deterrence was said to loom large for cases of this type. The Applicant had a number of subjective matters in his favour, the sentence imposed was a modest one and well within the appropriate range as judged not only by the statistics but by similar cases where the present offence was charged by reason of glassings in licensed premises.

52In my opinion the following orders should be made: (1) Leave to appeal granted. (2) Appeal dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2012

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