AM v R

7An Agreed Statement of Facts was tendered in the District Court which revealed the following. The Attack on 11 January 2010 8At about 9.00 pm on 11 January 2010, the victim, Amit Patel, was performing general caretaking duties at a high-density unit complex located at The Avenue, Mt Druitt. Mr Patel was a 35-year old Indian national residing in Australia for the purpose of studies. He was married with a young child. 9Mr Patel was one of a number of workers wheeling in residents' bins in the street to the underground car park of the unit complex. A witness, Mrs J, a 60-year old woman, had driven Mr Patel and other workers to the location in her vehicle. Mrs J remained in her vehicle, whilst the workers, including Mr Patel, moved the bins inside from the street. 10Whilst this was happening, Mrs J observed a group of persons walking up the street towards her vehicle. As they approached, the Applicant broke away from the group and walked directly towards her vehicle. Mrs J locked the car door and wound the window up. 11The Applicant attempted to open the driver's door of the vehicle. He asked Mrs J for "a smoke". She replied that she did not have one. The Applicant knocked on the car window and gestured for Mrs J to wind the window down, saying "I want a smoke now". Mrs J informed the Applicant that she did not smoke. 12At about this time, Mr Patel was walking up the ramp from the underground car park by himself. The Applicant ran towards Mr Patel. The Applicant was seen to gesture a "smoking action" towards Mr Patel. Mr Patel was seen to gesture in return that he did not have a cigarette. 13The Applicant said to Mr Patel "Give it to me, cigarettes". Mr Patel replied "I am not smoking. I haven't got a cigarette". 14The Applicant then punched Mr Patel in the face, causing him to fall backwards and onto the ground. 15On seeing this, Mrs J wound down her car window and yelled for someone to call the police. The Applicant ran back to Mrs J's car, and again tried to open the vehicle door, knocking hard on the car window, which was now closed, and demanding of Mrs J that it be opened. She said "No". The Applicant said again that he needed a cigarette. 16The Applicant then ran back towards Mr Patel, who was now in the underground car park. The Applicant ran after him. Other members of the Applicant's group followed the Applicant. 17The Applicant approached Mr Patel and punched him about 12 times. The punches caused Mr Patel to bleed and he fell to the ground. 18The Applicant then moved from the car park to the street, and then returned to the car park. 19The Applicant punched Mr Patel again, knocking him backwards and causing him to fall to the ground. 20The Applicant moved away from Mr Patel and then returned to him again. At this stage, Mr Patel was lying on the ground on his side in the car park. 21The Applicant then kicked Mr Patel about six times. He was seen to stomp twice on Mr Patel's head, whilst the victim was curled up on the ground and shaking. 22A witness then intervened and pulled the Applicant away from the victim. The Applicant fled on foot. 23Mr Patel remained lying on the ground bleeding from head wounds. Two witnesses remained with him. 24Emergency services were called and Mr Patel was attended by ambulance paramedics at the scene. Police attended and a crime scene was established. Statements were obtained from witnesses who provided descriptions of the assailant which matched the Applicant. Investigations Leading to Arrest of the Applicant 25Mrs J's motor vehicle was forensically examined. In June 2010, a palm print and fingerprint impressions found on the exterior of the vehicle were matched to the prints of the Applicant. 26CCTV footage obtained from State Rail clearly depicted the Applicant at Mt Druitt railway station on 11 January 2010. 27A number of eyewitnesses to the offence were identified. On 6 July 2010, a statement was obtained from a witness who was present with the Applicant before, during and after the offence. The witness identified the Applicant as the person who committed the offence. This person said that the Applicant had been drinking "goon" (cask wine) prior to the incident and was affected heavily by alcohol. 28On 7 July 2010, the Applicant was arrested in the Dawson Mall at Mt Druitt and was taken to the Mt Druitt Police Station. He was entered into custody. He spoke to the Aboriginal Legal Service and declined to be interviewed. The Applicant was charged with the present offence. 29The Applicant was refused bail and has remained in continuous custody since 7 July 2010.

30Mr Patel was conveyed by ambulance to the Nepean Hospital, where he was attended to by a neurosurgeon. A cerebral CT scan on admission showed: (a) traumatic subarachnoid haemorrhage to the left frontal and occipital lobes; (b) right frontal contusion; (c) right sub-cortical contusion; (d) diffuse axonal injuries in corpus callosum; (e) bilateral medial wall orbital fractures; and (f) bilateral nasal fractures. 31Mr Patel was admitted to the Intensive Care Unit of the Nepean Hospital and received treatment. On 1 February 2010, he was conveyed to the Westmead Hospital Brain Injury Unit, where he underwent a comprehensive inpatient rehabilitation program. 32On 7 May 2010, Mr Patel was discharged home to the support of his wife, where he continued to be treated by way of a community rehabilitation program supervised by Brain Injury Services. 33The injuries sustained by Mr Patel included a severe traumatic brain injury. In a report dated 2 August 2010, Dr McCarthy stated that Mr Patel "had emerged from three months' post-traumatic amnesia indicating an extremely severe traumatic brain injury". Mr Patel had reduced attention and distractibility and was easily fatigued with long periods of stimulation. He had residual memory impairment and reduced planning and organisational skills. His ability to socialise was reduced, with difficulty in maintaining a topic and maintaining attention during conversations. He was also disinhibited with inappropriate behaviour in social settings. He was independent in self-care and mobility, but had high-level impairment in his balance, and a mild left-hemiparesis with some reduction in sensation as well. Mr Patel required supervision when crossing roads and in the community. He needed prompting in finding his way around, and needed supervision when carrying out simple purchases. He was more irritable and frustrated when tasks became challenging to him. He was prescribed a mood stabiliser to help with his irritability. 34Dr McCarthy expressed the opinion that Mr Patel had sustained an extremely traumatic brain injury with mild physical deficits, and substantial cognitive impairment which will be permanent. He was unfit for any form of employment for six to 12 months from August 2010 and possibly longer. 35In a victim impact statement dated 8 June 2011, prepared with the assistance of a clinical psychologist, Mr Patel outlined the range of injuries and disabilities resulting from this offence and their impact upon him and his family. Amongst other things, Mr Patel was worried about his four-year old son and the ability of the family to manage in the circumstances. He described ongoing memory difficulties and chronic head pain. He described how his wife was under great stress as a result of his condition. Mr Patel had carers with him every day when his wife was out. He could not look after himself and his son on his own. His family was experiencing extreme financial hardship as he could not work. 36Mr Patel stated that his father had been caused great stress when his father travelled from India to Australia to help his son and his family. His father had since died, a factor causing further distress to Mr Patel. 37The sentencing Judge accurately described the consequences of this offence for Mr Patel, in a manner not challenged in this Court (ROS6): "There is no doubt that the commission of the present offence has resulted in injuries occasioned to the victim which have effectively ruined the quality of his life." 38Despite the shattering consequences of this crime upon himself and his family, Mr Patel expressed forgiveness, and included in the victim impact statement the following balanced and constructive advice to the Applicant: "I want the boy who attacked me to know that he should go to school and study because education is the most important thing. He has two hands and two legs and he should get a job and make money by his own hands instead of begging and stealing from strangers."

39The Applicant was born in November 1993. As mentioned earlier, he was 16 years and two months' old at the time of the offence and 17 years and 10 months' old at the time of sentence. 40At the time of the offence, the Applicant had no prior criminal history. 41Between the commission of this offence on 11 January 2010 and the Applicant's arrest on 7 July 2010, he committed an offence of robbery in company. In due course, he came to be sentenced for that offence by way of a control order for eight months, commencing on 5 July 2010 and concluding on 4 March 2011, with a non-parole period of two months commencing on 5 July 2010 and expiring on 4 September 2010. 42Background reports dated 9 June 2011 and 7 September 2011, prepared by officers of the Department of Juvenile Justice, were tendered in evidence in the District Court. In addition, a report dated 18 August 2011 of Danielle Hopkins, clinical psychologist, was tendered in the defence case. 43The Applicant is of Aboriginal background. The sentencing Judge outlined in his remarks on sentence the Applicant's troubled and dysfunctional background and restricted educational opportunities. The Applicant had a history of alcohol and cannabis use and abuse in a fractured family setting. 44The evidence on sentence revealed that the Applicant displayed an excellent level of non-verbal IQ, which suggested a potential for study if he so chooses. The Applicant was also a gifted football player with potential to become a professional sportsman. 45His Honour recorded the Applicant's significant progress whilst in custody in juvenile detention, where he had commenced his Year 11 studies and had taken other positive and practical steps. The Applicant's goal was to become involved in personal fitness and well-being training, with a desire to undertake tertiary study in this field. 46The sentencing Judge concluded, in the light of his progress in custody (ROS14-15): "If the offender maintains his present motivation and abstains from using alcohol and illicit substances his rehabilitation prospects are good and he is not likely to re-offend in the future".

47The sentencing Judge accepted that the Applicant had committed this offence whilst under the influence of alcohol and, to a lesser extent, cannabis but observed that these circumstances were not mitigating, although they did explain how the offence came to be committed (ROS14). 48With respect to the objective gravity of the offence, the sentencing Judge concluded (ROS14): "The present offence is objectively serious. I am satisfied it falls well within the upper end of the range of seriousness for such offences. The present offence is aggravated by the fact that the offender not only punched the victim a number of times, but also kicked him a number of times while the victim was lying on the ground and, in addition, stomped twice on the victim's head while the victim was curled up on the ground. Additionally, the offence is further aggravated by the nature of the injuries suffered by the victim as a result of the commission of the present offence, together with the effect that those injuries have had upon him, effectively ruining his life. For such offences, considerations of general deterrence and punishment are of considerable importance. While personal deterrence is of lesser significance, it must not be overlooked." 49His Honour had regard to the principles contained in s.6 Children (Criminal Proceedings) Act 1987, and the statement of relevant statutory and common law principles in the decision of this Court in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 577-578 [20]-[26]. His Honour continued (ROS15-16): "Generally, in the sentencing exercise when dealing with young persons, less weight is given to general deterrence and more weight is given to the young person's rehabilitation. However, in an offence such as the present offence involving the commission of a crime of serious violence, general deterrence and punishment must nevertheless be significant considerations in sentencing a person such as the offender. However, I am satisfied that the offender lacked maturity when the present offence was committed. He was only 16 years and two months at the time. Accordingly, considerations of punishment and general deterrence may be given less weight in favour of the rehabilitation of the offender. However, the objective seriousness of the present offence is so grave that there is no option in the circumstances but to impose upon the offender a substantial full-time custodial sentence." 50His Honour took into account the Applicant's dysfunctional childhood in accordance with the principles in R v Fernando (1992) 76 A Crim R 58 at 62-64. 51The sentencing Judge applied a 25% discount for the Applicant's plea of guilty entered at the earliest opportunity, and accepted that the Applicant's expressions of remorse were genuine (ROS16). 52His Honour found special circumstances (ROS16): "Having regard to the offender's youth, the circumstance that this is his first substantial custodial sentence, and as I am satisfied that he will benefit from an extended period of supervision to assist him abstain from alcohol and illicit substances and maintain strategies to assist in his rehabilitation generally, I find special circumstances in accordance with section 44(2) of the Crimes (Sentencing Procedure) Act 1999." 53The sentence imposed was made entirely concurrent with the sentence for the robbery in company offence committed after 11 January 2010. 54The findings made by the sentencing Judge for the purposes of s.19 Children (Criminal Proceedings) Act 1987 (see [4] above), have the effect that the Applicant is serving the sentence as a juvenile offender.

The Sole Ground of Appeal - The Claim that the Sentence was Manifestly Excessive

Submissions of the Applicant 55Ms Cox, counsel for the Applicant, submitted that the head sentence imposed upon the Applicant for this offence was manifestly excessive. No challenge was made to the non-parole period, the submission being that a significantly lesser head sentence ought to have been imposed in all the circumstances. 56Ms Cox submitted that the starting point sentence, before application of the 25% discount for the plea of guilty, must have been one of nine years and four months. It was submitted that a starting point sentence of this duration, and the head sentence ultimately imposed in this case, displayed manifest excess. 57Notwithstanding the objectively serious nature of the offence, Ms Cox pointed to a number of favourable factors in this case which the sentencing Judge had acknowledged, being the Applicant's youth and immaturity, the absence of a prior criminal history, his good prospects of rehabilitation, his remorse and contrition, his deprived background and dysfunctional childhood and his early plea of guilty. 58Of course, Ms Cox did not challenge the finding of special circumstances, based upon the need for an extended period of supervision to assist in the Applicant's rehabilitation. Rather, it was submitted that error was evident in the undue length of the head sentence. 59Ms Cox acknowledged that sentencing statistics for offences of this type committed by juvenile offenders would not assist, given the small number of cases involved. Instead, Ms Cox provided a schedule of sentencing cases for offences under s.33 which predated the standard non-parole period system. The submission was made that an examination of the circumstances of these other cases, and the sentences imposed upon the offenders in those cases, fortified a conclusion that the head sentence imposed upon the Applicant was manifestly excessive. 60It was submitted that no reason was given by the sentencing Judge for what was said to be the very significant disproportion between the head sentence and the non-parole period and that this suggested disconformity, even allowing for the finding of special circumstances, supported the contention that the head sentence was excessive: Fajloun v R [2011] NSWCCA 41 at [38]. Submissions of the Crown 61The Crown submitted that it was necessary for the Applicant to demonstrate that the head sentence imposed was unreasonable or plainly unjust, and that having regard to the maximum penalty for the offence and the objective gravity of this crime, manifest excess had not been demonstrated. 62The Crown submitted that the degree of violence used and the ferocity of the attack was a material consideration on sentence (R v Zhang [2004] NSWCCA 358 at [18]), as was the extent and nature of the injuries occasioned to the victim (R v Mitchell [2007] NSWCCA 296; 177 A Crim R 94 at 101 [27]-[28]). 63It was submitted that the Applicant's offence involved an unprovoked and prolonged attack on the victim, which only ended after another person intervened to pull the Applicant away. The offence involved numerous blows, as well as kicking and stomping on the head of the victim. The violence was sustained and substantial. Significantly, the Applicant persisted in the attack even after the victim was curled up on the ground shaking. 64The Crown submitted that the sentencing Judge had proper regard to the considerable objective gravity of the offence and the Applicant's subjective circumstances, leading to a finding of special circumstances with a substantial variation of the statutory ratio to just 42% of the full term. 65The Crown submitted that this was, in reality, an overly generous reduction. It did not mean, however, that the overall term fixed by the sentencing Judge was not appropriate. 66The Crown submitted that the sentence imposed lay within the bounds of the proper exercise of sentencing discretion for this crime and that manifest excess had not been demonstrated. Determination 67The maximum sentence of 25 years' imprisonment indicates the seriousness with which an offence under s.33 is regarded: R v Zhang at [28]. As Howie J observed in R v Zamagias [2002] NSWCCA 17 at [11], the offence carries the highest maximum penalty prescribed by the legislature short of life imprisonment. 68The seriousness of s.33 offences is emphasised, as well, by the intention required to commit an offence under the section. Intention to cause grievous bodily harm is the mental element for murder, in the event that the victim died: R v Zoef [2005] NSWCCA 268 at [113]; R v Mitchell at 101 [27]. It is this mental element that makes an individual offender liable to a maximum penalty of 25 years, as opposed to 10 years for a s.35(2) offence of recklessly inflicting grievous bodily harm: R v Mitchell at 101 [27]. 69There is a breadth of conduct and consequences comprehended by s.33: R v Williams [2004] NSWCCA 246; 148 A Crim R 325 at 336 [51]; Heron v R [2006] NSWCCA 215 at [54]. 70It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209; 188 A Crim R 331 at 356 [137], 360 [160]-[162]. 71The extent of injuries sustained by the victim of a s.33 offence is of great significance in assessing the objective gravity of the offence: R v Mitchell at 101 [27]-[28]. Clearly, the imposition of brain injury as a result of direct and sustained attacks to the head of the victim elevates the gravity of the crime: R v Kirkland [2005] NSWCCA 130 at [36]; R v Bobak [2005] NSWCCA 320 at [32]; R v Mitchell at 101 [28]. 72However, the objective gravity of a s.33 offence is not determined solely by consideration of the injuries caused, with all the circumstances of the offence being relevant: Testalamuta v R [2007] NSWCCA 258 at [31]. 73The absence of planning and premeditation is relevant to objective gravity, although this feature may be diminished (as a factor favouring the offender) given the requisite intention for a s.33 offence: R v Zamagias at [14]. This is expressly so where the attack is sustained and there are opportunities for the offender to desist from the attack but he does not do so: R v Westerman [2004] NSWCCA 161 at [17]. Likewise, where the offender does not voluntarily end the attack, but it is necessary for another person to pull him away to protect the victim: R v Zamagias at [13]; R v Mitchell at 101 [28]. 74The fact that a s.33 offence involves an unprovoked, uncalled for and unjustified attack elevates its objective gravity: Matzick v R [2007] NSWCCA 92 at [23]. An attack upon an innocent citizen who is going about his ordinary business is a crime of increased seriousness: R v Woods (NSWCCA, 9 October 1990, Lee CJ at CL, Allen and Badgery-Parker JJ, unreported). 75In the present case, the Applicant was a complete stranger to the victim. Mr Patel was undertaking his work in a unit complex and did nothing to attract the attention of the Applicant. 76Mr Patel was the innocent and unlucky victim selected by the Applicant for violent attention. There was nothing in the evidence to suggest that the attack was racially motivated. 77The mundane context in which the Applicant came to meet Mr Patel renders difficult to understand the ferocious and sustained attack which followed. The Applicant punched Mr Patel repeatedly for no good reason. The Applicant moved away from Mr Patel but returned to him, more than once, to resume the attack. The Applicant had opportunities to desist, but chose not to do so. Throughout the ordeal, Mr Patel did nothing at all to provoke or otherwise encourage the Applicant to resort to violence or to persist in the attack. 78The attack involved escalating violence against a victim whose condition was obviously deteriorating: Ashe v R [2010] VSCA 119 at [27]. At a time when Mr Patel was lying prone on the ground shaking, the Applicant attacked his head by means of kicking and stomping. By this stage, as was obvious, Mr Patel was lying virtually helpless on the ground: R v Ross [2007] VSCA 213; 17 VR 80 at 84 [23]. It seems a matter of irresistible inference that it was this phase of the offence which caused serious brain injury to Mr Patel. 79It is true, as counsel for the Applicant submitted, that no weapon was used by the Applicant during this attack. However, in a practical sense, the Applicant's feet were used as a type of weapon to attack the head of the victim. The power of blows inflicted by the feet of a young man will be substantial. Application of force of this type to the head of a prone and helpless victim will likely cause serious head and brain injury, as happened in this case. 80It was only when another person dragged the Applicant away from the victim that the attack ceased. The Applicant then fled the scene, displaying no concern for the victim. 81In R v Wright [1998] VSCA 84, Winneke ACJ (Brooking and Batt JJA agreeing) observed, at [2], that attacks involving kicking and stomping to the victim's head appeared to be "a familiar method of inflicting serious injury in modern times" which ought be regarded by the courts as "abhorrent and worthy ... of condign punishment". 82In Director of Public Prosecutions v Lawrence [2004] VSCA 154; 10 VR 125 at 132 [22], Batt JA (Winneke P and Nettle JA agreeing) observed that persons who commit such an offence "and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both". Batt JA observed (at 132 [22]), citing R v Wright at [6], that an offender's youthfulness and rehabilitation may need to take a "back seat" to specific and general deterrence where crimes of wanton and unprovoked viciousness are involved. In Taskiran v R [2011] VSCA 358, Warren CJ (Hansen JA agreeing) observed at [23] that denunciation and the need to vindicate the values of the community were factors to be added to specific and general deterrence in this respect. 83In a similar vein, Howie J (Giles JA and Fullerton J agreeing) said in R v Mitchell at 101 [29]: "Violence on the streets especially by young men in company and under the influence of alcohol or drugs is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence." 84It was necessary that both the head sentence and the non-parole period reflect the objective gravity of the Applicant's crime, as well as the need for general deterrence. The Applicant's youth was a most important factor, but the violent nature of the Applicant's crime, committed against an innocent citizen close to a public place, called for substantial weight to be given to general deterrence: AI v R [2011] NSWCCA 95 at [67]-[69]. 85At the same time, the sentencing Judge was called upon to take into account the strong subjective factors operating in the Applicant's favour. It was necessary, as well, that the sentencing Judge have regard to the protection of the public at a time when the Applicant comes to return to the community, by way of conditional liberty. 86Although it may, in some cases, be apparent from an unexplained gap between the non-parole period and the head sentence that a disproportionate and manifestly excessive head sentence has been imposed, I am not satisfied that this is the position in the present case. The gap between the two periods here is explained by the substantial indulgence extended to the Applicant after the finding of special circumstances. His Honour set a low non-parole period with an extended period of available conditional liberty, in recognition of the Applicant's youth and need for rehabilitative assistance, against a background of a dysfunctional upbringing and a stable and productive period in custody. 87I have considered the cases referred to in the schedule provided by counsel for the Applicant, keeping in mind the limited approach referred to by the High Court of Australia in Hili v The Queen [2010] HCA 45; 242 CLR 520 at 536-537 [53]-[54]. 88The present case may be distinguished from nearly all the sentencing decisions referred to in this schedule. It is common for s.33 offences to be committed in circumstances where the offender and the victim are known to each other and there is a context in which the use of violence commences. That is not the present case. This was an unprovoked attack upon an innocent stranger. 89In any event, sentences imposed upon the offenders in the schedule do not point to manifest excess in this case, even allowing for the youth of the Applicant. The use of extreme violence by a young offender, affected by alcohol, warranted a very substantial custodial sentence. This was because of the wanton and unprovoked nature of the offence itself, the sustained use of violence and the very substantial injuries sustained by Mr Patel, going far beyond the legal threshold for grievous bodily harm. 90It is the case that the Applicant will not be subject to parole supervision for a period exceeding three years after his release, by operation of Clause 228 Crimes (Administration of Sentences) Regulation 2008: R v Sellars [2010] NSWCCA 133 at [22]. This means that, if the Applicant is released to parole at the conclusion of the non-parole period, supervision by the Probation and Parole Service will take place only for a period of three years, with a further period of one year not attracting parole supervision. 91It will remain the case that the Applicant would be liable to breach of parole should he offend in that fourth year. After the benefits of a period of up to three years' supervision in the community, I do not consider that the inability, as a matter of law, for the Applicant to be supervised in the community in the fourth year constitutes a reason to interfere with the otherwise appropriate head sentence imposed in this case. 92I am not persuaded that the head sentence in this case is manifestly excessive. In all the circumstances of the case, including the circumstances of the offence and the Applicant, it has not been demonstrated at the head sentence is unreasonable or plainly unjust.

Conclusion 93I propose that leave to appeal against sentence be granted, but that the appeal be dismissed. 94GARLING J: I agree with Johnson J.

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: 20 September 2012