Anderson v R

Court of Criminal Appeal (NSW)|2019-10-09|Before: Macfarlan JA, Johnson J, Cavanagh J, MacFarlan JA

Solicitors: Self-represented Applicant Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/36977 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 11 November 2016 Before: English DCJ File Number(s): 2015/36977

EXTENSION OF TIME TO APPEAL

Whilst the applicant appears to have filed a Notice of Intention to Appeal against both the conviction and sentence on 30 November 2016, he did not file a Notice of Appeal or Notice of Application for Leave to Appeal in the period of six months thereafter during which his Notice of Intention to Appeal had effect (r 3A of the Criminal Appeal Rules (NSW)). He did not file this until 27 June 2019, although he filed a further Notice of Intention to Appeal on 23 May 2019.
The applicant seeks an order under s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) extending the time for him to file a Notice of Appeal or Application for Leave to Appeal. The Crown opposes such an extension on the grounds that (i) the proposed appeals against conviction and sentence are without merit, (ii) the grant of an extension would be likely to have an adverse effect on Mr Schon's family, and (iii) no proper explanation for the applicant's very lengthy delay has been given.
As the merits of the proposed appeals are of undoubted relevance to the exercise of the court's discretion to extend time (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [33]), I turn first to consider the applicant's prospects of success on appeal if an extension of time were to be granted.

THE PROPOSED CONVICTION APPEAL

The applicant was represented by counsel at his trial but signed the documents filed in this Court (see [7] above) on his own behalf. Moreover, he appeared for himself at the hearing in this Court.
His written ground of appeal against his conviction on Count 1 is stated in the following terms: "I pled [sic] not guilty [to] the intent part of my grievous bodily harm charge and I stand by that to this day. As there absolutely was no intent on my part."
This is a reference by the applicant to the fact that at the trial his counsel indicated to the Court in the presence of the jury that he accepted his guilt on the statutory alternative charge to Count 1, namely, causing grievous bodily harm while being reckless to causing actual bodily harm (s 35(1) of the Crimes Act). As expressly stated by his counsel to the jury in address, the applicant's sole contention at trial was that he did not have, and the Crown therefore failed to prove beyond reasonable doubt, an intention to cause grievous bodily harm to Mr Schon.
The applicant's written submissions on appeal are in the following terms: "I absolutely did not mean to do this and it was a mistake on my behalf of which I am now paying dearly for. I say to this day I was under attack from this man coming down or off the drug ice and I simply defended myself. I admit I went a little bit too far wholeheartedly but I honestly just lost control for a while and was not in control of my actions. I was not thinking I just acted out of fear for my safety and lost control. I did not think to stop until it was too late. I am deeply sorry for my actions and regret what I did everyday. I am deeply remorseful and sorry for my actions. I am really sorry to the family and if I could take it back and change it. I would. Unfortunately I can't. And now all I want is too express my remorse and my day in court to plead my case and find out where I stand. Your co-operation would be deeply appreciated."
The suggestion in these submissions that the applicant "simply defended" himself was not reflected in his case at trial or in his filed ground of appeal against conviction (see [11] above). Nor did the evidence at the trial (referred to below at [17] to [22]) leave room for any possible argument that the applicant was not guilty on Count 1 because he acted in self-defence. In particular, it is clear that the applicant at least had the option to ensure his safety by leaving the house. This was reflected in his address to this Court in which he referred to himself as having the choice of "fight or flight" and that he "chose to fight". In these circumstances, the possibility of a defence of self-defence being available should not be entertained on appeal.
In the absence of any other identifiable specific ground of appeal, the Crown, quite properly, proceeded on appeal on the basis that the applicant relied upon the ground that his conviction on Count 1 was "unreasonable, or [such that it] cannot be supported, having regard to the evidence" (s 6(1) of the Criminal Appeal Act).
As is well-established, determination of such a ground of appeal requires the court to conduct an independent assessment of the whole of the record of the trial, considering both the nature and quality of the evidence, and to determine: "whether, notwithstanding there is evidence upon which a jury might convict, it can be said that it would nonetheless be dangerous in all the circumstances to let the verdict of guilty stand: M v The Queen (1994) 181 CLR 487 at 492; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. The question is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113]. In answering the question this Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt, or the consideration that the jury has had the benefit of having seen and heard the witnesses: M v The Queen at 493; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [23]" (Kaddour v R [2019] NSWCCA 90 at [128]).

The evidence at the trial

In its case, the Crown tendered a record of an interview that the police conducted with the applicant ("the ERISP"). In the answers recorded in it, the applicant said that he and Mr Schon had been friends and had known each other for about 10 years. He said that he stayed the night at Mr Schon's home on 30 December 2014 and that in the morning Mr Schon asked him to leave. The following extracts from the Crown's summary of the trial accurately summarise the applicant's description recorded in the ERISP of what then occurred: "24. The applicant got up to leave and the victim took a swing at him. The applicant said he could not clearly remember what happened then, but he threw Alex onto the ground and 'fuckin hit him' (A151). The applicant said he could not say clearly how it happened, except that Alex ended up on the ground. Alex was not a good fighter and he may have just lost balance somehow, or he (the applicant) may have pushed him to get him away (A164). The applicant hit Alex in the face when he was on the floor. The applicant said he hit him about five times with his hand (A220, 225-227, 315). He hit him around his left eye (A223). When he hit Alex, Alex was not doing anything. The applicant thought he may have hit his head when he fell back onto the concrete. He wasn't fighting back or saying anything. He was just breathing 'really heavy'. His eyes may have been blinking (A165-175). He may have tried to get up at one stage but he did not get up (A340-343). … 26. The victim was still on the floor and the applicant thought he was conscious and would wake up sooner or later. The applicant was 'pretty pissed off' and went to look for his shoe (A182). The applicant said he was 'shittin meself', he couldn't believe what had happened, it happened so quickly. He found one of his shoes … but couldn't find the other, so he stayed there for 20 minutes looking for his shoe. He looked everywhere and even turned the bed upside down to look under it. He was 'spinning out a [little] bit', and then took Alex's wallet, his phone and keys because he'd had enough of him 'fuckin me around'. The applicant thought he could use Alex's license number and put his name on the fine (A182-184). He took Alex's phone because it had a camera on it and he didn't have a camera phone, but he took his keys just out of spite. After 20 minutes the applicant left the house and the female, Nyah left with him (A184). … 28. The applicant was asked (later in the interview) about what happened after the victim hit the ground. The applicant said he fell in the doorway at the back of the unit, onto a concrete surface (A301-305). When the victim first went to the ground the applicant kicked him a few times (A313-315). The applicant kicked him with the heel of his bare feet about five times (he demonstrated in the interview - Q&A 314). He kicked him around the left eye. The applicant agreed that when he said he 'kicked him' he demonstrated a stomping motion (A323). He agreed he stomped on him (A324). He then hit him five times (A315). The applicant said the victim's hands were by his side when he was stomping on him. He wasn't trying to cover his head or face (A332)."
The only other part of the Crown's case which needs to be referred to for present purposes is the evidence concerning the consequences to Mr Schon of the applicant's assault on him.
First, Mr Schon's mother, Mrs Schon, gave evidence that on 31 December 2014 she was called to Westmead Hospital to identify her son. She said that he was on life support and was initially in intensive care. He was subsequently transferred to the Brain Injury Unit at the hospital where he remained until March 2016. When released from hospital he was taken to a nursing home where he presently remains. Mrs Schon said that he is unable to lift his head, walk, talk or eat and that will never be able to move.
Secondly, there was considerable medical evidence of Mr Schon's condition. It is sufficient to refer to the report dated 30 September 2015 of Dr Joseph Gurka, head of the Brain Injury Rehabilitation Service at Westmead Hospital. In it, Dr Gurka stated that Mr Schon remained in a "minimally conscious state", requiring a "tracheostomy tube for airway protection", and "enteral feeding tube inserted into his stomach through the abdominal wall". He is unable to take any food orally and is "incontinent of both bladder and bowel function". Dr Gurka's report continued: "In summary Mr Alejandro Schon is a 42 year old man who sustained an extremely severe traumatic brain injury when assaulted on 31 December 2014. As a result of his brain injury he has been left with severe physical, cognitive, and communicative impairment with a high level of disability necessitating full care of 24 hours per day. As it is now 9 months since his injury the prognosis for any future improvement and recovery in Mr Schon is extremely poor. Mr Schon has an acquired brain impairment and disability of a permanent nature. He is likely to live the rest of his life in a nursing home."
The applicant gave evidence in the defence case. His evidence-in-chief included the following: "Q. And what do you say about the source of the injuries that Alex suffered? A. So I'm not pleading guilty to the intent. I plead guilty - I admit that I caused those injuries. That's not what I'm talking about, those injuries, but what I'm pleading is that I intentionally did it - I didn't intentionally do it. You know? I plead guilty to a grievous bodily harm. I..(not transcribable)..I caused those injuries, but I'm not saying that - I'm saying that I didn't intend to do it intentionally, know what I mean? … Q. Did you intend to cause those injuries? A. Not at all. Not at all, mate. I didn't have no time to think, you know. One minute we're having a little argument, whatever, you know what I mean, and boom, then he ended up on the ground. I don't even know how he ended up on the ground. Then I just automatically - I don't know what come over me. Something went over, then I just, you know - and that's when I hit him, you know what I mean. But I didn't even have time to think, mate, you know what I mean? There's no way I would've done that."
His cross-examination included the following questions and answers: "Q. Once he's on the ground, you punch[ed] him five times? A. Yeah. Q. Sorry, you stomp[ed] on him first. Is that right? A. That is right, yeah. Q. You're saying it might have been three times, not five times? A. Yeah. Q. You punched him after that? A. Mm. Q. How many times did you punch him? A. I didn't intentionally do it. It just happened. I had so much adrenaline going through me, I just exploded. That's what I'm saying. Now, there's no intent here, you know what I mean? Q. You punched him around the left side of his face? A. Yep. … Q. You couldn't be certain that all of your stomps landed in the same spot? A. No. Q. Would you accept that you must have stomped on his rib cage? A. No, not at all. Q. You know that he's got five broken ribs? A. I heard something about ribs, they were saying something about ribs, but I don't know how that happened. I don't know how that happened to his ribs, I don't know. I don't know what happened there. … Q. I want to suggest to you that you stomped on him and you stomped on his chest area? A. I totally deny that I stomped on his chest area. Q. You must have A. I totally-- Q. --punched him around the mouth area? A. I think it was more like the eye. Q. But you are certainly prepared to accept that you punched him multiple times to his head? A. Yes, I am. Q. You know he got a serious brain injury? A. Unintentionally, unintentionally. Q. You know he got a serious-- A. Yeah, I do. Q. --brain injury? A. I do, yeah. Q. You know that you must have used a fair degree of force? A. Yeah, yeah."

The merits of the proposed conviction appeal

As indicated in [12] above, the only issue at trial was whether the Crown proved beyond reasonable doubt that when assaulting Mr Schon, the applicant intended to cause him grievous bodily harm. As to this issue, it is in my view clear that, having heard the medical evidence as to Mr Schon's injuries and the applicant's evidence as to how they were inflicted, it was open to the jury to conclude beyond reasonable doubt that the applicant intended to cause Mr Schon grievous bodily harm. The applicant admitted in his ERISP that whilst Mr Schon was on the ground the applicant subjected him to a prolonged beating by punching him to the face multiple times and stomping on his head multiple times. When asked in his ERISP how he thought that blood came to be on the heel of one of his shoes, the applicant said: "Mate I told yah, I fuckin stomped on his head" (answer to question 414). Elsewhere in the ERISP (see [28] quoted in [17] above), he said that he stomped on Mr Schon with a bare foot but in cross-examination he was not sure if he had shoes on but he thought that he did not. On sentence her Honour found that the applicant had used the heel of his shoe to stomp on Mr Schon.
Although in evidence at the trial (see [22] above) the applicant denied that he had stomped on Mr Schon's chest area, the medical evidence established that Mr Schon had five broken ribs. The only possible source of these injuries was the attack on him by the applicant.
It was for the jury to determine the intent with which the applicant did his admitted acts. It was entitled to infer that he had the proscribed intention from his actions (Bahri Kural v The Queen (1987) 162 CLR 502 at 504; [1998] HCA 16). An inference of the requisite intention was in my view an inevitable consequence of the applicant's acts.
In conclusion, I note that in his oral submissions to this Court, the applicant criticised his trial counsel for not acting on instructions that the applicant allegedly gave to him to rely upon the applicant's good character at the trial. Assuming such instructions were given, a decision by his counsel not to act on the instructions was readily explicable as a sensible forensic decision, bearing in mind the applicant's extensive criminal record to which I refer at [30] below (see R v Birks (1990) 19 NSWLR 677 at 683-4; 48 A Crim R 385; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [20]). The applicant's contention would not therefore assist him on his proposed appeal.
In these circumstances, it is clear that the guilty verdict on Count 1 was not unreasonable for the purposes of s 6(1) of the Criminal Appeal Act. An appeal on that basis would therefore have no prospect of success.

THE PROPOSED SENTENCE APPEAL

In the absence of any more specific ground of proposed appeal being proffered by the applicant, the Crown has, again quite properly, treated the proposed ground of appeal as one of manifest excess. In the absence of demonstration of specific error, it is necessary in order to establish that ground to demonstrate that the sentence appealed against was "unreasonable or plainly unjust" (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]).

The sentencing judgment

The sentencing judge concluded her observations on the objective seriousness of the Count 1 offence as follows: "The offence is objectively serious. I am satisfied it falls well within the upper end of the range of seriousness for such offences. It is aggravated by the fact that not only did the offender punch the victim and render him unconscious, he then punched him a further five times whilst he lay unconscious on the ground and he stomped on his head using the heel of his shoe to cause maximum damage. The offence is further aggravated by the extent of injuries suffered and by reason of the fact that the assault took place in the victim's home. I have taken into account in arriving at that assessment that it was a spontaneous event and no weapon was used, other than the heel of the shoe to inflict maximum injury. The impact upon the victim has been profound and the impact on his family has also been substantial in that they attend the nursing home every day praying for a miracle. The lives of the victim's elderly parents have been impacted upon significantly. His siblings and in-laws have likewise suffered as a result of the trauma of seeing the victim on the night of his injuries and attempting to provide whatever support they can through this ordeal, not only to the victim but to the victim's elderly parents also."
Her Honour then made the following findings: 1. The applicant has a chronic paranoid schizophrenia condition, the unremitting ongoing nature of his symptoms being due in large part to his non-compliance with treatment regimes. 2. There was no objective evidence of the applicant suffering any psychotic symptoms which impacted on his moral culpability for the offence. 3. The applicant has a "lengthy criminal history in New South Wales" which "contains convictions for significant acts of violence". 4. The applicant showed "very little by way of remorse". 5. The applicant's prospects for rehabilitation are "extremely guarded" and "he [has] a moderate to high risk of re-offending".
Her Honour referred to the maximum penalty of 25 years imprisonment for the offence and the existence of a standard non-parole period of 7 years. She considered that general deterrence "need not be moderated" and that specific deterrence had a "significant role to play in the penalty to be imposed". Her Honour declined to make a finding of special circumstances. In respect of Count 2, her Honour allowed a 25% discount as a result of the applicant's plea of guilty.

The merits of the proposed sentence appeal

It is undoubted that a sentencing judge is entitled to have regard to the harm done to Mr Schon by the commission of the crime (Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [29]). As Howie J (with the concurrence of Giles JA and Fullerton J) said in R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [27]: "A very important aspect of an offence under s 33 [of the Crimes Act] is the result of the offender's conduct. The nature of the injury caused to the victim will to a very significant degree determine the seriousness of the offence and the appropriate sentence."
The catastrophic consequences to Mr Schon in the present case are apparent from [19] to [20] above. The sentencing judge had appropriate regard to them, and to their impact on the lives of Mr Schon's elderly parents and other family members. As the sentencing judge said, "[t]he impact upon the victim has been profound and the impact on his family has also been substantial in that they attend the nursing home every day praying for a miracle" (see [29] above).
The degree and nature of violence used by the offender is likewise an important consideration in sentencing. In AM v The Queen [2012] NSWCCA 203; (2012) 225 A Crim R 481, Johnson J (with the concurrence of McClellan CJ at CL and Garling J) stated at [74] that "[t]he fact that a s 33 offence involves an unprovoked, uncalled for and unjustified attack elevates its objective gravity" (citing Matzick v The Queen [2007] NSWCCA 92 at [23]).
In AM v the Queen, his Honour took into account that the attack in that case "involved escalating violence against a victim whose condition was obviously deteriorating" and that when the victim was lying prone on the ground shaking, "the applicant attacked his head by means of kicking and stomping" (at [78]). His Honour continued (at [79]): "It 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."
These observations are applicable in a general sense to the applicant's conduct in the present case.
Other matters of particular significance that her Honour also took into account in the present case were that (i) the offence was committed in Mr Schon's home, (ii) in her Honour's view both general and specific deterrence were required, (iii) the applicant's criminal history elevated the need for specific deterrence, (iv) the applicant was on conditional liberty (in respect of an offence of common assault) at the time of the s 33 offence, (v) the applicant's prospects for rehabilitation were "extremely guarded", and (vi) there was a moderate to high risk of him re-offending. Her Honour also had appropriate regard to other subjective circumstances of the applicant including his mental health history.
Taking all these matters into account, but particularly the catastrophic injuries to Mr Schon, the savagery of the applicant's attack and the legislative guideposts of the maximum penalty and the standard non-parole period for the s 33 offence, I have concluded that the sentence that her Honour imposed in respect of the Count 1 offence was within the range of those open to her to impose and was not either unreasonable or unjust. In respect of Count 2, it was in my view open to her Honour to sentence the applicant to a fixed term of imprisonment for 15 months. This sentence was in fact wholly concurrent with the sentence in respect of Count 1.

CONCLUSIONS

For the reasons appearing above, I consider that neither the proposed conviction appeal nor the proposed sentence appeal would have any prospect of success if the applicant were permitted to pursue it. In these circumstances, I consider that the extension of time sought by the applicant should be refused. The likely adverse effects on Mr Schon's family of the grant of an extension of time and the lack of a proper explanation of the applicant's delay provide additional support for this conclusion.
I accordingly propose that the application for an extension of time be refused.
JOHNSON J: I agree with Macfarlan JA.
CAVANAGH J: I agree with Macfarlan JA.

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