ANDREWS v R

PARTIES: Ashley James Andrews (Appl) The Crown

COUNSEL: P King (Appl) J Dwyer (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/2236

McCLELLAN CJ at CL SULLY J HOWIE J

FRIDAY 16 MARCH 2007 ANDREWS, Ashley James v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty in the District Court to one count alleging that on 20 February 2004 he maliciously wounded Sharna Michelle Lazer contrary to s 35(1)(a) of the Crimes Act 1900 (NSW). The offence attracted a maximum penalty of 7 years imprisonment. The applicant was sentenced to an overall term of 2 years 3 months, commencing 12 September 2005 and expiring on 11 December 2007, with a non-parole period of 20 months, commencing 12 September 2005 and expiring on 11 May 2007. The sentencing judge allowed a 25% discount for an early plea of guilty but did not find special circumstances. 2 The applicant seeks leave to appeal against his sentence. He relies upon the following grounds:

1. The sentencing judge erred in failing to find "special circumstances"

2. The sentence is manifestly excessive in all of the circumstances of the case.

3. A different, less severe, sentence is warranted and ought to have been imposed.

The facts 3 The applicant and his victim had been living in a de facto relationship which had borne a daughter named, Jahnali. The child was aged 6 months. By the time of the offence the relationship between the applicant and Ms Lazer had come to an end although they continued to have contact in relation to the child. 4 At about 4.30 pm on 20 February 2004 Ms Lazer was walking home from Tweed Heads South with her children, Jahnali and Jyrih and accompanied by a friend Ms Tahlia Rotumah. The applicant got out of a motor vehicle and came towards the group. The applicant grabbed Jahnali out of the pram. Ms Lazer told the applicant to leave the child alone and that she was taking her home. The applicant said: "I am taking her to the pub." Ms Lazer protested "she has got no nappies. You're an idiot." The applicant tried to grab the pram but Ms Lazer was able to push it away. The applicant walked with Jahnali into the hotel. 5 At the time of this incident the applicant was intoxicated. He was carrying a bottle of rum which he had partially consumed. Ms Lazer walked to a friend's house where she left Ms Rotumah and Jyrih and then returned to the hotel to retrieve Jahnali. She walked inside the hotel and confronted the applicant. She said "give me back baby" The applicant said: "Fuck off you're not having her" Ms Lazer said: "Fine, go crawl under a rock." 6 Ms Lazer returned to her friend's house where a number of people were present including Annika Rotumah. Whilst she was at the front of the house the applicant turned up with Jahnali and walked toward her. The applicant gave Jahnali to Annika and said: "What the fuck is going on?" The applicant then swung the bottle of rum he was holding and hit Ms Lazer on the head. The bottle then hit the window of a nearby car and fell on the ground. Ms Lazer grabbed the bottle and as she ran off threw it away to ensure the applicant would not hit her with it again. As she ran she heard witnesses call out: "Look out Sharna." 7 The applicant then hit Ms Lazer in the face with a long necked bottle of beer. She fell to the ground bleeding from her face. As she lay on the ground the applicant kicked her in the side of the face several times. Ms Lazer held her face and covered her head to protect herself. She is unsure what exactly happened after that. An ambulance arrived and she was taken to hospital. 8 Ms Lazer suffered injuries, which included a 3.5 cm long and 1 cm deep laceration to the nose, a further laceration to the nose l.2 cm long and .3 cm deep, a laceration over the left frontal region of the scalp 2.5 cm long and bruising over the left cheek and left shoulder. A small amount of glass was removed from the laceration to the scalp. All the lacerations were sutured. 9 It was necessary for Ms Lazer to attend hospital again on 13 April 2004 when she complained of pain and swelling to her nose. Her nose had become infected and was deviating to the left. It was discovered that her nose had been fractured at the time of the original injuries. The infection was treated with antibiotics and she was given a referral for corrective surgery to rectify the deviation to her nose.

The applicant's subjective case and other mitigating features 10 The applicant was aged 34 at the time of the offence and 36 at the time of sentence. He had a prior criminal record, predominantly for committing crimes of violence and dishonesty. He had previously assaulted the victim and had breached apprehended violence orders which she had obtained. Prior to being incarcerated in relation to this offence he had never served a term of full-time imprisonment. On 14 April 2003 he was sentenced to a term of 9 months imprisonment in relation to a number of offences. However, that sentence was suspended upon the applicant entering into a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The conditions of the bond were to undergo supervision by the New South Wales Probation and Parole Service and accept referral to drugs/alcohol authority for assessment and counselling and also programs including anger management at the discretion of the Probation and Parole Service. It would appear that the applicant did not satisfy those requirements. 11 The suspended sentence came to an end on 14 January 2004. The present offence was committed on 20 February 2004. The applicant was arrested on that day and granted bail. He absconded. He was re-arrested on 9 March 2004 and remained in custody until 19 April 2004 being a total of 41 days. He then absconded again and was not re-arrested until 16 October 2005. He has remained in custody since that date. 12 A report from Dr Nelson was tendered. He described the applicant as "an athletically built aboriginal man." He was born in Broken Hill, the middle of 5 children. He lived with his parents until the age of 10, when his parents separated and he went to live with his grandmother in Ivanhoe, NSW until the age of 12. He witnessed his parents arguing a great deal and observed physical assaults on his mother by his father. 13 At age 13 he went to the Gold Coast and lived with a "white family" until he left home at 16. That period appeared to be reasonably stable, although the move left the applicant feeling abandoned, having been displaced without his family support system. Dr Nelson concluded that this "displacement and abandonment led to feelings of frustration as well as loss and hopelessness underlying his dysthymia." 14 The applicant left home at age 16 and commenced working on the railways as a station assistant. He appears to have been steadily employed until his arrest. He did not start drinking at school because he had witnessed alcohol abuse in his family. By the age of 18 years he was drinking moderately, later becoming a heavy drinker. He was used to drinking 10 schooners at a sitting by the time he was 23. In recent years he reported to Dr Nelson that he was "working for drink." On the day of the offence he had also consumed a narcotic drug. 15 Testing revealed that the applicant had a "significant substance abuse problem." He has been analysed as having difficulties with his self-esteem. Dr Nelson formed the view that the applicant appeared to be "highly motivated to change the course of his life." Dr Nelson believed that termination of his chemical abuse would be the most productive path for the applicant towards rehabilitation. It would appear that he has been able to successfully abstain from drug and alcohol consumption whilst in custody. Unless the applicant is able to continue down this path Dr Nelson believes that his future may be difficult. However, he reported that "it is my opinion that if his substance abuse is successfully treated, his risk of future violence would be low."

The applicant's submissions 16 Although three grounds of appeal have been raised, the applicant's counsel accepted that there were difficulties in sustaining a submission that the sentence was excessive. Oral submissions were confined to a challenge to the sentencing judge's decision not to find special circumstances. 17 The applicant submitted that the sentencing judge had erred by forming a restricted view as to what constituted "special circumstances." This error was said to be reflected in the fact that the sentencing judge had limited himself to the material in the report of Dr Nelson. It was submitted that his Honour had failed to take into account all the available mitigating circumstances, including the applicant's aboriginality and the matters identified by Wood CJ at CL in R v Fernando (1992) 76 A Crim R 58. It was also submitted that the sentencing judge had placed undue weight on the fact that although, in the past, treatment had been considered it had not taken place. It was further submitted that his Honour should have given greater weight to the fact that the applicant was now highly motivated to engage the drug and alcohol rehabilitation program. If his rehabilitation was to be effective it was submitted that there was a need for a substantial period of parole. Finally it was submitted that insufficient consideration was given to the fact that this was the first time the applicant was sentenced to full-time custody. It was submitted that a custodial sentence would make him "a foreigner in his own country" thereby imposing additional hardship on him.

Resolution of the application 18 As the facts which I have recorded demonstrate, this was a brutal crime which inflicted serious injury to the victim's face with inevitable permanent scarring. Having regard to the serious nature of the crime, the overall term of the sentence was well within the appropriate range. 19 There is no doubt that a sentence of full-time custody was appropriate. The only issue of concern is the most effective approach to the applicant's rehabilitation. 20 The applicant submitted that being an Aboriginal, the decision in Fernando obliges the Court to take a more lenient approach to the applicant's sentence, including a generous exercise of the discretion to find special circumstances. 21 In my opinion this submission misunderstands Fernando, which was decided by Wood CJ at CL. As his Honour said in the later decision in Ceissman v R (2001) 119 A Crim R 535, Fernando "is not to be regarded as a decision justifying special leniency merely because of the aboriginality of the offender" [31]. Sentencing principles are non-discriminatory and are to be applied to all offenders irrespective of their particular racial or ethnic group: see Simpson J in Hickey (unreported, Court of Criminal Appeal, 27 September 1994). When one or more of the factors identified in Fernando are present they may indicate circumstances of particular disadvantage to an offender, and accordingly be relevant to the sentencing process. However, a sentence which is appropriate having regard to all of the circumstances of the case must still be imposed. 22 In Fernando Wood CJ at CL emphasised that the offender had come from a deprived background, living for a considerable time on an isolated mission property. This matter was not only relevant in understanding, with a number of other matters, how he came to commit the offence, it was also relevant to the severity for that offender of his incarceration in a conventional prison. This feature is not present in the background of the present offender. It is true that the history of alcohol abuse and the fact that the offence was committed when the offender was intoxicated was a feature of the offending in Fernando, as it was of the present case. However, regrettably, alcohol abuse is a factor in many violent crimes, whatever the racial background of the offender. 23 In the present case the sentencing judge was required to evaluate whether the objective of rehabilitation would be furthered if he provided for the applicant's early release on parole. The concession involved in reducing his non-parole period could only be justified if it was likely to provide an opportunity, which the offender would utilise, to give up his excessive use of alcohol and narcotics. 24 In making that decision his Honour was entitled to consider the use which the offender had made of previous opportunities to address his drug and alcohol issues. In that respect his record was regrettably one of failure. He was sentenced on 14 April 2003 for a violent offence committed on the same victim. A 9 month suspended sentence was imposed on condition that he accept referral to counselling for drug and alcohol issues and anger management. He failed to comply with the condition. When the applicant was granted bail in respect of the present offences it was on condition that he enter a drug rehabilitation centre (Benelong Haven Kempsey) within 48 hours of release. He failed to do so. 25 Dr Nelson's reported that in prison the applicant had been alcohol and drug free and offered the opinion that he had "been continually frustrated" in his efforts to enter rehabilitation programs. However, the applicant did not give evidence and, in my opinion, the sentencing judge could give little weight to Dr Nelson's opinion: R v Qutami (2001) 127 A Crim R 369 at [58] and [79]. 26 In these circumstances in my view his Honour was entitled to conclude that a finding of special circumstances and a longer period of supervised parole was not appropriate. The evidence inevitably led to the conclusion that the applicant would not avail himself of the opportunity. Furthermore, when sentencing the offender his Honour was mindful of the contribution of drugs and alcohol to the commission of the offence, accepting that they operated to mitigate the sentence. It was important for his Honour to ensure that these matters were not "double counted" when determining the appropriate non-parole period: R v Simpson (2001) 53 NSWLR 704 [47]-[63]. 27 It was important in this case that after considering all of the relevant circumstances the offender's criminality should be visited with an appropriate sentence, including an appropriate period of full-time custody. To my mind any lesser period without parole than the 20 months his Honour imposed may have led to an inappropriately low sentence. There can be no doubt that the applicant will require supervision on release. If a greater period than the 7 months which his Honour imposed was required, it may have been appropriate to increase the overall term of the sentence but not reduce the non-parole period. It must also be remembered that if, as the applicant asserts, he is now genuinely determined to deal with his drug and alcohol problems, the completion of his parole period will not preclude his continuing participation in appropriate treatment and counselling programs. 28 In my view there was no error in his Honour's failure to find special circumstances.

Orders 29 Although I would grant leave to appeal, I would dismiss the appeal. 30 SULLY J: I agree with McClellan CJ at CL. 31 HOWIE J: I agree with the orders proposed by McClellan CJ at CL for the reasons given by him. **********

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