AYTON, Darren Lee v R

R v Swan [2006] NSWCCA 47 R v Elchami (NSW CCA, 15 December 1995, unreported) Carrion v R [2007] NSWCCA 174 CASES CITED : Lowe v The Queen (1984) 154 CLR 606 Postiglione v R (1997) 189 CLR 295 R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 R v Colgan [1999] NSWCCA 292 R v Boney [2001] NSWCCA 432

PARTIES: Darren Lee AYTON (Appl) REGINA (Resp)

COUNSEL: J Manuell (App) J A Girdham (Resp/Crown)

SOLICITORS: J Witmer - LAC (App) S Kavanagh - DPP (Resp/Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/5225

HODGSON JA KIRBY J BUDDIN J

Wednesday 13 February 2008 Darren Lee AYTON v REGINA Judgment 1 HODGSON JA: I agree with Kirby J. 2 KIRBY J: Darren Ayton ("the applicant") seeks leave to rely upon a notice of appeal which was filed out of time. The notice sought leave to appeal against a sentence imposed by Black DCJ on 22 November 2006 at the Lismore District Court. The application for an extension was not opposed by the Crown. Leave should be granted. 3 Mr Ayton was charged with having maliciously inflicted grievous bodily harm upon Mark Walker whilst in the company of others (s 35(2) Crimes Act 1900). The maximum penalty for such an offence is 10 years imprisonment. Mr Ayton pleaded guilty. He was sentenced to a total term of 3 years imprisonment, being a non parole period of 2 years and 3 months (commencing 30 October 2006 and expiring 19 January 2009), the balance of the term (9 months) expiring 19 October 2009. 4 Before considering the grounds of appeal, I should set out the circumstances in which the offence was committed.

The offence. 5 The Crown asserted that on the night of 24 September 2004, Mr Ayton and six others, including Ms Julie Coleman, assaulted Mr Mark Walker ("the victim"), such that he was rendered unconscious and suffered grievous injuries. The six others were mostly juveniles. Ms Coleman and one other, Deake Drinnan, were adults. Mr Drinnan was aged 18 years. Mr Ayton, at the time, was aged 23 years. 6 Mr Ayton lived in a caravan park. One gathers that Ms Julie Coleman lived in the same caravan park, she being a mature woman with a teenage son. Mr Ayton said that he regarded her "like a mother". She had been kind to him on several occasions, allowing him to stay at her home when he had nowhere to live. It appears that shortly before the assault, Ms Coleman spoke to the victim, Mark Walker. Mr Walker and his female partner lived in another caravan park some distance away. The partner had complained to Ms Coleman that she had been physically abused by Mark Walker. Ms Coleman confronted Mark Walker with these allegations. An angry exchange took place, culminating in Mr Walker spitting at Ms Coleman. 7 Ms Coleman returned home. She and her son approached Mr Ayton. She described what had occurred. Mr Ayton had been drinking. He decided, as did others who had also gathered, to confront Mr Walker. In the words of the sentencing Judge, the intention was to inflict "summary retribution upon the victim" (ROS 2). 8 Two cars were used to carry the group, including Mr Ayton, to the caravan park of the victim, which was 20 or 30 minutes away. When interviewed by the police, Mr Ayton stated his purpose in these terms: (ERISP 18) "A. I just said, 'I'll go around there and fuckin' punch him up'." 9 Having arrived at the caravan park, Ms Coleman pointed out the victim's caravan. Mr Ayton described to the police what then happened: (ERISP 20) "Q177 All right. A So I went up and knocked on his window. I said, 'Hey mate, come out here, bashin' women around, come out here, 'cause I want to bash you around'. Q178 Yeah. A Then he's come out and then I've cracked him straight in the head with me fuckin' right hand, three or four times, then he's dropped, knocked out cold, and he eventually got back up, and then the boys just at him. Q179 All right. A I walked away by then." 10 Mr Ayton was asked to elaborate. His police interview included the following: (ERISP 22) "A Top of the cheekbone there. Q196 The top of the cheekbone. And how hard did you hit him? A Oh, fuckin' as hard as I could. Q197 All right. And what's that done to him? A That's knocked him on his arse. He got back up and I just done it again, done it until he was cold. Q198 And how many times do you reckon you hit him? A About four or five. Q199 In the same way? A Yeah." 11 The victim had nothing in his hands (Q188). Indeed, when he came out, all but Mr Ayton ran away (Q189/90). Mr Ayton said: (ERISP 21) "Q190 … and I was the only one that stood there." 12 Having disabled the victim, Mr Ayton sat in the gutter. The rest of the group then joined in the attack. Some were armed with weapons including a golf club and a bottle. When the group left, the victim was unconscious. 13 One member of the group, Mr Drinnan said, in his account to the police, that the initial attack by Mr Ayton was with a baseball bat, not bare fists. The injuries themselves were certainly severe. The victim's jaw was broken. He had bilateral subdural haematomas, a scalp laceration, a fractured right eighth rib and lacerations to his ear. He also had multiple abrasions to his body and especially his face (Ex C). He had been taken to the Gold Coast Hospital Neurosurgery Unit where he had remained for four days. He was amnesic as to the circumstances in which the injuries were inflicted. When admitted to hospital he was vomiting and complaining of headaches and nausea. Once in hospital an operation was performed to reduce and fix the bilateral mandibular fracture. His left ear showed moderate to severe sensorineural hearing loss in the mid to high frequency range, which was thought to have been the result of the assault. 14 A number of witnesses, apart from Mr Drinnan, gave evidence at the sentencing hearing concerning whether Mr Ayton was, in fact, armed with a baseball bat. Mr Ayton denied having such a weapon. His Honour made the following determination concerning that issue: (ROS 3) "There was an issue which I dealt with as to whether Mr Ayton had used a baseball bat. I, on the evidence put before me, was not satisfied beyond reasonable doubt that he had, but on his own account he explained that he had used quite sufficient force to achieve what in fact happened to the victim with his own fists. Again, I do not think it is appropriate to be satisfied that this offender knew that one or more of the other offenders was intending to use a weapon upon the victim with devastating effects." 15 The police, when interviewing Mr Ayton, enquired about his drinking on the day of the assault. There is no doubt that he had consumed a good deal of alcohol. The interview included the following statement by Mr Ayton: (ERISP 27) "Q251 So by this stage, you had twelve, so you were, what, but you knew what you were doing? A. Yeah." 16 His Honour adopted the Crown's characterisation of the offence as "very serious" (ROS 1). He added: (ROS 2) "Now the victim suffered serious injuries, and they are set out (in) the medical reports and it is appropriate that I say, in my view, what this offender did was capable of causing those injuries, but I am not satisfied he necessarily did, although, in my view, that does not make much difference. I have no doubt others joined in afterwards, they may or may not have used a thing such as a golf club or a bottle. The gravity of this offender's conduct is that what he did on his own account was capable of producing the results that in fact happened. .." The applicant's subjective case. 17 Mr Ayton was born in Victoria. At the age of 10 his parents separated. There was a dispute as to custody. He was placed in foster care, but ran away. His education was disrupted. At an early age he turned to drugs and alcohol. He also committed a number of offences, including stealing motor vehicles and theft. He was placed on probation and subjected to supervision. 18 At the age of 18, Mr Ayton completed a drug rehabilitation programme. He started a course at TAFE to obtain a builder's certificate. Dr Nelson recorded that he completed that course over three and a half years (Ex 2). The applicant's evidence before his Honour, on the other hand, suggested that he still had six months left before obtaining his builder's licence (T11: 22.11.06). 19 However, at the age of 22 years, Mr Ayton began associating with a group that drank. He again began drinking. On 15 March 2004, he was convicted of breaking and entering to commit a serious indictable offence, receiving and driving whilst disqualified. He was also convicted of common assault. He was sentenced to imprisonment for 12 months commencing 4 March 2004 (expiring 3 March 2005). There was a non parole period of 3 months (expiring 3 June 2004). The present offence occurred on 24 September 2004 whilst Mr Ayton was on parole. That is a serious matter of aggravation. 20 Mr Ayton entered an early plea (18 October 2005) attracting a 25 percent discount. The sentencing hearing was, nonetheless, delayed. He was sentenced on 22 November 2006. There were a number of reasons for the delay, including Mr Ayton failing to attend an appointment and to appear. 21 A number of references were tendered, including a letter from a youth worker at the St Joseph's Youth Support Service at Murwillumbah. It was suggested that Mr Ayton had been co-operative and pleasant and was keen to maintain employment. A report was also tendered from Dr Nelson, psychologist, to which I will refer below.

The Notice of Appeal. 22 The notice of appeal included the following grounds: "1. The sentencing judge erred by placing too much weight on general deterrence; 2. The sentencing judge erred in his failure to find special circumstances; and 3. The applicant has a justifiable sense of grievance at the disparity between the sentence imposed on him and the sentences imposed on his co-offenders." 23 Let me deal with each ground in turn.

Ground 1: The sentencing judge erred by placing too much weight on general deterrence. 24 Attention was drawn to the following remarks on sentence, made after his Honour had described the circumstances in which the offence had been committed: (ROS 3) "Now conduct like this has to be deterred. People cannot go round forming what might be described as punitive expeditions for real or imagined slurs upon other people, and in particular to inflict the degree of violence upon the victim here without, as it were, any form of discussion with the victim as to whether he acknowledged his conduct, just has to be stated to show how undesirable and inappropriate such conduct is." 25 Dr Nelson, a psychologist, had examined the applicant and provided a report (Ex 2). He conducted what was termed "the Kaufman Brief Intelligence Test", producing a score for verbal and non verbal intelligence. Mr Ayton's composite score placed him in the "lower extreme" (first percentile) of the general population. Dr Nelson's conclusion included these words: (Ex 2: p7) "3.1(e) Mr Ayton's inability to remember his siblings ages, when asked, is consistent with his low IQ as was his inability to remember much from his school years. These test results also strongly suggest that he is functioning, cognitively, like a child between the ages of 6 and 15 years regarding his reasoning ability and his capacity to recall and make use of facts in understanding the world around him." 26 The applicant drew attention to the following statement which was said to be the principle to be applied in the context of such a report (R v Swan [2006] NSWCCA 47, per Spigelman CJ): (at [16]-[17]) "The ways in which mental illness or intellectual handicap may affect the exercise of the sentencing discretion were summarised by Sperling J in R v Hemsley [2004] NSWCCA 228 as follows: '[33] Mental illness may be relevant - and was relevant in the present case - in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254] [ R v Henry (1999) 46 NSWLR 346]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43]. [34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42]. [35] Thirdly, a custodial sentence may weight more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].' These considerations apply equally to the head sentence as to the non-parole period." 27 His Honour emphasised that Mr Ayton was older than most of the co-offenders and was to be sentenced as an adult. Many of the co-offenders were juveniles and had been dealt with by the Children's Court. Counsel for the applicant submitted, in these circumstances, that his Honour mistakenly had regard to the applicant's chronological age, disregarding his retardation. It was suggested that his mental capacity "may have resulted in unquestioning attachment to the Coleman family and his impulsive willingness to participate in the assault". 28 The Crown responded by asserting that his Honour had certainly not overlooked Dr Nelson's report. Indeed, he had moderated the sentence by reason of its findings. Referring to that report, and the question of parity with the sentence of a co-offender Deake Drinnan, his Honour said this: (ROS 4/5) "Further, there is the material relied upon by the defence at p5 of Dr Nelson's report. I accept that that is a relevant factor and I make it quite clear that but for the sentence which was passed on Deake Drinnan, and but for the matters at p5 of Dr Nelson's report, I would have regarded the head sentence, which I considered appropriate in this case, which I have eventually found appropriate, would have been higher. I, to a much lesser extent, have also borne in mind the sentences on the juveniles because the authorities are clear that the regimes are different." 29 Dealing with these submissions, the Kaufman Brief Intelligence Test is, as the name suggests, plainly not comprehensive. It is designed, no doubt, to give an indication of the level of intelligence. Whilst Mr Ayton performed poorly in that test, there were a number of matters that suggested a reasonable level of comprehension. Dr Nelson in his report remarked that Mr Ayton's speech "was clear and reasonably well articulated and he spoke in a normal, unpressured manner" (p6). Dr Nelson also said this: (Ex 2: p3) "2.1.4(a) The form of Mr Ayton's thought did not reveal any signs of language disturbance and he was able to remain on track, logically, during his descriptions of his life and current situation." 30 Dr Nelson added that Mr Ayton seemed completely alert throughout the course of the interview, although he showed difficulty with his long-term memory. The history taken by Dr Nelson included a reference to his successful drug rehabilitation and the TAFE course to obtain a builder's licence. His answers when interviewed by the police were responsive. 31 There was obviously some tension between the picture that emerged from this material and the result provided by the Brief Intelligence Test. Dr Nelson, in his report, did not comment upon these issues and did not give evidence at the hearing. 32 In R v Elchami (NSW CCA, 15 December 1995, unreported) Allen J (Hunt CJ at CL and Dunford J agreeing), said this: (p6) "The full intelligence quotient, as assessed by extrapolation by Mr Taylor, was 76. Counsel for the applicant then puts to us the bold submission that an intelligence quotient of 76 necessarily brings an offender within the principles established by cases such as Scognamiglio (1991) 56 A Crim R 81, Champion (1992) 64 A Crim R 244 and Regina v Letteri (CCA, unreported, 18 March 1992). The principle which counsel urged is established by those cases is that 'Reduced intellectual capacity has been held to require less weight to be given to considerations of general deterrence'. Time and time again this Court has had to say that that line of authority does not establish any such general principle. The principle in respect of below average intellectual capacity, so far as it may have any bearing upon the present case, is that the extent of the diminution of capacity can be such that it would be recognised by the community, being aware of it, that in being sentenced the offender is being given a lesser sentence than otherwise would be the case regard being had to the diminished responsibility which he had for the crime he committed, that diminished responsibility flowing from his diminished intellectual capacity." 33 More recently, in Carrion v R [2007] NSWCCA 174, the Court was concerned with the supply of drugs on a small scale by a person with a measured IQ of 75. The sentencing Judge said this: (par [11]) "I do not regard this assessment as being of relevance when considering the question of deterrence. This man had ample intellectual capacity to know exactly what he was doing and to realise the criminality of it." 34 The Court concluded that there had been no error. The offender had ample intellectual capacity to know exactly what he was doing and to recognise the criminality it involved. 35 Here, I believe the same can be said of Mr Ayton, as his Honour recognised. I do not doubt that Ms Coleman was an important figure in his life. However, this was not an impulsive act. The applicant, and those with him, had to travel by car for 20 to 30 minutes before reaching the victim's home. Mr Ayton knew exactly what he was doing and that it was wrong. 36 I would dismiss the first ground. Ground 2: The sentencing Judge erred in his failure to find special circumstances. 37 His Honour made the following comment on the issue of special circumstances: (ROS 5) "Now it is urged upon me that I should find special circumstances, and again reliance is placed upon the report of Dr Nelson. I regret to say I do not find anything in that report to amount to special circumstances. I have considered the material also tendered by the defence … " 38 Here, counsel for the applicant identified three matters which, individually or in combination, warranted a finding of special circumstances: · First, the applicant's intellectual disability. · Secondly, the need to address behavioural problems arising from a difficult childhood and substance abuse. · Thirdly, delay in sentencing (amounting to almost two years) during which time the applicant had matured and responded well to a Youth Outreach programme. 39 It was submitted on behalf of the applicant, that there had been error by the sentencing Judge in the exercise of his discretion. The Crown asserted that there had been no error. The Crown said the Judge had addressed the issue and come to a view. That view was open. The delay, for instance, was in substantial measure the consequence of Mr Ayton's conduct. 40 Whilst it may have been open to his Honour, had he thought it appropriate, to find special circumstances on one or more of the bases identified, there was no error in not having done so. Amongst other things, his Honour was dealing with a serious offence in which he was obliged to fix a non parole period which adequately reflected the criminality of the offender. The parole period provided for the supervision which his Honour believed appropriate. 41 I would dismiss this ground.

Ground 3: Parity. 42 A comparison between Mr Ayton's sentence and that of his co-offenders demonstrated that Mr Ayton's sentence was significantly higher, such that he was left, according to counsel for the applicant, with a justifiable sense of grievance. Reference was made to the well known authorities of Lowe v The Queen (1984) 154 CLR 606 and Postiglione v R (1997) 189 CLR 295. The principle to be applied was succinctly stated by Brennan J in Lowe in these terms: (at 617) "The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case." 43 Written submissions on behalf of the applicant helpfully included a table which readily permitted a comparison between the offenders and their respective sentences. Mr Ayton was 23 years at the time of the offence (25 at the time of sentence). He was the oldest male, the other adult male being Deake Drinnan who was 18 years old. The remaining male offenders were juveniles, one being 14 years, another 15 years and two 17 years. Ms Coleman's age was not known, but it may be inferred that she was a mature woman in her thirties. Mr Ayton was the only offender with a significant criminal record, although Ms Coleman had been placed upon a bond. Mr Ayton, it will be remembered, served a period of imprisonment imposed on 15 March 2004, and was on parole at the time of this offence. 44 The sentences can be summarised as follows: · Mr Ayton (Black DCJ) a 3 year term of imprisonment with a non parole period of 2 years and 3 months. · Deake Drinnan (McGuire DCJ) a 2 year term of imprisonment with a non parole period of 18 months, suspended upon the offender entering a s 12 bond. · Julie Coleman (Black DCJ) imprisonment for 1 year 8 months, suspended upon entry into a s 12 bond. · The juveniles (Children's Court) were either placed on bond or subject to a suspended control order. 45 The sentences imposed upon the juveniles were not irrelevant to the issue of parity, but were of limited assistance, both because of the respective ages of the offenders and the different regime applied in the Children's Court (R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314; R v Colgan [1999] NSWCCA 292; R v Boney [2001] NSWCCA 432). The sentencing Judge recognised their limited relevance (ROS 5). 46 The applicant's complaint, therefore, was mainly directed towards the sentences imposed upon Deake Drinnan and Ms Coleman. Deake Drinnan had been sentenced by McGuire DCJ, whose remarks were available to the sentencing Judge. It was plain from those remarks that the position of Mr Drinnan was quite different from that of Mr Ayton. Mr Drinnan had not personally attacked the victim. He had no criminal history. His Honour found good prospects of rehabilitation. He was 18 years old at the time of the offence. Importantly, he gave to undertaking to give evidence against the applicant, which he duly did. That undertaking was the more impressive because he had been subjected to threats of reprisal. In view of these differences Mr Ayton cannot, in my view, have a justifiable sense of grievance arising from the more lenient sentence imposed upon Mr Drinnan. 47 The offender, Ms Julie Coleman, was, as mentioned, a mature woman. It may fairly be said she was at the centre of the storm. But for Ms Coleman and her young son having recounted her grievances against the victim to Mr Ayton, he would not have become involved. She was charged with the same offence as Mr Ayton. She also faced an additional charge of pervert the course of justice. The latter offence was described by the sentencing Judge as "not the worst case" of its kind. This offence ultimately attracted a 6 month term of imprisonment which, along with the penalty imposed in respect of the wounding, was then suspended. 48 However, there were a number of significant differences between the criminality of Mr Ayton and that of Ms Coleman. First, Black DCJ made a number of findings in respect of Ms Coleman's role. She had not personally carried out any physical act of violence (ROS 2). Further, his Honour was not satisfied that she had incited the others, including Mr Ayton, to violence although she was fully aware of the likelihood of violence breaking out. That finding, incidentally, was consistent with Mr Ayton's description of Ms Coleman's role, when he was interviewed by the police. Mr Ayton said this: (ERISP 18) "Q160 All right. And what did she say to you about you guys coming along to Cabarita? A. I just said, 'I'll go around there and fuckin' punch him up'. Q161 Did she ask you to? A. No, I just said, 'I'll go around there and I'll punch him up.'" 49 Secondly, in contrast to Mr Ayton, Ms Coleman had what his Honour described as "a strong subjective case" (ROS 4). There were circumstances outlined in a report of a psychologist, Dr Delaforce, relating to Ms Coleman and her relationship with her daughter (where his Honour did not elaborate) that made her case "quite exceptional". 50 Again, in my view, because of these differences, Mr Ayton does not have a justifiable sense of grievance arising out of the more lenient sentence imposed upon Ms Coleman. 51 I would also dismiss this ground.

Order. 52 I believe therefore there was no error by the sentencing Judge. The orders I would propose are as follows:

3. Appeal dismissed. 53 BUDDIN J: I agree with Kirby 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.