Brown v R

Ground 2

Mr Brown made the following submissions.
First, the aggregate sentence imposed on Mr Brown was one of 7 years and 3 months with a non-parole period of 4 years and 10 months. The indicative sentences were 6 years and 3 months for Count 1, with a non-parole period of 4 years, and a term of 3 years for Count 2. Before applying the discount of 10 per cent for Mr Brown's pleas of guilty, the starting point of the indicative sentence for Count 1 is approximately 6 years and 11 months and for Count 2 is 3 years and 4 months. Mr Brown submitted that these starting points for each indicative sentence were simply too high. Mr Brown submitted that this is relevant to this Court's assessment of whether in the result the aggregate sentence is an unreasonable one.
Secondly, as both the Crown and Mr Brown's counsel submitted at first instance, the objective seriousness of Count 1 is below mid-range: 1. Each of the two wounds occasioned to Mr Green's shoulder did not require stitching. 2. The wound occasioned to his back, whilst serious, was expected to heal within one month. 3. There was no suggestion that the injuries occasioned to Mr Green would have any permanent or longer lasting physical effect. 4. Whilst the offence must have been premeditated to some extent, the weapon used by Mr Brown was makeshift (i.e. a pair of scissors) and it was left at the scene together with a baseball cap, each of which carried a DNA profile that inculpated Mr Brown. 5. The assault was not initiated by Mr Brown. 6. How Mr Brown exactly stabbed Mr Green is unclear. Whereas it may have been open for his Honour to find an intention on Mr Brown's part to cause some harm (i.e. actual bodily harm) it was not the Crown case that Mr Brown intended by his actions to cause Mr Green any really serious injury.
Thirdly, again as both the Crown and Mr Brown's counsel submitted at first instance, the objective seriousness of Count 2 is below mid-range. However, Mr Brown's moral culpability for the offence is more important. In KR v R [2012] NSWCCA 32, Latham J provided a useful collection of authorities together with an analysis of the differences between liability and culpability in the context of the criminal law. Her Honour said this at [16]-[22]: "[16] As James J observed (McClellan CJ at CL and Adams J agreeing) in R v Wright [2009] NSWCCA 3, when dealing with a joint criminal enterprise to cause grievous bodily harm which involved stomping on and kicking the head of the victim:- '28 If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90. 29 However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23). (bold not in original)' [17] This passage was also cited with approval in R v JW [2010] NSWCCA 49 at [162]. With respect to the identification of the role played by each participant in a joint criminal enterprise, Spigelman CJ said (Allsop P, McClellan CJ at CL, Howie and Johnson JJ agreeing) at [161]:- 'It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with "precision", because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced. (See, e.g. Lowe v The Queen (1984) 154 CLR 606 at 609; R v Howard (1992) 29 NSWLR 242 at 254-259; R v Spathis [2001] NSWCCA 476 at [193]-[197]. See generally A Dyer and H Donnelly, "Sentencing in Complicity Cases - Part 1: Joint Criminal Enterprise", Sentencing Trends and Issues, No 38, Judicial Commission of New South Wales, June 2009.) (bold not in original)' [18] More recently, in R v Sukkar [2011] NSWCCA 140, Davies J summarised the position thus at [36]:- 'To the extent that the grounds do not raise the parity principle they seem only to deal with the proper approach to sentencing for a joint criminal enterprise particularly where the co-offenders have different roles in the enterprise. Although the starting point is that the offenders were parties to the same joint criminal enterprise, and that should not be lost sight of, (Johnson v R; Moody v R at [4]), and that one should not identify the differences in the roles with any precision (R v Hoschke [2001] NSWCCA 317 at [18], R v JW [2010] NSWCCA 49 at [161], Johnson v R; Moody v R at [11]), it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced (R v JW at [161], and see Johnson v R; Moody v R at [4] and [94], Regina v Darwiche & Ors [2006] NSWSC 1167 at [74], Regina v Rick Barry Swan [2006] NSWCCA 47 at [72] and [74]). (bold not in original)' [19] What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct. [20] Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process. [21] Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. 'The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability': R v O'Connor [1980] HCA 17 at [20]; 146 CLR 64 at 72, per Barwick CJ. [22] Culpability, on the other hand, is concerned with the assessment of an offender's moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry & Ors. [1999] NSWCCA 111 at [254]; 46 NSWLR 346; 106 A Crim R 149."
Mr Brown played no part in the physical assault upon Ms Standford. This feature of Mr Brown's case on Count 2 was critical in terms of assessing his moral culpability for the offence and the sentence to be imposed. Whilst his Honour was aware of the nature and extent of Mr Brown's participation in Count 2, this feature of his case is not reflected in the aggregate sentence imposed.
Fourthly, the combined effect of Mr Brown's pleas, his remorse, limited criminal history (and the aberrant nature of these offences in that context), the significant gap on his criminal record prior to the commission of these offences, and the strong evidence of improvement in custody and significant community support, all pointed to a less severe sentence than the one imposed at first instance. Whilst his Honour was only guarded about Mr Brown's prospects of rehabilitation, it could not be said that on the balance of the evidence his prospects were poor. Mr Brown maintained that none of the favourable features of his case was reflected in the aggregate sentence imposed.
His Honour described the offences, and Mr Brown's role in committing them, as follows: "In relation to both offences, it is necessary to consider not only in relation to count 1 the nature of the grievous bodily harm suffered; in relation to count 2 the nature of actual bodily harm suffered, but all the circumstances in which the offence was committed. In R v Douglas [2007] NSWCCA 31, Bell J said at [12] that in sentencing for a s 35(1) offence where the offender had struck the victim, the question of the number of blows and the circumstances in which they were delivered was relevant in assessing the objective seriousness of the offence. As I have said in relation to the victim Mr Green, the offender stabbed him three times, twice to the shoulder and the third to his back, sufficiently deep to cause his left lung to deflate. However, I take into account that the prognosis for Mr Green was that his physical injuries should heal within a month. But that does not mean that the stabbing which deflated his lung was not a serious injury. It could well have been life-threatening; fortunately, because of almost immediate medical intervention, it was not. In assessing the objective seriousness of the s 35(1) offence it is also to be taken into account that the offender ran in and stabbed the victim whilst the victim was being assaulted by two co-offenders. In other words, when the offender stabbed the victim Mr Green, Mr Green was almost totally defenceless. The offence is an offence of recklessly causing grievous bodily harm in company, but in assessing the objective seriousness of an offence committed in company it is relevant to take into account the role played by the offender and the co-offenders who were in company. This was not a case where the co-offenders were simply standing back ready to provide assistance if required. They were already assaulting the victim Mr Green, and, rendering him almost to a defenceless state, the offender runs in and stabs him three times. The offence is also aggravated of course by the use of a weapon by the offender. The assault on Ms Stanford was particularly brutal, involving Ms Stanford being punched and kicked and causing her to fall to the ground. The co-offender, Ms Kilby, continued to kick Ms Stanford while she was on the ground. Ms Stanford suffered multiple injuries to her face and body, causing bleeding and bruising."
It is apparent, and was accepted by his Honour, that Mr Brown's offending was, having regard to his criminal history, both uncharacteristic and influenced by drug use. His Honour then dealt with some important and well-understood sentencing considerations in the following remarks: "I now turn to the offender's plea of guilty. He was committed for trial in this Court on 13 September 2017. Some time after that he absconded on bail, and as I have said, and ultimately a warrant was issued and he went back into custody in January of this year. His trial had been listed on a number of occasions but ultimately - his trial was listed on 6 May 2019, but I understand there were some adjournments and ultimately he pleaded guilty on 15 May 2019. In my view the offender is entitled to a reduction in the sentence I would otherwise impose upon him by 10% for the utilitarian value of his plea of guilty. In that regard it is to be remembered that both of the victims would have been on standby waiting to give evidence at the trial about these horrific events and they were only relieved of that obligation once please of guilty were finally entered on 15 May 2019 around the time of the trial. I accept that the offender is genuinely remorseful and contrite for his offending; I accept that from his letter to the Court, to the victims and from what he said to Mr Sheahan. He expressed shock to Mr Sheahan at the level of violence he perpetrated in this offending. However, I am somewhat guarded in assessing his prospects of rehabilitation and his risks of reoffending. He has demonstrated that he is capable of becoming abstinent from drugs for an extended period after he entered that rehabilitation program in 2009 in Canberra, however he relapsed. It is also to be taken into account that he breached the conditions that he enter the rehabilitation program and he had to leave that program. He no doubt is aware that if he is to successfully rehabilitate himself from drug use that he will have to ensure that he does not return to associate with his co-offenders and others who may be using drugs because that is what in the past seems to have made him relapse to drug use and return to criminal conduct. But also in assessing his prospects of rehabilitation and risk of reoffending I cannot ignore the fact that he has absconded whilst on bail for a significant period of time. With that history I am unable to make a finding that he is at low risk of reoffending; it is obvious he is at a higher risk of reoffending than that. There is no doubt, however, that this offending related to his drug use. He was using methamphetamines at the time heavily. As I indicated in the course of submissions this offending was somewhat out of character when one looks at his prior record, which does not involve this kind of violent offending. Usually in sentencing the fact that someone is drug addicted is not a mitigating factor, however, when an offender is introduced by whatever means to drug use at a young age, which the offender was here, it cannot be said that the offender exercised informed consent in deciding to start to use drugs. And in such cases there can be some mitigation of the subjective case of the offender; see R v Henry (1999) NSWCCA 111 per Wood CJ at CL at [273]. I do therefore propose to mitigate to a modest degree the sentence I would otherwise impose because of his early introduction to drug use."
Significantly in my view, his Honour had previously referred in commendable detail at pages 6 to 10 of his remarks on sentence to Mr Brown's subjective case. At the risk of some repetition, it is instructive to include here precisely what his Honour said: "I now turn to the subjective case of the offender. He was born in March 1984, he is now 35 years of age. He did not give evidence in the sentencing proceedings. Tendered in his case is a report of Mr Patrick Sheahan, Forensic Psychologist, dated 8July 2019. By way of background Mr Sheahan states that the offender was born and raised in the Leeton area. Tragically the offender's father died in a motor vehicle accident when the offender was only aged three. The offender's mother re-partnered when the offender was seven years of age. The offender told Mr Sheahan that he felt some resentment towards his step-father because he was not his real father. The offender reported that his home life was stable and he was well cared for. He said, however, that in his adolescence he became increasingly unstable and uncontrollable and left home at the age of 15, finding no stable accommodation and at times being effectively homeless. The offender reported that he returned to his family for brief periods over the years, although he said he has maintained contact with his family in more recent times. Although he said after being charged with the current offences he pushed his family away for some 18 months, but now he speaks to his family on a daily basis and he reported a much improved relationship with his stepfather. The offender described gratitude for the support of his family and said he intends to live with his family in Leeton or Winton after his release. It is apparent from the report that the offender was doing well in his early years of schooling; however, when he was in Year 9 his behaviour deteriorated sharply on a background of increasing drug use. He was expelled midway through Year 10 after threatening teachers and he never returned to complete schooling education. The offender reported having worked for approximately 50% of his adult life in farming, labouring, factory and warehouse roles. Mr Sheahan states that the offender's employment has been undermined by mental illness and substance abuse. However, he has obtained qualifications for a forklift operator, white card, and certificate 2 in warehousing, but he has not worked for approximately three years. The offender reported having two main relationships, with both his partners were drug users as well. He has two children, now aged ten and eleven from one relationship and a 14 year old son from another relationship. The offender said he was the primary carer for his two younger children in the years prior to 2017, but he said he handed the children back into their mother's care in 2017 after he lost his job and relapsed back to drug use. The offender said that he maintained a relationship with Ms Kilby between 2012 and 2017. He said that they both were abusing amphetamines at the time of the offences. Mr Sheahan expresses the opinion that the offender suffered some sort of complex grief reaction following the death of his father and an emerging bipolar disorder further aggravated through poly-substance abuse. In relation to Mr Sheahan's reference to an 'emerging bipolar disorder' he states further that access to medical records would be helpful in adding clarity to the offender's report of bipolar disorder. However, in the absence of a direct diagnosis Mr Keller of counsel, on behalf of the offender, indicated that he does not assert that the offender was at the time of the offending suffering a mental illness or disorder, such as would attract the principles on sentencing enunciated in such cases as DPP (Cth) v De La Rosa [2010] NSWCCA 194. Mr Sheahan refers to the offender's reported history of drug abuse. The offender said that he commenced to use cannabis at the age of 12 and that gradually increased to daily heavy use. He said he commenced to use amphetamines from the age of 13 and he began to engage in crime to support his drug habit. The offender was also abusing alcohol. The offender reported attending an intensive residential rehabilitation program at the Canberra Recovery Service in 2009. He said he attended six months of the nine month program but was breached from the program prior to completion. He said that despite leaving the program he learnt much from participation in the program and was able to maintain abstinence from drugs for an extended period after he left and that he was assisted in that by psychiatric support. However, the offender said he relapsed heavily back to methamphetamine use in 2017 in the context of relationship conflict, losing his job and lack of accommodation. He said he was using methamphetamines heavily at the time of his offending. The offender said he detoxified over four months whilst on remand and maintained abstinence after being granted bail but relapsed heavily to drug use after breaching his bail by seeking contact with his co-offender, Ms Kilby. In relation to that history I note that having been arrested and bail refused for these offences on 14 March 2017 the offender was granted bail on 20 July 2017, and he was finally re-arrested on 27 January 2019 and has been in continuous custody on remand since that date. That has obviously meant of course a considerable delay in the finalisation of these proceedings. Mr Keller submitted that I should however, take into account that in that period between him being granted bail and being arrested on the warrant and returned to custody there was no further offending. That perhaps is a two-edged sword. It may be that the offender was being extremely careful not to be involved in any offending so that he may not risk being detected by the police and going back into custody for these matters. But I do not disregard the fact that he did not offend during that period. Mr Sheahan states that the offender expressed an intention to participate in further drug and alcohol rehabilitation programs saying "I'll do whatever it takes, I want to bring my family and my children back into my life". In relation to the offender's mental health history the offender said he was hospitalised at the age of 25, secondary to serious suicidal ideation. He reported having trialled a range of medication in the last ten years, including a range of antidepressant drugs, Lithium and antipsychotic drugs. He said he had ceased his medication in 2017 in the weeks prior to this offending, in the context of having returned to methamphetamine use. He said he did not take any regular medication until his re-admission to custody in January this year. He said his current psychotropic medication has stabilised his mood and he currently feels well-adjusted. Mr Sheahan's references to the offender's mental health history largely is reliant upon the offender's self-reporting. Mr Sheahan states that a more informed understanding of the offender's mental health history could be reached with access to hospital records and Justice Health records. Mr Sheahan states that the offender acknowledged the seriousness of his offending and expressed shock at the violence of his actions. He states that the offender requires further drug and alcohol interventions and an emphasis on building resilience to accumulative stresses in his life. Mr Sheahan recommends that the offender could participate in drug and alcohol programs whilst in custody, or a community-based rehabilitation program. He also states that adherence by the offender to his prescribed medication will also be a key factor. Placed before me in the sentencing proceedings are letters from the offender to both the Court and to the victims. In his letter to the victims he expresses his remorse and sorrow for his offending and apologises for committing the offences. I have also before me testimonials from his family members in which they indicate their continuing support for the offender. The offender has a prior criminal record, however, certainly it is not of the seriousness of the offending before the Court today. I note particularly in his record a gap in offending between 2009 and the current offences, which coincides with that period immediately following his participating in the rehabilitation program in Canberra in 2009 but with the offender ultimately returning to drug use prior to committing these offences."
It is obvious that his Honour was confronted with the exceedingly difficult task of accommodating Mr Brown's very substantial subjective case with his Honour's assessment of the objective seriousness of the offences. It should be noted that Mr Brown has not directly challenged his Honour's view about objective seriousness, presumably upon the uncontroversial basis that it was quintessentially a matter for him to decide.
Nor does Mr Brown seek to identify particular individual errors in the way in which his Honour's discretion was exercised. He maintains that the aggregate sentence imposed was in all of the circumstances manifestly excessive and plainly unjust.
In my view, the sentence at which his Honour arrived is disproportionate to the objective criminality of the events that constitute each count and to Mr Brown's culpability. An aggregate sentence of over 7 years with a non-parole period of almost 5 years fails properly to take account of Mr Brown's violent and emotionally impoverished upbringing, his personal circumstances that saw him descend into the abuse of ice, and all of the several compelling matters referred to at [44] to which his Honour referred in commendable detail.
As Mr Brown has emphasised, he played no active part in the physical assault upon Ms Standford that made up Count 2. Mr Brown clearly accepts that while this cannot diminish his legal liability for that offence in the circumstances, it necessarily reduces his moral culpability in accordance with the principles helpfully analysed by Latham J in KR v R. Without in any way attempting to diminish the severity of this offence, which his Honour described as "particularly brutal", involving Ms Sandford being punched and kicked causing her to fall to the ground, it should be noted that Ms Sandford's injuries were fortunately confined to unspecified "multiple injuries to her face and body, causing bleeding and bruising".
Count 1 was clearly more serious. Mr Brown was the principal assailant and wielded the weapon that injured Mr Green. Fortunately for both Mr Brown and Mr Green, the injuries sustained by Mr Green were fortuitously quick to resolve with no long term physical effects.
Questions of accumulation and totality remain matters for consideration in assessing the appropriateness of an aggregate sentence, even though the indicative sentences are not themselves directly the subject of the appeal against such a sentence. I accept Mr Brown's submission that his Honour's sentence was in the circumstances of this case unreasonable and plainly unjust. Mr Brown should be re-sentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

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