BUTTERS, Jarrod Dean v R

Crimes Act 1900 LEGISLATION CITED: Crimes Amendment Act 2007 Crimes (Sentencing Procedure) Act 1999

Jones v R [2009] NSWCCA 169 Pengilley v R [2006] NSWCCA 163 CASES CITED : R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 R v Thomas [2007] NSWCCA 269 Spooner v R [2009] NSWCCA 247 TS v R [2007] NSWCCA 194

PARTIES: Jarrod Dean Butters (App) The Crown (Resp)

COUNSEL: I McClintock SC (App) S Dowling (Resp)

SOLICITORS: D Giddy (App) Solicitor for Public Prosecutions (Resp)

IN THE COURT OF CRIMINAL APPEAL 2008/11567

McCLELLAN CJ at CL FULLERTON J McCALLUM J

4 FEBRUARY 2010 JARROD DEAN BUTTERS v R JUDGMENT 1 McCLELLAN CJ at CL: I agree with Fullerton J. 2 FULLERTON J: The applicant seeks leave to appeal against a sentence imposed in the District Court at Albury on 6 November 2008 after he entered a plea of guilty in the Local Court to recklessly inflicting grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. 3 A maximum penalty of 10 years is prescribed under the Crimes Act for that offence and a standard non-parole period of 4 years specified in Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999. The increase in the maximum penalty from 7 years to 10 years was effective from 27 September 2007 as stipulated in the Crimes Amendment Act 2007. 4 After allowing a discount of 25 per cent for the plea of guilty, and after finding special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act by reason of the applicant's youth; the fact that he had no criminal record and the related fact that he was to be imprisoned for the first time, a term of imprisonment comprising a non-parole period of 3 years with a balance of term of 18 months was imposed to date from 5 November 2008. The grounds of appeal

5 The applicant advanced two grounds of appeal. The first that the sentencing judge erred in the manner in which he dealt with evidence of remorse and the second that the sentence was manifestly excessive in circumstances where the evidence did not support a finding of objective seriousness above the mid range. The evidence in the sentence proceedings 6 A statement of facts was tendered by consent from which the following facts were derived. On 15 February 2008 the victim was with friends at the New Albury Hotel in Albury. He was 19 years of age. He had not consumed any alcohol and was apparently at the hotel for a very short period of time when, as he was leaving the hotel with his friends at about 11pm, the applicant grabbed the buttocks of a young woman in his group. The applicant who was 21 years of age was heavily intoxicated. The victim intervened on the young woman's behalf and told the applicant not to touch her. The applicant spat at the offender, who spat back at him. Thereafter the facts record the following: "…When the victim turned back and started to leave, he felt something smash on his face. The victim felt that his face was starting to bleed, and felt blackness and could not see anything. Eyewitnesses confirm that the offender swung a punch at the victim with force whilst having a glass in his hand and that the glass got smashed on the face of the victim. The offender got hold of the shirt collar of the victim and started to hit him. The eyewitnesses further confirm that the offender repeatedly punched the victim several times until security officers of the hotel separated the offender from the victim. The offender had then walked away to wash the wound in his hand…" 7 The applicant was arrested by police. He elected not to participate in an interview due to his state of intoxication. He was treated for an injury to his hand resulting from what was said to be "the cut glass". The victim was taken to hospital suffering from lacerations to the left side of his face and the loss of vision to the left eye. Glass fragments were surgically removed from the left eye and sutured however the eye was later surgically removed. 8 In accordance with s 30A of the Crimes (Sentencing Procedure) Act a victim impact statement was tendered in the proceedings and read by the victim in open court. It was eloquent of the appreciable physical and emotional pain the victim suffered initially upon the loss of vision in his left eye and then its subsequent surgical removal, together with disfiguring scars resulting from lacerations to his face and surgery. The nature and extent of his injuries and the various medical procedures, undertaken with a view to avoiding the ultimate enucleation of his left eye, were the subject of formal report by doctors in the emergency department of the Royal Victorian Eye and Ear Hospital in East Melbourne and his treating ophthalmologists.

9 A pre-sentence report dated 24 October 2008 was also tendered by the Crown. The applicant did not give evidence. He relied upon a report from Dr Jones, a forensic psychiatrist, dated 25 October 2008, a report from Ms Paech, a Drug and Alcohol counsellor with the Upper Hume Community Health Service, and a number of references which attested to the fact that the extreme violence reflected in the offence for which he stood to be sentenced was contrary to his otherwise quiet and helpful disposition and the high regard in which he was held by his family and the wider community. None of the references referred to the applicant's sustained abuse of alcohol over a two-year period prior to the offence. The pre-sentence report on the other hand referred to his daily abuse of alcohol, his binge drinking on weekends and the applicant's concession that he regularly blacked out from drinking alcohol to excess and that he would sometimes pass out. It is in this context, so it would seem, that the applicant had little recollection of the evening at the New Albury Hotel and no memory of committing the offence at all. 10 The reports from Dr Jones and Ms Paech addressed the applicant's abuse of alcohol and the steps he has taken since the offence to moderate his drinking habits and to seek intervention with a view to understanding the underlying causes of his alcohol abuse. His Honour expressed guarded views about the applicant's prospects of rehabilitation given that his efforts to moderate his alcohol intake to weekly "special occasions" indicated a failure to fully appreciate the adverse effects of alcohol. There is no challenge to that finding.

Evidence of remorse 11 In support of the first ground of appeal the applicant referred the Court to extracts from the tendered material which, it was submitted, evidenced the applicant's remorse: In the pre-sentence report under the subheading "Attitude to the Offences" the officer noted:

"Although Mr Butters indicated that he agreed with the police facts, he maintained that he has little recollection of the evening, and no memory of the offence itself. He expressed considerable remorse for his behaviour and stated that he "still can't believe I did it". Not only was he sympathetic and apologetic to the victim but he recognised the ripple impact his behaviour and subsequent legal proceedings have had on his family."

Later in the report the officer stated: "…He was able to articulate both his disappointment and shame in his behaviour and significant contrition not only for the victim, but the impact his offence has also had on his family." 12 Although Dr Jones did not specifically use the term "remorse", he reported that the applicant thinks about the fact that the victim lost his eye as a result of his conduct every day. In Dr Jones' view the applicant's feelings of shame and guilt warranted psychological counselling. This was consistent with the report from Ms Paech in which she advised that the applicant: "…has been referred to generalist counselling at this agency after it was identified that he has deep feelings of despair and regret about his actions…". 13 The applicant's written submissions assert that various of the references referred specifically to the applicant's genuine remorse and genuine sorrow. After a careful reading of the eight references, each of which was principally directed, and in some detail, to the applicant's prior good character, his work history and his prospects of rehabilitation, the only references to remorse are as follows: (a) Ms Clarke, a woman who has known the applicant for five years, said: "…I have found him [the applicant] to be an honest and trustworthy man who, in recent months, has shown that he is deeply affected by the fact that he has caused injury to another person…I feel that he has genuine remorse for the victim..." (b) Ms Hammond, a family friend, said that when she spoke to the applicant after the incident he had been "embarrassed and remorseful of his actions" (sic). (c ) The applicant's father reported that: "…Jarrod has been so remorseful for what has happened, and has spent a lot of time in his bedroom being very quiet and is having trouble coming to terms to what happened (sic)…" 14 Finally, reliance was placed on a letter of apology which was apparently given to the victim on the day of sentence. It was referred to by the applicant's counsel in the sentence proceedings, and by his Honour in his remarks on sentence, but was not tendered in evidence. The findings of the sentencing judge the subject of challenge in the applicant's first ground of appeal 15 The sentencing judge referred to remorse as a mitigating factor in his sentencing remarks in the following way: "I have made some mention of the fact that there are a large number of references that have been put in front of me which speak so well of the offender… His counsel suggests to the court that this is a double tragedy and undoubtedly that is true. He is going to go to gaol for a period of time. There can be absolutely no doubt about that as his own counsel acknowledged. I might say that, and this is perhaps understandable, a lot of these [references] derive from friends and family who are very concerned at the harm that has been done to the career of Mr Butters. I must admit that I would have liked to have seen more in the way of concern for the complainant and there was not a lot in those documents at any rate to be found in that direction. It was said by the prosecutor in address that Mr Butters did not enter the witness box to give voice to his remorse and it is a fact that in the absence of sworn and tested evidence in respect of such matters the court is entitled to be appropriately discriminating in accepting statements from the bar table as to the level of remorse of the particular person." Later in the reasons for sentence specifically in the context of acknowledging the weight of other features of mitigation, his Honour said:

"… he claims to be remorseful through his counsel and indeed he claims to have sent a letter today to the complainant expressing that remorse. But again such remorse might have been more forthcoming in my view." 16 The applicant submitted, and correctly, that the prosecutor misstated the law when he submitted that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act requires an offender who is claiming the benefit of remorse in mitigation of sentence to give evidence in the sentence proceedings, and that in the absence of such evidence little weight ought attach to out of court statements of remorse by the offender. Contrary to the prosecutor's submission there is no statutory requirement that an offender give evidence before remorse can be taken into account in the calculation of sentence. Furthermore, the prosecutor's reliance on R v Thomas [2007] NSWCCA 269 as authority for the proposition he advanced was in error. 17 On a proper construction, s 21A(3)(i) requires an offender to provide evidence that he or she has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or any reparation for such injury, loss or damage (or both), as a statutory precondition to any reliance on remorse as a mitigating factor. The requirement to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section. This much is clear from Thomas at [18]-[19] per Basten JA: "18 The other evidence of remorse is recorded in a report dated 13 December 2006, prepared by a psychologist, Mr Peter Ashkar. Mr Ashkar reported: "He accepts responsibility for the … offence. He tells me he was heavily intoxicated on bourbon when he committed this offence. … He also tells me he was in the company of antisocial peers at this time. He attributes his offending behaviour to his alcohol use at that time.

Matthew expresses considerable regret and remorse over his offending behaviour: 'I was definitely in the wrong … I'm sorry … I do feel bad for doing it … I've learnt my lesson … Never to get in trouble again … It's just not worth it'."

19 The failure of Mr Thomas to give evidence to that effect himself in the witness box; his continued adherence, through many days of hearing, to an implausible story which was disbelieved, but constituted a significant attempt to diminish his responsibility for the offence, and the fact that he committed a further serious offence less than a month later, all require consideration in assessing the genuineness of remorse and the extent to which his expression of remorse can mitigate an otherwise appropriate sentence. A finding of genuine remorse should not be made lightly, especially in circumstances where there are contra-indications. A sentencing judge should indicate the manner in which he or she has taken into account the possibility that expressions of regret may be triggered by the threat of incarceration. On the other hand, it is fair to say in the present case that his Honour accepted the genuineness of his attempts to overcome abuse of alcohol which would provide a basis for the conclusion that there was a genuine attempt to address an underlying cause of the violent behaviour." 18 In the present case the statutory precondition in s 21A(3)(i) was satisfied in any event. There was ample evidence in the tendered material that the applicant accepted responsibility for his actions and acknowledged the very significant injury suffered by victim as a result of his actions. However, as is clear from the remarks on sentence extracted at [15] above, his Honour did not disregard the evidence bearing upon remorse because the applicant did not go into the witness box and give evidence. Rather he considered that in assessing the weight of evidence of remorse, sourcing as it did solely from the tendered material, he was entitled to take into account the fact that the applicant did not give evidence. This was a course properly open to him. It is an approach that is consistent with this Court cautioning against an uncritical reliance on material contained in tendered reports (or other third party statements) for evidentiary purposes where an offender has not given evidence (see R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 and TS v R [2007] NSWCCA 194 at [30]). 19 The applicant's counsel advanced the submission that if uncontested evidence of remorse from third party sources is to be accompanied in every case by evidence from an offender confirming its genuineness, the efficient, and at times the necessarily informal dispatch of sentence matters in the District Court would be compromised. Efficiency is always a laudable objective. It should not, however, take precedence over the application of sentencing principles, in this case a principle enshrined in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, the application of which has been authoritatively determined by this Court in Thomas.

20 The applicant also submitted that if his Honour's criticism that the evidence of remorse was not more forthcoming was referable to the applicant's letter to the victim only being provided on the day of sentence, the criticism was unwarranted given that the applicant's bail conditions prohibited him from communicating with the victim. I accept that it would have been a breach of bail were the applicant to have forwarded an unsolicited communication directly to the victim, and an error were his Honour to have taken the delay in communicating his remorse to the victim into account when assessing the weight of the evidence of remorse in these circumstances. It would not, however, have been a breach of bail if, prior to the sentence proceedings, the applicant's legal representatives had communicated to the Director of Public Prosecutions the applicant's intention to personally express his regret and remorse in a letter to the victim and perhaps to make available a sealed letter for production at the hearing if necessary. The fact that the applicant's lawyers in this case did not take this course prior to sentence is immaterial to the outcome of the appeal since I do not read his Honour's remark about evidence of remorse not being more forthcoming as referable to any delay in sending the letter. The remark was made in the context of considering the weight to be afforded to submissions from the bar table bearing upon remorse, including the reference to the letter, in the absence of the applicant having given evidence, but also the remark was referable to his earlier observation that various testimonials, although tendered for other purposes, were not redolent of the applicant's expressions of remorse and that remorse was not forthcoming in that sense. 21 In the absence of a finding that it was not open for his Honour to give reduced weight to the evidence of remorse in all the circumstances, or that the exercise of the discretion involved in the assessment of the weight to be given to remorse as a mitigating factor was otherwise so unreasonable as to amount to error, it is not appropriate for this Court to intervene. In my view, the applicant has failed to establish error of either kind. The limitations on the jurisdiction of this Court when entertaining an application for leave to appeal against sentence have been recently restated in Jones v R [2009] NSWCCA 169 at [33]-[34]: "[33] The Court of Criminal Appeal functions within well-established jurisdictional boundaries and is concerned, on an application for leave to appeal against sentence, primarily to ascertain whether the decision of the first-instance Judge was in error: R v Vachalec (1981) 1 NSWLR 351 at 353. An appeal to this court is not by way of rehearing, and error must be established before the court may intervene: R v O'Donoghue (1988) 34 A Crim R 397 at 401. This court is bound by findings of fact of the sentencing Judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v R (1936) 55 CLR 499 at 504: Kardoulias v R (2005) 159 A Crim R 252 at 265 [56].

[34] To the extent that some of the Applicant's submissions assert that "insufficient weight" was given to a factor or that "appropriate weight" had not been given to another factor, it is timely to refer to the observation of Spigelman CJ in R v Baker [2000] NSWCCA 85 at [11] that "questions of weight in the exercise of a discretion are matters for the first instance judge" and that "the circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined"." The findings of the sentencing judge the subject of challenge in the applicant's second ground of appeal 22 After referring to the agreed facts (emphasising that the applicant swung the punch at the victim with sufficient force to smash the glass in his face after which he repeatedly punched the victim), and after taking into account the use of the glass as a weapon as a feature of aggravation under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act, (or a "seriously dangerous instrument", albeit not as serious as the use of knives or firearms, to use his Honour's words) the sentencing judge concluded that the offence was "a serious instance of this particular offence". Later in his reasons for sentence, he positioned the offence as "somewhat above of the mid range of seriousness", doubtless with a view to sentencing the applicant by reference to the standard non-parole period in accordance with established principles. 23 The applicant's challenge to the sentence as manifestly excessive was referable in part to the error said to be constituted by his Honour's finding that the applicant used the glass as a weapon and also from the error in his approach to considering the evidence of remorse. Since I am satisfied there is no error in his Honour's approach to considering the evidence of remorse, the question of manifest excess rests solely on the error said to result from his Honour's finding that the glass was used as a weapon. This finding was also the only basis upon which it was submitted that his Honour's finding of the offence as above the mid range was unsustainable. In particular, there was no challenge to his Honour's finding that the loss of the victim's left eye elevated the objective seriousness of the offence under s 21A(2)(g), or that the absence of provocation of any kind on the part of the victim on the one hand, or the applicant's apparently spontaneous reaction to being chastised on the other, were not given adequate weight in the assessment of objective seriousness. 24 The applicant submitted that it was not open to his Honour to find that the applicant used the glass as a weapon by reason only of the fact that he had a glass in his hand when he punched the victim. It was necessary for the prosecution to also establish, and to the criminal standard, that there was a purposive element in the use of the glass, either because the applicant obtained or adapted it for use as a weapon, or deliberately used it as a weapon, as distinct from the glass simply being in his hand at the time he forcefully (and recklessly) swung a punch at the victim. Allied with that proposition, it was submitted that it was necessary for his Honour to find that the applicant knew he had a glass in his hand at the time he swung the punch, and that he intended to strike the victim with it, before it was open to find under s 21A(2)(c) that the offence was aggravated in seriousness. Finally, the applicant submitted that by inappropriately adopting the language of s 21A(2)(c) there was the additional risk that the sentencing judge treated the offence as a breach of the objectively more serious offence under s 33 of the Crimes Act, where intention is specified as the mental element accompanying the infliction of grievous bodily harm, a risk which it was submitted must have materialised in this case given the severity of sentence that was imposed. 25 Section 21A(2)(c) provides that an offence is aggravated where it involves the actual use of a weapon. In Spooner v R [2009] NSWCCA 247 MacFarlan JA (Howie and Hislop JJ agreeing) interpreted that provision as requiring knowledge on the part of the offender using the glass that he had a glass when he intentionally struck the victim. In accordance with sentencing principles, knowledge may be established to the necessary criminal standard either by direct evidence, by inference or by admission. In Spooner the sentencing judge concluded that the offender swung the blow with a glass in his hand because he was intoxicated. She also specifically noted that the prosecution could not establish beyond reasonable doubt that the glass was smashed by the offender before he swung the hand that was holding it at the victim, in contrast to the situation where an offender deliberately arms himself (or herself) with a glass and deliberately uses it as a weapon in which case the more serious offence under s 33 of the Crimes Act would likely be charged. Although the sentencing judge in Spooner found that the offence was aggravated by the offender's use of the glass as a weapon, without an accompanying and explicit finding that he was aware that the glass was in his hand at the relevant time, in MacFarlan JA's view, that was entirely understandable given that on sentence the offender's counsel accepted that the offence involved "the reckless use of the glass as a weapon" for which there was no justification, despite the fact that the offender regarded himself as provoked and, I interpolate, despite the fact that he was intoxicated.

26 On the present appeal the Crown submitted that the agreed facts, as set out in paragraph 6 above, provided a sufficient factual basis for his Honour to have been satisfied that the offence involved the use of the glass as a weapon in accordance with the approach of this Court in Spooner. She also submitted, and correctly in my view, that despite the fact that the sentencing judge made no finding that the applicant used the glass intentionally, in the sense that he knew he had the glass in his hand and intended to strike the victim with it, the plea of guilty to the charge of recklessly inflicting grievous bodily harm under s 35(2) carries with it the applicant's admission that he deliberately swung a punch with a glass in his hand with foresight of the possibility that some injury such as that which resulted, namely the loss of an eye accompanied by lacerations to the victim's face, might occur and his determination to proceed to act notwithstanding (see Pengilley v R [2006] NSWCCA 163 at [45]). These submissions are persuasive and may well have been sufficient to dispose of this ground of appeal. However, at the hearing of the appeal, counsels' attention was directed to the concession made in the sentence hearing by the applicant's then counsel that it was appropriate for his Honour to take into account not only that that the offence was aggravated pursuant to s 21A(2)(g) by reason of the extent of the harm suffered but also because it involved the use of the weapon under s 21A(2)(c). With that concession there was no need for his Honour to elaborate in his sentencing reasons upon the circumstances in which the glass was used as a weapon, or make an explicit finding that the applicant knew he had the glass in his hand when he delivered the first punch. While that concession also disposes of the applicant's first ground appeal, I would make the further observation that despite the fact that the applicant may have instructed his counsel that he had no memory of the incident, given that the punch with the glass was followed by further punches delivered by the applicant with what appears to be undiminished force, there is every indication that the concession that the offence was aggravated because it involved the use of a glass was a concession properly made. 27 The orders I propose are: 1. Leave to appeal against sentence is granted. 2. The appeal is dismissed. 28 McCALLUM J: I agree with Fullerton J. **********

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