CAMPBELL-STEPHEN v REGINA

Court of Criminal Appeal (NSW)|2010-08-25|Before: Basten JA, Hall J, Latham J

CITATION: CAMPBELL-STEPHEN v REGINA [2010] NSWCCA 204

JUDGMENT OF: Basten JA at 1; Hall J at 2; Latham J at 52

DECISION: Leave to appeal granted. Appeal dismissed.

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

CASES CITED : Regina v Kenney [1983] 2 VR 470 Regina v Mitchell & Gallagher (2007) 11 A Crim R 94

PARTIES: Douglas George CAMPBELL-STEPHEN v REGINA

COUNSEL: C: D Arnott SC A: I McClintock SC/M Coroneos

SOLICITORS: C: S Kavanagh A: Hanby & Associates

IN THE COURT OF CRIMINAL APPEAL 2009/8207

BASTEN JA HALL J LATHAM J

TUESDAY 14 SEPTEMBER 2010 DOUGLAS GEORGE CAMPBELL-STEPHEN v REGINA Judgment

1 BASTEN JA: I agree with the orders proposed by Hall J, for the reasons he gives. 2 HALL J: The applicant seeks leave to appeal in respect of a sentence imposed on him in the District Court on 30 October 2009 following a plea of guilty in the Local Court to an offence of recklessly inflicting grievous bodily harm pursuant to s.35(2) of the Crimes Act 1900. 3 The prescribed maximum penalty for such an offence is a term of imprisonment of 10 years and the offence has a standard non-parole period of 4 years. The applicant requested that a further matter of common assault be taken into account on a Form 1. 4 The sentence imposed on the applicant was for a total term of 3 years and 6 months imprisonment with a non-parole period of 2 years commencing from the date of sentence, 30 October 2009.

Appeal grounds 5 In the Notice of Appeal filed on 11 June 2010, the grounds upon which the applicant seeks leave to appeal are as follows:- "1. The sentencing judge erred in her determination that the offender was provoked but not by the victim , so as to exclude the provocation from the operation of s.21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999. 2. The sentencing judge erred in failing to properly take into account, or in failing to give proper weight, to provocation generally. 3. The sentencing judge erred in characterising the offence as one of within a mid-range of seriousness without properly determining the effect of provocation and other matters on such a determination. 4. In the circumstances of the case, the sentence was manifestly excessive." 6 The sentencing hearing proceeded on the basis of an agreed Statement of Facts in addition to an expert certificate from the Director General of Medical Services at Royal North Shore Hospital to which the victim was taken immediately after the offence. The certificate outlined the head and brain injuries suffered by the applicant. A Victim Impact Statement was also before the sentencing judge. 7 The Crown's written submissions accurately state the material circumstances. Reproduced below are paragraphs 5 and 6 from those submissions:- "5. The offences occurred after midnight on 28 June 2008 around the car park area of the Parkway Hotel at French's Forest. When asked to leave the hotel gaming room shortly before midnight closing time by staff, (the victim), aged 36 years, was reluctant to leave because he still had money standing to his credit in the poker machine he had been playing. He was with two younger work colleagues at the time. The applicant and his father sided with the hotel staff in the ensuing verbal disagreement. As they were leaving one of (the victim's) colleagues, 20 year old Mr Hodges, swore at a hotel security officer prompting the applicant to slap the former over the back of the head (Form 1 matter). 6. In the hotel car park the security officer pushed (the victim) and Mr Hodges outside through the gates, closed and locked them. In response to the applicant's father calling Mr Hodges an 'inconsiderable prick', Mr Hodges then exposed his bare bottom to the applicant and his father, and then reached through the gates striking the applicant's father and taking his spectacles. The applicant climbed the fence and ran after Mr Hodges. Being unable to catch him, the applicant then returned to (the victim) and demanded 'take me to his house or I'll knock you one … I'll drop you right here'. After (the victim) replied, 'Get fucked. I don't know where he lives. I'm not from around here', the applicant punched (the victim) in the face causing him to fall backwards striking his head on the bitumen driveway to the gates knocking him unconscious." 8 The victim was initially taken by ambulance to Manly Hospital and then to the Royal North Shore Hospital Emergency Department with multiple skull fractures, subarachnoid haemorrhage and extradural haemorrhage. An external ventricular drain was inserted into his skull and three days later he underwent a craniectomy to evacuate the subdural haematoma and to remove some bone from his forehead to make space until the brain swelling subsided. 9 The Victim Impact Statement records that there were subsequent hospital admissions and prolonged rehabilitation. It also referred to the fact that the victim had no sense of taste or smell as a result of the injuries and was constantly fighting headaches and dizziness. He was required to take anti-brain seizure medication three times a day indefinitely. His activities in various respects were limited. He had not been able, as at the date of sentence, to return to full-time work as a director of his company. 10 The sentencing judge noted that the victim had sustained a severe head injury with associated brain damage. 11 The applicant was aged 34 years at the date of the offence. He gave evidence, as did his father, at the sentencing hearing. 12 A Pre-Sentence Report was produced on sentence and the judge described it as "generally favourable". Dr Jackmon, psychologist, stated that the applicant had suffered significant levels of anxiety, stress and depression.

Grounds of appeal 13 I turn to the grounds of appeal relied upon for the purposes of the present application. Grounds 1 and 2 are directed to the issue of provocation and should be considered together.

Ground 1: The sentencing judge erred in her determination that the offender was provoked but not by the victim so as to exclude the provocation from the operation of s.21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999

Ground 2: The sentencing judge erred in failing to properly take into account, or in failing to give proper weight, to provocation generally 14 It was submitted on behalf of the applicant that the sentencing judge failed to identify the existence of the mitigating effect of provocation and bring it into account when determining the sentence to be imposed. The following passage from the sentencing judge's remarks was noted in the submissions for the applicant:- "The offence was committed in circumstances where the offender had been provoked, not by the victim, but by Mr Hodge's behaviour which was childish and quite disgraceful towards the offender's father who was many years his senior." 15 The complaint made on behalf of the applicant is that the existence of the mitigating effect of provocation was neither identified nor relied upon in the remainder of the remarks on sentence. 16 The relevant provisions of s.21A of the Crimes (Sentencing Procedure) Act 1999 provides:- "21A(3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:- … (c) the offender was provoked by the victim, …" 17 Section 21A(1) specifies that, in determining the appropriate sentence for an offence, the Court is to take into account, inter alia, the mitigating factors referred to in s.21A(3) that are relevant and known to the Court. 18 The submission was that the circumstances of the case demonstrated that the victim was one of a group that was clearly constituted by close associates who were acting offensively and in concert up to and at the time of the offence. 19 It is claimed that the applicant had witnessed his father assaulted and robbed by the group (of his spectacles). However, the Crown says that the evidence given by the applicant was that he did not, in fact, see that occur. After the father was assaulted, Mr Hodges turned to the victim and said, "Let's go". 20 Reliance was placed upon the fact that after the applicant was unable to catch Mr Hodges, he then tried to obtain assistance from the victim. It was contended for the applicant that the victim was clearly, on the facts, a friend of Mr Hodges. It is said that he worked with him and there was no doubt that he could have offered assistance to retrieve the applicant's father's spectacles which had been taken by Mr Hodges. 21 The submission continued:- "29. The applicant's conduct demonstrated that he believed that the two were acting in concert and what he initially sought was information (albeit with the conditional threat of violence) with a view to retrieving the stolen property. 30. In the circumstances, (the victim's) response was facetious, obstructionist and confrontational. It is submitted, in the circumstances, it was calculated to provoke the applicant. (The victim) told the applicant to 'get fucked'. " 22 It was submitted that the evidence established that there had been direct provocation by the victim. 23 It was alternatively submitted that, if the victim did not directly commit the provocative act, then the sub-section incorporated normal principles of criminal responsibility for the acts of others. Reliance was placed upon the observation of Brooke J in Regina v Kenney [1983] 2 VR 470, namely:- "[A] provocative act is done by a victim if he is acting in concert with or aiding and abetting the person by whom it is done." 24 In his oral submissions, Mr B McClintock SC, who appeared with Mr M Coroneos of counsel for the applicant, stated that (transcript, p.1):- "The fundamental ground which permeates all grounds concerns the issue (of) her Honour, the sentencing judge's treatment, of the issue of provocation." 25 Mr McClintock stated that the factual matters relied upon in support of his submissions on provocation consisted of the interchange between the victim and the applicant immediately before he struck the victim and, what was said to be, "… the act of acting in concert with him" (Mr Hodges). When asked to identify the acts which he contended were acts done in concert between the victim and Mr Hodges, Mr McClintock replied, "the acts that were in concert with each other, on an objective view, was the taking and holding of the glasses and the common escape from Mr Campbell-Stephen" (transcript, p.3). He submitted that the applicant was entitled to have formed the conclusion that Mr Hodges and the victim were associated and that the applicant had made an assumption that they were acting in concert "… by the very statement 'let's go'" together with the fact that the victim in stating that he did not know where Mr Hodges lived was "… determined to ensure that the glasses were not returned and was aggressive (by virtue of the words he spoke)". 26 On the above basis it was submitted that it was an error for the sentencing judge to have determined that there was no provocation by the victim consistent with the provisions of s.21A(3)(c). 27 The Crown contended that at the heart of both Grounds 1 and 2 was the complaint that provocation was given no weight at all by the sentencing judge, whether the provocation could properly be classed as coming from the victim or from one of his colleagues. 28 The Crown relied upon the sentencing judge's express finding in her remarks on sentence at p.4.7 as follows:- "The offence was committed in circumstances where the offender had been provoked, not by the victim, but by Mr Hodge's behaviour, which was childish and quite disgraceful towards the offender's father, who was many years his senior …" 29 The Crown contended that Ground 1 involved an alleged error of a highly technical nature. It was clear, the Crown argued, that the sentencing judge had found that the applicant had not been provoked by the victim but nonetheless her Honour did take provocation into account as a mitigating factor in accordance with what she believed the common law principles required as preserved by s.21A(4) of the Crimes (Sentencing Procedure) Act, which stated:- "21A(4) The Court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so." 30 Accordingly, on that basis, the Crown contended that the approach taken by the sentencing judge for the reasons set out in its written submissions, might have been a generous one in favour of the applicant. 31 I do not consider that there is any substance to Grounds 1 and 2. In support of that conclusion it is necessary to refer to some factual matters and submissions made in relation to them. 32 It was contended for the applicant that the victim was one of a group who had been acting offensively and in concert. Further, it was contended that the victim's response when the applicant said to him "… Take me to his house or I'll knock you one", namely, his response "I don't know where he lives" was "… facetious, obstructionist and confrontational … calculated to provoke the applicant …" (Applicant's Written Submissions on Appeal, paragraph 30). 33 The Statement of Agreed Facts establishes that after the applicant, his father, Mr Hodges and the victim proceeded to the car park of the hotel, Mr Hodges engaged in offensive and abusive behaviour including striking Mr Campbell-Stephen senior in the face and grabbing his spectacles. 34 The Agreed Statement of Facts does not indicate that the victim either participated in or encouraged Mr Hodges in his extraordinary behaviour nor, indeed was in a position to do anything in relation to it. 35 Events then moved to the next stage when Mr Hodges saw the applicant climb over the fence and run towards him and then run from the area. The applicant ran past the victim but failed to catch Mr Hodges and he then approached the victim. There is no suggestion, let alone reference, to the victim having participated in any of the relevant events and, indeed, there is no information as to where he was standing in the car park whilst Mr Hodges engaged in his offensive/abusive behaviour. 36 When, as noted above, the victim responded to the applicant's demands "… take me to his house …", the response "I don't know where he lives", so far as the evidences goes, may well have been true. I note that there was a 10 year age difference between Mr Hodges and the victim and, although they had been workmates, there is no suggestion that the victim had any knowledge as to where Mr Hodges lived. When the applicant then stated "… take me to his house now or I'll drop you right here" and the victim responded "Get fucked. I don't know where he lives. I'm not from around here", taken in the circumstances does not constitute conduct that suggests either that he was telling an untruth or misleading the applicant and certainly does not, as submitted on behalf of the applicant, indicate an obstructionist or confrontational stance. 37 In this case no evidence has been identified which is even capable of supporting the contention that the victim was acting in concert with Mr Hodges at any stage outside the hotel. 38 Accordingly, for the reasons stated above, Grounds 1 and 2 should be dismissed.

Ground 3: The sentencing judge erred in characterising the offence as one of within a mid-range of seriousness without properly determining the effect of provocation and other matters on such a determination

Ground 4: In the circumstances of the case, the sentence was manifestly excessive 39 These two grounds are related, I will deal with them together. 40 Reference was made in the written submissions for the applicant to the sentencing judge's observations in relation to the standard non-parole period as follows:- "Despite the finding I have made in the offender's favour as to the circumstances in which the single blow was delivered, in my view the nature of the injury to (the victim) places this in the mid-range of objective seriousness." 41 It was submitted for the applicant that, whilst the nature and extent of the injuries are matters that help determine the objective seriousness of the offence, the circumstances of the offence, when taken as a whole, could not lead to it being regarded as "mid-range". 42 It was submitted that the circumstances of the case and the acts of the applicant were at the lower end of objective seriousness. In this respect, emphasis was given to the fact that there was only one blow by the applicant and that there was no evidence of injury arising directly from the blow itself (as opposed to the fall). 43 I do not consider that there is any substance to this ground of appeal. 44 As the Crown observed in its written submissions, there is no basis for a suggestion that the sentencing judge did not have regard to the fact that the assault involved a single blow, her Honour having referred to that fact on two separate occasions. There was no error suggested in the judge's finding that the applicant struck the victim with a blow of considerable force to the face. The applicant's submissions acknowledged that the applicant's actions were very considerably disproportionate and totally unacceptable to the situation that the applicant faced. In this regard, reference was made to the observations of Howie J (with whom Giles JA and Fullerton J agreed) in Regina v Mitchell & Gallagher (2007) NSWCCA 296; (2007) 11 A Crim R 94 as follows:- "30. … but a grievance with the conduct of another, whether justified or not cannot be a licence to commit crime even where the conduct alleged by the victim is one of sexual assault. In the circumstances of the present case, the motive of the respondents for assaulting the victim was of limited mitigating value." 45 The submissions made on behalf of the applicant in relation to Grounds 3 and 4 are to a significant extent tied up with the matters argued in relation to Grounds 1 and 2. 46 Mr McClintock, properly with respect, accepted that if the Court did not accept that there had been error, as asserted in Grounds 1 and 2, then it would follow that Ground 3 falls away. 47 In light of the conclusions expressed above in relation to Grounds 1 and 2, and there being no other matter that would require this Court's intervention on the question of the assessment of the range of objective seriousness of the offence made by the sentencing judge, there is no validity in this ground. 48 Although the applicant inflicted only one blow to the victim, it was one of considerable force. As the learned sentencing judge found, the applicant is a tall and strongly built man and, as observed above, acted without provocation from the victim and in a manner which was wholly disproportionate to what the applicant may have perceived to have been an unwillingness by the victim to disclose information as to Mr Hodge's home. 49 His conduct, in inflicting a blow of considerable force to the face of the victim was wholly unacceptable in relation to which there are no relevant mitigating circumstances. The sentencing judge was also fully entitled to have regard to the degree of harm suffered by the victim, particularly where the infliction of harm was intentional, whether or not the applicant intended to inflict the degree of serious injuries that the victim in fact suffered. The substantial injury suffered by the victim in the present case needs no emphasis. 50 Accordingly, given the nature and circumstances of the offence under s.35(2) of the Crimes Act, and taking into account the Form 1 matter involving a separate victim, the sentence imposed, in my opinion, cannot in any respect be said to be one that is either unreasonable or plainly unjust. It was a sentence that fell well within the range of a sound sentencing discretion. 51 The orders I propose are:-

(2) Appeal dismissed. 52 LATHAM J: I agree with Hall J. **********

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