Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223 | Case summary

Judgment

HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.
DAVIES J: I agree with Adamson J.
ADAMSON J: The applications of Richard Cao and Dylan McGregor-Macdonald (the applicants) for leave to appeal against their sentences were heard together for convenience. Each applicant alleges that the sentencing judge erroneously sentenced him for the more serious offence of recklessly inflict grievous bodily harm in company, instead of reckless wounding in company, to which each pleaded guilty. Mr Cao raised an additional parity ground. The sentences for each applicant were imposed on the same day, 12 February 2020, by the same judge, Buscombe DCJ. The applicants were co-offenders. It is convenient for the reasons of this Court to be expressed in a single judgment, although the applications for leave to appeal and appeals are distinct.
Each of the applicants was charged on indictment with the following two counts: first, assault occasioning actual bodily harm in company of David Keogh; and, second, reckless wounding in company of Nick Wong. The offence in the first count carried a maximum penalty of 7 years' imprisonment. The offence in the second count carried a maximum penalty of 10 years' imprisonment with a standard non-parole period (SNPP) of 4 years' imprisonment. Mr McGregor-Macdonald asked for the offence of common assault of Scott Smith to be taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for his sentence on count 1.
Each of the applicants pleaded guilty and each received a discount of 25% pursuant to s 22 of the Crimes (Sentencing Procedure) Act.
Mr Cao was sentenced to an aggregate sentence of 4 years' imprisonment commencing on 20 January 2020 and expiring on 19 January 2024 with a non-parole period of 2 years commencing on 20 January 2020 and expiring on 19 January 2022. The indicative sentence for count 2 was 3 years' imprisonment with a non-parole period of 18 months and the indicative sentence for count 1 was 2 years' imprisonment.
Mr McGregor-Macdonald was sentenced to an aggregate sentence of 4 years and 4 months' imprisonment commencing on 4 February 2020 and expiring on 3 June 2024 with a non-parole period of 2 years and 2 months' imprisonment commencing on 4 February 2020 and expiring on 3 April 2022. The indicative sentence for count 1 (taking into account the offence on the Form 1) was 2 years and 4 months' imprisonment and for count 2 was three years' imprisonment, with a non-parole period of 18 months.
The proceedings on sentence in respect of both applicants were heard by Buscombe DCJ on 12 February 2020. The parties tendered documents and made submissions. Neither applicant nor any other person gave oral evidence. The sentencing judgment was delivered ex tempore at the conclusion of the sentence proceedings that day.
At the commencement of the reasons, his Honour correctly stated the offences to which each applicant had pleaded guilty, the respective maximum penalties and the further offence on the Form 1 which was to be taken into account in respect of Mr McGregor-Macdonald.
His Honour summarised the facts that had been agreed, from which the following narrative is also based.
At 12.30am on 1 January 2019, Scott Smith was at the Parramatta Bus Interchange, sitting on a fixed seat in a row, waiting for a bus. Shortly after he sat down, David Keogh, whom he knew, joined him and they began to converse. At about 12.44am the applicants arrived at the interchange. Mr McGregor-Macdonald noticed Mr Keogh's watch and walked up to him, grabbed the watch and said, "Mad watch, man." Mr Keogh felt uncomfortable because of Mr McGregor-Macdonald's proximity and took a step back. Suddenly, Mr Cao punched Mr Keogh with a closed fist on his left jaw. Mr Keogh put his head downwards to protect himself and tried to get away. Mr Smith stood up but before he could do anything, Mr McGregor-Macdonald ran towards him and jumped into the air and hit him with a closed fist.
Mr Keogh walked away but tripped and fell to the ground towards the road divider. The applicants kicked him at least ten times and punched him on the face and body. One of the kicks struck Mr Keogh on the jaw and broke his teeth-plate. Mr Smith approached Mr Keogh to help him but Mr McGregor-Macdonald asked him if he wanted to be stabbed and put his hand down his trousers. Mr Smith stepped back, fearing that Mr McGregor-Macdonald might have a knife.
Nick Wong, a bystander, intervened and asked the applicants what they were doing. Mr McGregor-Macdonald said that Mr Keogh had started it. Mr Wong said that he did not care who started it and that he would call the police. As soon as Mr Wong took his phone out of his pocket, Mr McGregor-Macdonald pushed him to the ground and used his knee to hit him twice in the eye and knocked his glasses off. Mr McGregor-Macdonald punched him at least six times on the jaw. Mr Keogh got up. He had a lot of blood on his face, forehead and eyes. The applicants tried to punch him but missed. Mr Keogh punched Mr McGregor-Macdonald who fell to the ground.
As the applicants were walking towards a nearby restaurant, the police arrived. Mr Wong was still lying on the ground nearby, surrounded by a group of concerned people. When questioned by the police, he was able to identify the applicants as having attacked him.
The applicants were arrested and searched. After they had recovered from their intoxicated state, they were entered into custody. In a recorded interview, Mr Cao said that he did not remember anything as he had taken five Xanax tablets and some alcohol. Mr McGregor-Macdonald was also interviewed and admitted that he had been intoxicated by alcohol and prescription medication.
Mr Keogh's right calf was swollen; he was tender on the right fibula and suffered pain in the right calf and ankle. He was found to have sustained an undisplaced fracture in the head and neck of his right fibula. There were several lacerations. He was admitted to the Emergency Short Stay Unit overnight and was discharged the following day. His denture plate was broken. Mr Smith suffered a sore cheek and a headache. Mr Wong suffered a fracture of the medial wall of the orbit which his Honour noted was "described by the doctor as representing a serious injury", in addition to nausea, visual blurriness, dizziness and headaches. He suffered multiple facial injuries.
When determining the objective seriousness of count 1, his Honour described the offence as "a completely unprovoked, violent attack upon a man who had simply been waiting at a bus-stop". His Honour noted that Mr Cao threw the first punch at Mr Keogh but that, thereafter, both applicants had participated in the attack. His Honour considered that kicking the face of a victim who is on the ground, which he described as a "very cowardly act", increased the level of seriousness. The sentencing judge assessed the objective seriousness of count 1 as being "within the mid-range level of objective seriousness". As to parity, his Honour noted that Mr Cao instigated the violence and "can be seen in that regard to be more involved in that offence than Mr McGregor-Macdonald."
When his Honour addressed the offence of reckless wounding in company, he repeated the treating doctor's description of the fracture of the medial wall of Mr Wong's orbit as "a serious injury" and observed that Mr Wong's injuries were "clearly significant". His Honour assessed the objective seriousness of the reckless wounding offence as just below the mid-range of objective seriousness.
On the question of parity, his Honour said: "As I cannot find beyond reasonable doubt that Mr Cao actually physically touched Mr Wong, McGregor-McDonald was more involved in that offence than Mr Cao."
His Honour addressed the effect of the assault on Mr Smith, for which Mr McGregor-Macdonald was responsible, which was on the Form 1, and noted that it had an impact on the sentence to be imposed on Mr McGregor-Macdonald for count 1.
His Honour set out the respective subjective circumstances of each applicant. Mr Cao was 19 at the time of the offending, had a very limited criminal history, which did not disentitle him to "some leniency" in his sentence. The sentencing judge noted that he was of Vietnamese background, born in Sydney and raised in the Liverpool area. His Honour noted that Mr Cao had a supportive family and a good work history. Mr Cao's parents separated when he was 18 years old due to his father's infidelity, which "came as a shock to all the family". His Honour noted that Mr Cao had not given evidence at the sentence proceedings but that, according to a psychologist's report, he displayed some insight into the causes of his offending and the role of substance abuse. The sentencing judge found that Mr Cao was "genuinely remorseful" and had good prospects of rehabilitation. His Honour found special circumstances on the basis of his age and prospects of rehabilitation.
Mr McGregor-Macdonald was 18 at the time of the offending. He noted that the only other offence on his record was committed on the same date as the subject offending. He became subject to an 18-month community corrections order as a consequence of that offence and performed appropriately in the context of that order. His Honour found that his record did not disentitle him to some leniency. His Honour noted that Mr McGregor-Macdonald was a young indigenous male who was born in Sydney. His parents separated when he was 7 and he has had little contact with his father since. His mother and other close relatives continue to support him. His Honour noted that he left school after completing Year 10 to study carpentry. He had ceased work at about the time of the offences because of family issues and substance abuse. However, he had a positive testimonial regarding his work. He had difficulties with substance abuse, which increased after the death of his grandfather. His Honour noted the psychologist's opinion that he met the threshold for anxiolytic use disorder but that this was currently in remission.
His Honour considered that Mr McGregor-Macdonald was "genuinely remorseful for his behaviour".
In summary, his Honour found: "[Mr McGregor-Macdonald] too is young, has a supportive family, a limited criminal history and the ability to engage in employment. He too has good prospects for rehabilitation."
His Honour made a finding of special circumstances in relation to Mr McGregor-Macdonald.
After having consistently referred, correctly, to the offence in count 2 as being "reckless wounding", his Honour, at page 15 of the remarks shortly before imposing the sentences, changed the wording, as is evident from the following extracts from the judgment: "As I said, I will utilise the aggregate sentencing provisions. I will firstly record the indicative sentences and, in relation to the recklessly cause grievous bodily harm offence, an indicative non-parole period. …Mr Cao, you are convicted of the two offences to which you have pleaded guilty. On the recklessly inflict grievous bodily harm in company offence in relation to Mr Wong, there is an indicative sentence of three years imprisonment, with an indicative non-parole period of 18 months … Mr McGregor McDonald, would you please stand? You are convicted of the two offences to which you have pleaded guilty. In relation to the recklessly inflict grievous bodily harm in company offence in relation to Mr Wong, there is an indicative sentence of three years imprisonment, with an indicative non parole period of 18 months…" [Emphasis added.]

The injury or injuries that constituted the wounding

Wounding requires some breaking or cutting of the interior layer of the skin. Neither applicant had been charged with an offence which required proof of grievous bodily harm. The agreed facts contained the following passages which were relevant to the injuries suffered by Mr Wong: "Wong took his phone out of his pocket to call the police, at which Macdonald pushed him, causing him to fall on the ground. Macdonald used his knee to hit him twice in the eye, knocking his glass off, the first time. Macdonald punched him twice, 'really hard' on his lips and punched him hard at least six times on the jaw. Macdonald punched Wong in the face and head area … Wong was found lying on the road, further up Argyle Street, out the front of the bus interchange, with a number of people around him. He had a lot of blood on his face, forehead and eyes. … Wong suffered fracture of the medial wall of the orbit, described by the doctor as representing a serious injury, in addition to nausea, visual blurriness, dizziness and headaches, multiple facial injuries, primarily on his right eye that was significantly swollen as well as swelling of the upper and lower eyelids."
No distinction was drawn by the parties at the sentencing hearing between those of Mr Wong's several injuries which amounted to wounding; those which were related to the injuries which constituted wounding; and those which were discrete injuries unrelated to the wounding. Nor did his Honour make any such distinction in the reasons for judgment. Mr Wong's injuries plainly involved some breaking of the skin, which led to bleeding. The Crown can be taken to have accepted that the injuries sustained by Mr Wong did not amount to grievous bodily harm, since it charged and accepted a plea to reckless wounding in company. His Honour did not find that Mr Wong's injuries amounted to grievous bodily harm.
On appeal, Ms Goodwin, who appeared for Mr Cao, and Mr Kent, who appeared for Mr McGregor-Macdonald submitted that, notwithstanding the inclusion of the orbital fracture in the agreed facts, his Honour was not entitled to take into account injuries inflicted on Mr Wong that were neither wounds nor injuries which were more serious than the wounds. They relied on the decision of this Court in McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 (McCullough). In addition, Mr Kent relied on the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (De Simoni) that a court cannot take into account as an aggravating factor a circumstance that would warrant conviction for a more serious offence. He submitted that, in effect, the sentencing judge took into account that Mr Wong had suffered grievous bodily harm, when the pleas by the applicant were to an offence against s 35(3) and not s 35(1) and that he had been punished for a more serious offence than that to which he pleaded guilty.
Before turning to the relevant authorities, it is useful to note that the version of s 35 of the Crimes Act which provided for malicious wounding in McCullough was, relevantly, as follows: "35 Malicious wounding or infliction of grievous bodily harm (1) Whosoever maliciously by any means: (a) wounds any person, or (b) inflicts grievous bodily harm upon any person, shall be liable to imprisonment for 7 years. …"
In McCullough, the applicant pleaded guilty to malicious wounding of his 60-year-old mother contrary to s 35(1)(a) of the Crimes Act. The applicant, who was intoxicated following his attendance at a wake, grabbed his mother and punched her a number of times to the face and body. He held her in a headlock and continued to punch her. In an attempt to extricate herself, she bit his finger. He pushed her into the bath and continued to rain blows on her and kicked her. At one point he bit her left finger and shouted, "How do you like that?" He then punched and kicked her again. Someone came to the door, which gave her the opportunity to try to get out of the bath. The applicant braced himself against the wall which caused her head to hit the wall with such force that it broke through the tiled wall. He repeated this action, again forcing her head to hit the wall. He then turned on the bath tap causing hot water to splash her. The attack continued until interrupted by a neighbour. The applicant's mother suffered several injuries: a wound to her left index finger where the applicant bit her, a fracture of her right wrist, bruising and swelling to both eyes, lacerations to her face and pain to the right side of her rib cage. She was required to spend five days in hospital. Her finger was stitched and her wrist placed in a cast.
McCullough was unrepresented at the application in this Court although he was represented at the sentence hearing. The Court (Howie J, McClellan CJ at CL and Simpson J agreeing) found that the sentencing judge was not entitled to take into account the fractured wrist because it did not amount to wounding and was more serious than the wounding. Howie J said, of present relevance: "[35] The offence charged was malicious wounding. It was not the malicious infliction of grievous bodily harm. At the time of the commission of the offence s 35(1) contained two offences: s 35(1)(a) malicious wounding and s 35(1)(b) malicious infliction of grievous bodily harm. A wounding does not necessarily amount to grievous bodily harm and grievous bodily harm does not necessarily include a wounding. The two offences were included in the one section and carried the same penalty but they were distinct offences. [36] The applicant was charged under s 35(1)(a). A wound is the penetration of the internal layer of the skin. In this case there were a number of wounds. There was a bite to the finger that required three sutures. There were also very minor lacerations of the head that did not require suturing. The medical report does not number or describe these lacerations so minor were they. Arguably the most severe injury was the fracture of the wrist and there was very severe bruising around the eyes. The pictures of the victim are truly pitiable. Although she spent five days in hospital, obviously it was not a result of the wounds. [37] Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence: see R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at [27]. [38] The Judge was clearly entitled to take into account the nature of the assaults that gave rise to, or surrounded, the wounding. She was also entitled to take into account other injuries inflicted in the course of conduct resulting in the wounding that were less serious than the wounding. In my opinion her Honour was not, however, entitled to take into account other injuries inflicted upon the victim that were not wounds and were more serious than the wounds. A broken wrist is not encompassed in a charge of wounding and, particularly in the case of a 60 year old, was considerably more serious than the wounds. I do not believe that the Judge could take into account that the victim spent five days in hospital because that was not identified as being a result of the wounding or of injuries that were less serious than the wounding." [Emphasis added.]
These remarks were obiter as the challenge to the sentence succeeded on the ground of manifest excess, as appears from [42], where his Honour said: "In any event a sentence before discount of 5½ years for the malicious wounding offence as against a maximum penalty of 7 years was manifestly excessive whatever injuries were taken into account by her Honour … The sentence before discount should be 4 years." [Emphasis added.]
A different, but related, question arose in Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38, which concerned offences against s 33 of the Crimes Act, which in the relevant form at the time of the offending provided that: "Whosoever: maliciously by any means wounds or inflicts grievous bodily harm upon any person … within intent in any such case to do grievous bodily harm to any person… shall be liable to imprisonment for 25 years."
It can be seen from a comparison between s 33 (in Bourke) and s 35 (in McCullough) that s 33 was regarded as a much more serious offence by reason of the relevant intent. It was argued on behalf of Bourke that the sentencing judge had erred by taking into account, on a plea to malicious wounding with intent to do grievous bodily harm, injuries which amounted to grievous bodily harm, because he had been charged with malicious wounding and not malicious infliction of grievous bodily harm. This Court dismissed the appeal on the basis that it was undoubtedly appropriate for the sentencing judge to take into account other injuries which were included in the agreed facts and which were related to the wounding, although such injuries constituted grievous bodily harm: McClellan CJ at CL at [53]-[54] (Price and R A Hulme JJ agreeing). Their Honours distinguished McCullough on the basis that the injuries in that case that constituted grievous bodily harm (the fractured wrist) were unrelated to the injuries which constituted the wounding. They also distinguished it on the basis that the applicant in McCullough was charged with malicious wounding simpliciter which disentitled the sentencing judge from taking into account injuries which did not amount to wounding but which did amount to grievous bodily harm.
In Kingsley v R [2019] NSWCCA 19 (Kingsley), the applicant was sentenced following a plea to reckless wounding in company contrary to s 35(3) of the Crimes Act, which was in the same form as applied to the applicants in the present case. Section 35 provides in part: "35 Reckless grievous bodily harm or wounding (1) Reckless grievous bodily harm - in company A person who, in the company of another person or persons - (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty - Imprisonment for 14 years. (2) Reckless grievous bodily harm A person who - (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty - Imprisonment for 10 years. (3) Reckless wounding - in company A person who, in the company of another person or persons - (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty - Imprisonment for 10 years. (4) Reckless wounding A person who - (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty - Imprisonment for 7 years. …"
Because s 35 provides for four offences of differing seriousness depending on whether the offence was committed in company or not and whether the harm amounted to grievous bodily harm or wounding, the principle in De Simoni is particularly relevant.
The agreed facts in Kingsley made reference to the injuries sustained by the victim, which included fractures. The applicant alleged that the sentencing judge had erroneously taken into account fractures in a plea to wounding. This Court dismissed the appeal. McCallum J (Leeming JA and Bellew J agreeing) said, of present relevance: "[28] The fractures were identified in each case as a consequence of the relevant 'penetrating' injury. It was the fact that the wounds penetrated the victim to the extent of causing fractures and that was a relevant fact, indicating the force with which the wounds must have been inflicted. It was appropriate for the judge to state those facts correctly. [29] It might have been open to the Crown to contend that the fractures amounted to grievous bodily harm; presumably that was at least part of the basis for the primary counts on the indictment. But the Crown accepted pleas to the alternative charges and, in doing so, must be taken to have abandoned any suggestion of grievous bodily harm, relying only on wounding. That is the context in which sentence was passed. [30] In his sentencing judgment, the judge did not attempt to characterise the bone injuries in any way. His Honour did no more than to recite those injuries in the terms in which they were described in the agreed facts. The judge was compelled by pressures of time to reserve his decision after the proceedings on sentence but the judgment was delivered orally and it is clear from its terms that, in reciting the facts, the judge was reading from the agreed facts document and giving a potted summary of its contents. [31] Further, in assessing the objective seriousness of the offences, the judge did not emphasise the fractures as separate injuries. It is clear enough that his Honour had regard to the fractures as being indicative of the force with which the wounds were inflicted but that was not inappropriate. The primary focus of the agreed facts, and his Honour's discussion of them, was on the seriousness of the acts that caused the wounds."
In the present case, it was common ground that the fracture to the medial wall of Mr Wong's orbit was referred to in the agreed facts. It was also common ground that no submission was made that this injury ought to be disregarded. There was no suggestion by the Crown that any of the injuries amounted to grievous bodily harm. Indeed, its acceptance of the plea established the contrary. In these circumstances, I reject the submission that the sentencing judge breached the principle in De Simoni.
The applicants submitted that there was no evidence that the orbital fracture involved a wound and that, in accordance with McCullough, the sentencing judge ought not to have taken it into account.
This Court is generally loath to entertain points on appeal which could and should have been put to the court at first instance: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] (Johnson J, McClellan CJ at CL agreeing). An appeal is not an opportunity to reformulate arguments based on what emerges in remarks on sentence. This is particularly so in circumstances where neither of the applicant's counsel saw fit in the court below to make the point presently taken and both acceded to the inclusion of facts relating to the fracture, now said to be irrelevant, in the agreed facts which were tendered on sentence.
The agreed facts included that Mr Wong had blood on his face and around his eyes. In these circumstances I consider that his Honour was entitled to take the fracture into account as being associated with the wounding and indicative of the force of the punches delivered to his face which resulted in both the wounding and the fracture. As I have said above, although his Honour considered the fracture to be significant, his Honour did not find that it amounted to grievous bodily harm. I am not persuaded that his Honour took into account the fracture in an impermissible way.
For these reasons, neither Mr Cao's ground 2 nor Mr McGregor-Macdonald's sole ground has been made out.

Cao v R; McGregor-Macdonald v R

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