Carberry v R [2013] ACTCA 20

Court of Appeal (ACT)|2013-05-09|Before: Higgins CJ, Gilmour J, Nield AJ, Burns J

1. The appellant is Robert Carberry. He has appealed from a sentence imposed upon him on 19 October 2012 by Burns J for the offence of recklessly inflicting grievous bodily harm upon the complainant, Mr JAL. The sentence was imprisonment for 6 years, reduced from 7 years on account of his guilty plea, apportioned into a non parole period of 4 years 3 months and a parole period of 1 year 9 months. The grounds of appeal are that:

(2) Burns J erred in rejecting the appellant's expression of remorse; and

(3) Burns J erred in his assessment of parity between the appellant and the co-offender, Christopher Colin Crawford.

2. As we have said, the offence committed by the appellant was that of recklessly inflicting grievous bodily harm upon the complainant. This is an offence contrary to s 20 of the Crimes Act 1900 (ACT), for which the prescribed penalty as at 22 August 2011 was imprisonment for a maximum of 10 years. We note that as and from 24 November 2011 the prescribed penalty has been imprisonment for a maximum of 13 years.

3. The circumstances in which the offence was committed are contained in the Statement of Facts dated 17 July 2012 provided to Burns J. Taken from that Statement, this is what happened.

4. At about 2:30pm on 22 August 2011 the appellant and Mr Crawford happened upon the complainant who was walking from D block to E block within the Ainslie Village in Campbell, in the ACT. After some words had passed between Mr Crawford and the complainant, the complainant attempted to open the door into E block, so as to leave the appellant and Mr Crawford, but the door was locked. Then, after something happened which caused the complainant to fall to the ground and to cry out for help, and what happened is not revealed in the evidence, the appellant stomped on the complainant's head a number of times, using significant force, and Mr Crawford kicked the complainant's back and legs a number of times, after which they fled the scene of the attack. We consider this attack to be a serious example of the offence of recklessly inflicting grievous bodily harm on someone.

5. As a result of being attacked and beaten, the complainant suffered a large extradural haematoma extending in the temporal lobe from the interior pole to the middle cranial fossa with multiple injuries to the middle meningeal artery. He underwent a right craniotomy, with evacuation of a right temporal epidural haematoma. He was discharged from hospital on 29 August 2011. We consider that this injury, which was caused by the appellant stomping on the complainant's head, was a serious, even life-threatening, injury.

6. In due course, after the appellant and Mr Crawford had been arrested and charged with an offence, on 09 July 2012 both the appellant and Mr Crawford appeared in the Supreme Court for arraignment upon the charge and, on each of them being arraigned, the appellant with the charge of recklessly inflicting grievous bodily harm upon the complainant and Mr Crawford with aiding and abetting the appellant in the commission of his attack upon the complainant, each pleaded guilty to the respective charge. The pleas of guilty were acknowledged by the Crown as having been entered at an early time, thereby entitling each offender to a discount in sentence.

7. On 13 September 2012 both the appellant and Mr Crawford appeared before Burns J for sentencing. In relation to the appellant, Burns J received the Statement of Facts, photographs of the complainant taken when he was in hospital which showed the extent of his head injury, the appellant's criminal record, two Pre Sentence Reports, a psychiatrist's report and a CADAS report related to the appellant from the Crown Prosecutor and three testimonials in support of the appellant from the appellant's counsel. We note that, whereas Mr Crawford gave evidence before Burns J, the appellant did not give evidence before Burns J.

8. On 19 December 2012 Burns J sentenced both the appellant and Mr Crawford, albeit that the appellant was the first to be sentenced. As we have said, Burns J sentenced the appellant to imprisonment for 6 years, reduced from 7 years on account of the guilty plea, apportioned into a non parole period of 4 years 3 months from 02 September 2011 to 1 December 2015 and a parole period of 1 year 9 months from 2 December 2015 to 1 September 2017. Burns J sentenced Mr Crawford to imprisonment for 4 years, reduced from 5 years on account of the guilty plea, apportioned into a non parole period of 2 years 9 months from 25 August 2011 to 24 May 2014 and a parole period of 1 year 3 months from 25 May 2014 to 24 August 2015.

The first ground of appeal - the sentence is manifestly excessive

9. We fail to see that a starting point of imprisonment for 7 years in the present case is excessive. As Burns J said, the attack upon the complainant was cowardly, unprovoked and vicious and it was committed in company. The appellant stomped on the complainant's head when he was lying, helpless, upon the ground, causing the complainant to suffer a serious, even life threatening, injury. As we have said already, we see this attack upon the complainant as a serious example of the offence of inflicting grievous bodily harm upon someone. We consider that the subject offence is well above the middle of the range of objective seriousness for offences of its kind.

10. We consider that the starting point of imprisonment for 7 years, albeit towards the top of the range, to be within the sentencing discretion of Burns J.

The second ground of appeal - Burns J erred in rejecting the appellant's expression of remorse

12. The appellant relied upon the statement of Ms Carey, who wrote the CADAS report, that "he was remorseful for his actions" and upon his guilty plea as showing his remorse for having committed the offence. The Crown Prosecutor relied upon the latest Pre Sentence Report, that "the offender's reluctance to discuss the subject offence, together with an apparent tendency to minimise his involvement in the offending is a cause for concern. The offender's disinclination to offer an explanation or view in regard to the incident gives this Service no confidence in terms of the offender's perceived ability to address his offending behaviour, particularly as he is unwilling to offer an admission that he was in fact present when the offence took place". Burns J said that "I do not accept that the [that is, the early guilty plea] demonstrates significant remorse on your part" and, also, that "I do not accept that you are remorseful for your actions. I consider that you are sorry for the position that you now find yourself in, but that you really have not given much thought as to what you did to your victim and [to] the effect that it may have had upon him".

13. We are not satisfied that Burns J rejected entirely the appellant's expression of remorse, notwithstanding that there is conflict between the first and second statements of Burns J. We consider that, as the appellant did not give evidence before Burns J, so that Burns J could assess for himself the genuineness of the appellant's expression of remorse, Burns J was entitled to be cautious in accepting that the appellant was remorseful for what he had done.

The third ground of appeal - Burns J erred in his assessment of parity between the appellant and Mr Crawford

"Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, difference sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options."

as per Dawson and Gaudron JJ in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 (as at 301-302).

16. There are differences between the appellant and Mr Crawford, as follows:

(1) the appellant is aged 29 years and Mr Crawford is aged 26 years;

(2) the appellant has a longer and more varied criminal record than the criminal record of Mr Crawford;

(3) although Mr Crawford instigated the initial contact with the complainant, and kicked the complainant's back and legs, the appellant attacked the complainant's head, causing the injury which necessitated hospitalisation and surgery;

(4) the appellant was charged with the offence of recklessly inflicting grievous bodily harm upon the complainant, whereas Mr Crawford was charged with the offence of aiding and abetting the appellant in his commission of the offence against the complainant; and

(5) the appellant had shown some, but not significant, remorse (by his guilty plea), whereas Mr Crawford had demonstrated (by his guilty plea and his evidence) his remorse which was accepted as genuine by Burns J.

17. We consider that, because of the differences between the appellant and Mr Crawford, the appellant could not have a justifiable sense of grievance because the sentence imposed upon him is more severe than the sentence imposed upon Mr Crawford.

Another issue - the difference in the discount in sentence allowed for the guilty plea

19. As we have said already, on 09 July 2012 both the appellant and Mr Crawford entered a guilty plea to the offence with which each had been charged and the Crown acknowledged that the pleas of guilty had been entered at an early time. Burns J allowed the appellant a discount in sentence of about 15% (from imprisonment for 7 years to imprisonment for 6 years) and Mr Crawford a discount in sentence of 20% (from imprisonment for 5 years to imprisonment for 4 years). Burns J said that the discount in the appellant's sentence for his guilty plea reflected the utilitarian value of the plea, whereas the discount in Mr Crawford's sentence for his guilty plea reflected both the utilitarian value and his remorse.

20. We consider that the difference in the discount in sentence given to the appellant and to Mr Crawford is explained by what Burns J said in allowing the discount he did on account of the early pleas.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the respondent: Director of Public Prosecutions

Solicitor for the appellant: Darryl Perkins Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (32 paragraphs)

Parties

Cases Cited (2)