Chemaissem v R

Ground 1 - failing to find as mitigating factor that injuries were not substantial

1. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('Sentencing Procedure Act') relevantly provides as follows: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (g) the injury, emotional harm, loss or damage caused by the offence was substantial, … The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, … (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. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.
2. Thus it is an aggravating factor if the injury, emotional harm, loss or damage caused by the offence was substantial, and it is a mitigating factor if the injury, emotional harm, loss or damage caused by the offence was not substantial.
3. I agree, as the applicant submitted, that the sentencing judge treated the nature and extent of the injuries suffered by the victim as an aggravating factor in respect of the objective gravity of the offence, in the sense that, while concluding that the offence fell "only just below mid-range", it would have fallen a little further below the mid-range had the injuries been slighter. This follows from her Honour's catalogue of aggravating factors, before "on the other hand" the mitigating factors, as Bellew J explains. [1] However, I do not agree that this involved any error.
4. The victim suffered bruising (but no fracture) to his left hand; a wound to the left parietal (posterior) area of the skull behind the right ear, with a fracture of the skull at the site of the wound; and a wound to the occiput (the back of the skull). The skull wounds penetrated the scalp and deeper tissues, disrupting the galea, a tough fibrous tissue next to the skull. Both wounds were closed with staples.
5. In the sentencing proceedings, the applicant tendered a report of Professor Duflou, whose evidence was neither contradicted nor challenged by the Crown. When tendering Professor Duflou's report before the sentencing judge, counsel for the applicant said only this: "The next is a report of Professor Johan Duflou dated 21 June 2019. And, your Honour, really all I commend to your Honour in that is, because Professor Duflou is very learned, I would ask your Honour just to read the last few pages from para 18."
6. Relevantly, in those pages of the report, [2] Professor Duflou observed that the victim's injuries included scalp lacerations which required medical intervention in the form of cleaning of the wounds, stapling, and the administration of therapeutic substances, albeit that they would not be expected to cause discomfort for more than a number of days, and full healing, albeit with residual scarring, would be expected; a "minimally depressed skull fracture deep to one of the scalp wounds", albeit without associated identified damage to the brain; and moderate bleeding, without hypovolaemic shock or other manifestations of significant blood loss. Professor Duflou reported that complications of the treated scalp injuries such as infection and persistent bleeding would be uncommon; that the hand injury could be expected to have progressed to full recovery in a short period of time; and that abrasions on the lower extremities could be expected to heal fully after a matter of days, without scarring or residual adverse effects.
7. Professor Duflou was of the opinion that the scalp and skull injuries, taken together, would not be viewed as "really serious bodily injury" from a medical perspective, and would also not be expected to cause "any permanent or serious disfigurement of a person". He was therefore of the opinion that the injuries sustained by the victim were not of a severity which amounted to grievous bodily harm, though he was of the view that they could reasonably be categorised as being of a severity which amounts to actual bodily harm.
8. Professor Duflou's opinion that the injuries did not amount to grievous bodily harm reflects the position that "grievous bodily harm" requires that the injury be a "really serious" one, though it does not require that the injury be permanent or that the consequences of the injury be long lasting or life threatening, [3] whereas "actual bodily harm" includes any hurt or injury calculated to interfere with the health or comfort of the victim which is more than merely transient and trifling. [4] In a passage which was cited with approval by the House of Lords in R v Brown, Swift J, delivering the judgment of the Court of Criminal Appeal in R v Donovan, said: [5] "'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling."
9. The applicant's counsel in the sentencing proceedings did not, at least in terms, submit that the injuries were 'not substantial'. This is unsurprising, as Professor Duflou's report was directed to a different question. He was asked to provide an opinion as to whether the injuries occasioned to the victim were "really serious" so as to amount to grievous bodily harm, or merely "actual bodily harm".
10. In the Concise Oxford Dictionary, [6] "substantial" is defined as "Having substance, actually existing, not illusory; of real importance or value, of considerable amount". In the present context, in my opinion, it means "having substance, other than trivial". An injury which was, in Swift J's words, no more than "merely transient and trifling", would be insubstantial.
11. However, injuries can be substantial without being "really serious". If saying that an injury does not amount to "really serious harm" is regarded as equivalent to saying that it is insubstantial, then every injury that falls short of grievous bodily harm would be insubstantial. Every case of actual bodily harm, falling short of grievous bodily harm, would involve an injury that is not substantial, and would therefore attract the mitigating factor in s 21A(3)(a) of the Sentencing Procedure Act. That would be a surprising result, and it is unlikely to have been intended by the legislature.
12. The Crown's response to Professor Duflou's report, before the sentencing judge, was: "However, the Crown also says that it is within mid range. And it is within mid range, not necessarily because of the injuries but the way in which the injuries were inflicted. Now, Professor Duflou indicated in his opinion that the injuries are not of a really serious nature. Well, that of course is made plain by the offence. It is predicated on 33(1)(b), not (1)(a), which is - well, the other way around, sorry, it is not causing grievous bodily harm with intent to cause grievous bodily harm. It is wounding with intent to cause grievous bodily harm. So, in effect that renders Professor Duflou's opinion otiose because the Crown does not say there is really serious harm. It was the intent to cause really serious harm and that is what informs the objective seriousness of the offending."
13. In substance, that response was that the injuries were "not of a really serious nature" (emphasis added), and thus did not amount to grievous bodily harm; that the applicant was not charged with occasioning grievous bodily harm; and that Professor Duflou's opinion was therefore of no significance - it was "otiose". The concession that there was not "really serious harm" was no more than a concession that the injuries did not amount to grievous bodily harm, which was not charged. It was not a concession that the injuries were insubstantial.
14. So understood, it is unsurprising that the sentencing judge did not refer to Professor Duflou's report: his conclusion that the injuries did not amount to grievous bodily harm was beside the point, or 'otiose', as the Crown had submitted.
15. The applicant did not submit that the injuries were insubstantial. The Crown did not concede that the injuries were insubstantial. The submissions did not proceed on the basis that it was accepted that the injuries were insubstantial. In fact, the injuries were not insubstantial. The sentencing judge rightly regarded them as an aggravating factor. No error is apparent.

Ground 2 - manifest excess

1. The principles relevant to a submission that a sentence is manifestly excessive are well-established, as Bathurst CJ observed in Kerr v R: [7] "[113] The circumstances in which a sentence will be found to be manifestly excessive are well established. The Court will only intervene if the sentence is unreasonable or plainly unjust, such that the Court may infer that in some way there has been a failure of the sentencing judge to properly exercise the sentencing discretion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [59]. In that context, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29. [114] As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
2. The offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act, to which the applicant pleaded guilty, carries a maximum penalty of imprisonment for 25 years, and a standard non-parole period of 7 years.
3. As I have noted, the sentencing judge found that this particular offence fell "only just below [the] mid-range" of objective gravity. The applicant submitted that having regard to the 'insubstantial' nature of then injuries and the provocation, it should be assessed as being in the lower range.
4. Subjectively, the appellant had a record of offences of violence which disentitled him to leniency. [8] The sentencing judge accepted that he was genuinely remorseful - albeit that his remorse appears to have been belated - and that his prospects of rehabilitation were reasonable.
5. General deterrence was a weighty consideration.
6. The applicant was entitled to a discount of 25% for his early plea of guilty.
7. The sentencing judge was referred to Kennedy v R ('Kennedy') [9] and Anderson v R ('Anderson'), [10] in which sentences of imprisonment for six years and six months with a non-parole period of three years and six months, and seven years with a non-parole period of three years and nine months, were upheld on appeal.
8. Kennedy was sentenced for a single count of wounding with intent to cause grievous bodily harm. He stabbed a fifteen year-old victim in the chest twice, causing life threatening injuries, the victim having earlier taunted the offender to come out of his house, which he did, armed with a knife. The victim required life-saving surgery. The offender was on a bond at the time of the offence. The offence was assessed as being in the "upper mid-range" of objective seriousness. The offender was "a very young man of 18 at the time of the offence", from a very disadvantaged background, had been subject to significant bullying from peers, and had received psychological counselling and antidepressants in the past. He had a criminal history, and was on a bond at the time of the offence. He received a 10% discount for his plea of guilty; thus undiscounted, the sentence would have been seven years and three months. The non-parole period of three years and six months was about 54 per cent of the head sentence; but for the finding of special circumstances (expressed as his fragile mental condition, age, first time in custody, and need for help and supervision on release to give him the mechanisms to control his anger and become more disciplined in relation to violence), the non-parole period would have been in the order of four years and ten months.
9. Anderson was sentenced for a single count of wounding with intent to cause grievous bodily harm. Without provocation, he struck the victim in the head with a pool cue so violently that the pool cue was broken, causing a four centimetre laceration, directly after the victim had been similarly assaulted by one of the offender's friends. Anderson continued his assault until bystanders intervened. The offence was assessed as falling within the mid-range of objective seriousness. The offender had a criminal record including violence, a history of substance abuse, and mental health issues. He received a discount of 15% for his plea of guilty: undiscounted, the sentence would have been eight years and four months. A finding of special circumstances resulted in a non-parole period of three years and nine months, being about 54%.
10. For the reasons given in connection with Ground 1, I cannot accept that the nature of the injuries was a mitigating factor such as to reduce the objective gravity of the offence from the level assessed by her Honour. While I accept that there was some provocation, I agree with Bellew J that it is of only slight weight in this case. Notably, Bellew J - even allowing the nature of the injuries as a mitigating factor - still views it as "marginally below the mid-range of objective seriousness", [11] with which view I respectfully entirely agree.
11. The standard non-parole period of seven years implies that, in a case in which there are not "special circumstances", an offence in the mid-range of objective serious will attract an undiscounted head sentence of nine years and four months. In the present case, the sentence of six years and six months implies an undiscounted sentence of eight years and eight months, an appropriate degree below the mid-range starting point to which I have referred as to reflect the assessment that this offence was marginally below the mid-range. However, the non-parole period of three years and nine months implies an undiscounted period of five years, well below the standard non-parole period of seven years, and involves a substantial allowance for special circumstances, being in the order of only 57% of the total term, in contrast to the statutory starting point of 75%.
12. It is true that the objective gravity in each of Kennedy (upper mid-range) and Anderson (mid-range) was assessed as higher than the applicant's (only just below mid-range), yet his undiscounted sentence was lengthier (eight years and eight months, as against seven years and three months and eight years and four months respectively). It is also true that he was entitled to a greater discount (25%) for his early plea of guilty than were they (10% and 15% respectively). However, Kennedy at least had a significant subjective case, based notably on his young age, as well as his disadvantaged childhood; although Anderson's subjective case appears to have been unremarkable, and the basis for the finding of special circumstances in his case does not emerge from the report. However, while direct comparison with Kennedy and Anderson might have supported a slightly shorter sentence for the applicant, the very small number of comparable cases does not describe a range. While her Honour found some assistance in those cases, as do I, her Honour was aware of the differences, noting that there were "both similar and contrasting features in each, including the timing of the pleas of guilt". Rather than supporting a submission that the sentence is manifestly excessive, [12] their relationship to the present case tends to show that the sentence is within the generous ambit of a sentencing judge's discretion.
13. The sentence is not manifestly excessive. Indeed, it might be thought that the extent of the allowance for special circumstances was generous.

Conclusion

1. Even if the error alleged in Ground 1 were established, I would not allow the appeal. It is insufficient to establish an error in the reasoning process; before interfering with a sentence, the Court must be satisfied that some other sentence is warranted in law. As Sully J said in R v Simpson: [13] "Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and re-sentence. Before that can happen properly in law, the condition specified in s.6(3) of the Criminal Appeal Act 1912 (NSW) must be satisfied: that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is 'warranted in law'. I agree with the observations made in this connection by Lee AJ in Astill (No. 2) [1992] 64 A Crim R 289 at 303, 304."
2. Even if, contrary to my opinion, her Honour was in error in not treating the 'insubstantial' injuries as a mitigating factor, I would not have been of the view that, in all the circumstances, including in particular those to which I have referred in considering the question of manifest excess, a lesser sentence was warranted. In particular, the non-parole period of three years and nine months was no more than the minimum period of full-time custody which the applicant should be required to serve.
3. In my opinion, leave to appeal should be granted, but the appeal should be dismissed.
4. BELLEW J: Shams Eldine Chemaissem (the applicant) pleaded guilty in the Local Court to an offence of wounding with intent to cause grievous bodily harm contrary to s (33)(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 25 years. A standard non-parole of 7 years imprisonment is prescribed.
5. The applicant adhered to that plea when he appeared for sentence before the District Court. On 18 December 2019, he was sentenced to imprisonment for 6 years and 6 months to date from 1 May 2019, with a non-parole period of 3 years and 9 months.
6. The applicant now seeks leave to appeal against that sentence on the grounds more fully discussed below.

THE FACTS OF THE OFFENDING

1. The facts of the offending were agreed between the parties and were set out by the sentencing judge as follows. [14]
2. At about 3:40pm on 31 January 2019, the applicant was driving in a westerly direction along Vaughan Street, Lidcombe. At the intersection of Vaughan Street and Woodburn Road in Auburn, the applicant came to a stop, in the first of two lanes, at a set of traffic lights. [15] The victim, who was 65 years old, was driving his vehicle towards the same intersection, and came to a stop in the lane next to the applicant. Another person, Albert Ladewig, came to a stop in his vehicle behind the applicant. [16]
3. As the lights turned green, the applicant and the victim each drove straight ahead. About 15m past the intersection, the two lanes merged into one. The victim drove away at speed, attempting to overtake the applicant before the two lanes merged. In doing so, the back right-hand side of his vehicle collided with the front left-hand side of the applicant's vehicle, causing damage to both. [17]
4. The applicant and the victim continued to drive straight ahead for about 100m, with the victim ahead of the applicant. The applicant pulled across double yellow lines into oncoming traffic before pulling in front of the victim and stopping at a 45° angle, causing the victim to stop. [18]
5. The applicant and the victim then got out of their respective vehicles. Mr Ladewig, who had seen the collision, also stopped with a view to assisting. The victim and the applicant then began yelling at each other, with the applicant saying: You hit my car. Give me your licence.
6. The victim replied that what had occurred was the applicant's fault, at which time Mr Ladewig attempted to intervene. [19] The victim refused to exchange details because he did not want the applicant to know where he lived. Instead, the victim told the applicant to record his number plate details and go to the police. [20]
7. The argument between the applicant and the victim then escalated to what the sentencing judge described as a "push and shove," without any punches being thrown. [21] At that point, Mr Ladewig drove away and saw the victim drive away behind him. [22] The applicant then got into his vehicle and pursued the victim in an attempt to obtain his licence details. He also called 000. The victim, the applicant and Mr Ladewig then continued to drive west along Vaughan Street, Lidcombe, in the course of which the applicant overtook Mr Ladewig in order to get closer to the victim's vehicle. [23]
8. All three vehicles then pulled over into a side street. The applicant stopped next to the victim's vehicle. The victim got out and picked up a spirit level which was approximately 1.2m in length. Carrying the spirit level, he approached the applicant, who at this point was still seated in the driver's seat of his vehicle with the driver's side window down. The victim and the applicant then yelled at one another about exchanging details, the victim loudly reiterating that he would not give the applicant such information. Mr Ladewig saw the victim waving the spirit level at the applicant, at one point moving it through the open window of the applicant's vehicle. [24]
9. The victim then turned around in order to return to his vehicle. As he was putting the spirit level back in the rear tray, he saw that the applicant had moved to the back of his (the victim's) vehicle. The applicant then approached the victim and was face-to-face with him. At that point, the victim raised his fist towards the applicant and yelled at him, thinking that the applicant wanted to fight him. The victim then went to get into the driver's seat of his vehicle. The applicant approached him from behind and struck him to the back of the head with a hammer before swinging the hammer striking the back of the victim's head a second time. A bystander, Furkan Gunay, saw the victim fall to the ground at that point. Blood was pouring from his head wounds and spattered across the applicant's vehicle. [25]
10. Mr Ladewig then grabbed and held the applicant from behind whilst the applicant continued to try and lunge towards the victim, telling Mr Ladewig to let go. The applicant managed to break free from Mr Ladewig's grip. He then struck the victim a third time as the victim was trying to get up from the ground. That blow connected with the victim's hand. [26]
11. At that point the victim yelled: [27] Call the police. Call the police.
12. Mr Gunay attempted to tend to the victim's head injury. Both the victim and the applicant continued to yell at one another while the applicant was still armed with a hammer. [28]
13. Another bystander, Nurben Erkan, heard yelling from across the street and saw the applicant with the hammer in his hand. She called 000. The applicant then went back to his vehicle and put the hammer on the front passenger's side floor. He drove a short distance before stopping and waiting for police to arrive. Another bystander, Maria Panetta, approach the applicant and asked: [29] What happened? The applicant replied: [30] He smashed my car so I got a hammer and smashed him on the head. I bought this car for my girlfriend today.
14. Police arrived at the scene shortly thereafter. They cautioned and arrested the applicant before interviewing him. The applicant told police that he had been hit by the victim with a spirit level to the back of the head. He acknowledged striking the victim on the hand and said that he had struck the victim because he was attempting to assault him with the spirit level. [31]
15. The victim suffered: [32] 1. bruising to his left hand (an x-ray revealing no fracture); 2. a wound to the left parietal (i.e. posterior) area of the skull behind the right ear (a CT scan establishing that the skull was fractured at the site of the wound); 3. a wound to the occiput (i.e. the back of the skull);
16. The wounds in (ii) and (iii) penetrated the victim's scalp and deeper tissues resulting in a disruption of the galea, a tough fibrous tissue next to the skull. Both wounds were closed with staples. [33]

Ground 1 - The sentencing judge erred by failing to find, as a mitigating factor, that the injuries were not substantial

The evidence on sentence

1. A report of Professor Johan Duflou, Consultant Forensic Pathologist, was tendered in the applicant's case on sentence. That report included the following: [34] 18. THE SEVERITY OF THE INJURIES: The scalp injuries, the possible swelling and bruising of the left hand, and the abrasions on the knees and shins are all injuries of minor severity, with full recovery expected. The scalp lacerations required medical intervention in the form of cleaning of the wounds, stapling, and administration of therapeutic substances, but such injuries would not be expected to cause discomfort for more than a number of days, and full healing of the wounds, albeit with residual scarring, would be by far the most common outcome of such lacerations. Bleeding, as far as can be ascertained has been moderate, and there has not been development of hypovolaemic shock or other manifestations of significant blood loss. Complications of the treated scalp injuries such as infection and persistent bleeding would be uncommon. The hand injury, if present, can be expected to have progressed to full recovery in a short period of time. Similarly, the abrasions on the lower extremities can be expected to heal fully after a matter of days without scarring or residual adverse effect. 19. There is a minimally depressed skull fracture deep to one of the scalp wounds but there was no associated identified damage to the brain, no bleeding within the cranial cavity and no indication of long-term morbidity. It appears the patient discharged himself from hospital against medical advice and I make the assumption he has made a full recovery. Although there was a plan to admit the patient for neurosurgical observation, there would have been no need to perform neurosurgery on the patient, and any planned admission would have been solely to monitor the patient for a period of time. 20. It is my experience that skull fractures have a generally ominous connotation in the lay public mind, but from a medical perspective, a relatively minor fracture - such as the ones seen here - has few complications and little potential for long term morbidity, as long as there is no damage to the underlying brain tissue or bleeding within the cranial cavity. In this case, both these potential serious complications were looked for and excluded. Other complications can include infection and cerebrospinal fluid leak - the former was prophylactically treated with antibiotics and the latter did not occur because there was no injury to the dura mater. It is therefore my opinion that this was an uncomplicated skull fracture, where no specific treatment for the fracture was provided. 21. In summary, I am of the opinion that the scalp and skull injuries, taken together would not be viewed as "really serious bodily injury" from a medical perspective, and the injuries would also not be expected to cause "any permanent or serious disfigurement of a person". The injuries to the left hand and lower extremities are minor in severity. I am therefore of the opinion that the injuries sustained by [the victim] are not of a severity which amount to grievous bodily harm. I am however of the view that the injuries identified can reasonably be categorised as being of a severity which amounts to actual bodily harm.
2. At the time of tendering the report, counsel then appearing for the applicant specifically drew the attention of the sentencing judge to those particular paragraphs. [35]
3. The Crown consented to the tender of Professor Duflou's report and did not require him for cross-examination. In submissions to the sentencing judge, the Crown said (emphasis added): [36] Now, Professor Duflou indicated in his opinion that the injuries are not of a really serious nature. Well, that of course is made plain by the offence. It is predicated on (33)(1)(b), not (1)(a), which is - well, the other way around, sorry, it is not causing grievous bodily harm with intent to cause grievous bodily harm. It is wounding with intent to cause grievous bodily harm. So, in effect that renders Professor Duflou's opinion otiose because the Crown does not say there is really serious harm. It was the intent to cause really serious harm and that is what informs the objective seriousness of the offending.

The reasons of the sentencing judge

1. In assessing the objective seriousness of the offending, the sentencing judge said the following: [37] The objective seriousness of this offence is informed by its commission on a public road in an incident of what is known as "road rage"; the age of the victim (noting that the offender was 25 years old); the use of a hammer; the infliction of multiple blows (one when the victim was on the ground); the persistent violence in the sense that the offender had to be pulled away from his attack on the victim; and the injuries sustained by the victim, including two deep wounds (one to the side and one to the back of the head), and a fractured skull, demonstrative of a significant level of force. On the other hand, the offence was not planned and it was committed in circumstances where the victim had, moments earlier, threatened the offender, who was seated in his car, through his open window with a spirit level. In my view of [sic] the objective seriousness of the offence is only just below mid-range.

Submissions of the applicant

1. Counsel for the applicant emphasised that s 21A(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) mandates that a sentencing court take into account any mitigating factors referred to in s 21A(3) that are relevant and known. In this context, counsel directed attention to s 21A(3)(a) which provides that it is a mitigating factor if the injury, emotional harm, loss or damage caused by an offence was not substantial.
2. Counsel pointed out that in the context of assessing the objective seriousness of the applicant's offending, and specifically when making reference to the injuries suffered by the victim, her Honour made no reference to the opinions of Professor Duflou, notwithstanding that those opinions had specifically been drawn to her Honour's attention, and had been the subject of a submission by the Crown. In relation to those opinions, counsel emphasised that: 1. Professor Duflou had concluded that the victim was expected to make a full recovery; 2. the victim had declined formal admission to, and had discharged himself from, hospital; and 3. there was no victim impact statement tendered before the sentencing judge.
3. Whilst accepting that the objective seriousness of the offence was not to be determined solely by reference to the victim's injuries, counsel submitted that the nature and extent of such injuries were obviously significant when making such a determination. Counsel submitted that the Crown's statement to the sentencing judge [38] amounted to a concession that there was no substantial injury sustained to the victim, and that in all of these circumstances, her Honour had erred in failing to treat the victim's injuries as a mitigating factor.
4. It was further submitted that having erroneously failed to treat the victim's injuries as a mitigating factor, her Honour had compounded that error by in fact concluding that the injuries were an aggravating factor. Whilst accepting that this had not been expressly stated by the sentencing judge, counsel submitted that the structure of her Honour's reasons when addressing the objective seriousness of the offending supported no other conclusion.

Submissions of the Crown

1. The Crown accepted that the sentencing judge did not find that the offending was mitigated by the victim's injuries. However, the Crown submitted that having regard to the nature and severity of those injuries, the failure to make such a finding was not an error. The Crown further submitted that the sentencing judge had not expressly found that such injuries amounted to an aggravating factor.
2. The Crown before this Court submitted that what had been said by the Crown in the Court below regarding the victim's injuries did not amount to a concession that the injuries were not substantial. It was submitted that when read in its proper context, what had been said amounted to no more than an acknowledgement of Professor Duflou's distinction between a wound on the one hand and grievous bodily harm on the other, and an acknowledgement of his opinion that the victim's injuries did not amount to grievous bodily harm.

Consideration

1. Section 21A of the Sentencing Act provides that in determining an appropriate sentence for an offence, a court must take into account the aggravating factors in s 21A(2) and the mitigating factors in s 21A(3), to the extent that such factors are relevant and known. The Sentencing Act creates a clear dichotomy. If the injuries caused to a victim are substantial, that is an aggravating factor. [39] It is a mitigating factor if they are not substantial. [40]
2. The Oxford English Dictionary (2nd Edition) defines the term "substantial" as including the following: Of ample or considerable amount, quantity, or dimensions.
3. The term "substantial" is a wide one, and its meaning will be determined from the context in which it is used. [41] In the present case, a consideration of that context commences with the fact that the charge against the applicant was one of wounding the victim. The victim sustained two separate wounds, one to the left parietal area of the skull, and one to the occiput. The depth of those wounds was sufficient to penetrate the scalp and the deeper tissues, to the point where the fibrous tissue extending across the scalp (the galea) was disrupted, necessitating closure of the wounds with staples. Those wounds necessarily reflect the force of the blows struck by the applicant, which led to the victim sustaining a fractured skull.
4. There may be a multitude of reasons why the victim chose to discharge himself from hospital. His reason(s) for doing so are entirely unexplained on the evidence, as is the fact that no victim impact statement was provided. Further, the ultimate opinion of Professor Duflou was that the injuries did not constitute "really serious bodily injury". In other words, Professor Duflou concluded that the wounds did not amount to grievous bodily harm. The fact that an injury does not constitute grievous bodily harm does not, of itself, mean that it is not substantial.
5. However notwithstanding these matters, and particularly having regard to the manner in which the proceedings were conducted in the Court below, I have come to the view that this ground of appeal has been made out.
6. To begin with, when Professor Duflou's report was tendered the attention of the sentencing judge was specifically drawn to those paragraphs which incorporated the Professor's opinions. Counsel then appearing for the applicant made no specific submission as to how those opinions should be taken into account, or what conclusion(s) should be reached in relation to the victim's injuries when assessing the objective seriousness of the offending. However, the absence of submission is explained by the fact that the Crown specifically eschewed any suggestion that the victim's injuries gave rise to harm which was (to use the Crown's term) "really serious".
7. I am unable to accept the proposition that what the Crown said to the sentencing judge was not a concession. The Crown's unequivocal position was that the victim's injuries did not amount to "really serious harm". That is another way of saying that the injuries were not substantial.
8. It follows that in all of these circumstances, it must have been apparent that the applicant relied on Professor Duflou's opinions in support of a conclusion that the injuries were not substantial, and that the Crown conceded that to be the case. Against this background, three significant factors emerge from her Honour's reasons.
9. Firstly, in circumstances where the opinions expressed in Professor Duflou's report went to a material issue and had been specifically drawn to her Honour's attention, her Honour made no reference to the report, or to the Crown's concession, in her reasons.
10. Secondly, whilst her Honour was not bound to accept the Crown's concession, it was important that she raise any concern she may have had about it at the time, so as to give counsel for the applicant the opportunity to address it, [42] and then express a conclusion in her reasons. In circumstances where nothing was said, counsel for the applicant was entitled to proceed on the basis that the Crown's concession had been accepted by her Honour, and that there was no issue that the injuries were not substantial and were therefore a mitigating factor.
11. Thirdly, her Honour's approach to the assessment of the objective seriousness of the offending was essentially divided into two parts. Her Honour commenced by making specific reference to a series of factors which were obviously aggravating, and which included the applicant's use of a weapon and the fact that he had inflicted multiple blows with that weapon on the victim. Significantly, in the context of dealing with those aggravating factors, her Honour made reference to the victim's injuries. Having done so, her Honour then turned to consider a number of other factors which were obviously mitigating, including the absence of planning and the provocation of the applicant by the victim. It is apparent from her Honour's use of the phrase "[O]n the other hand" immediately prior to considering mitigating factors that her Honour was contrasting those factors with the aggravating factors which she had previously identified, and which had included a reference to the victim's injuries.
12. In all of these circumstances, the structure of her Honour's reasons leads me to the conclusion that her Honour found that the victim's injuries aggravated the offending. That conclusion was reached absent any reference to the report of Professor Duflou, and in circumstances where the Crown, far from submitting that the victim's injuries were an aggravating factor, had unequivocally made a concession to the contrary.
13. I should say that for my part I find the Crown's concession surprising to say the least. But for that concession, it may well have been open to the sentencing judge to find that the injuries were substantial, and thus a factor which aggravated the offending. However, it is apparent that counsel for the applicant relied on the Crown's concession, which was not further addressed in the sentence proceedings, and which was at odds with what I have found was her Honour's ultimate conclusion.
14. For these reasons, I am satisfied that ground 1 has been made out. Accordingly, the Court must re-sentence the applicant in the fresh exercise of the sentencing discretion. It is therefore not necessary to consider ground 2 which asserted that the sentence imposed was manifestly excessive. In re-sentencing the applicant, I have taken into account the submissions advanced by each of the parties in support of that ground.

RE-SENTENCE

1. I have set out the facts of the offending by reference to the reasons of the sentencing judge. Those facts are not in dispute. For the reasons I have already expressed, and in light of the manner in which the sentence proceedings were conducted in the Court below, the wounds inflicted on the victim must be regarded as a mitigating factor. I also accept that the actions of the applicant were not planned.
2. However, that is not to say that the offending was not serious. The injuries sustained to the victim reflect the force of the blows struck by the applicant with the hammer. The applicant's actions only came to a stop when he was physically restrained by Mr Ladewig. He then broke Mr Ladewig's grip, striking the victim a third time, on this occasion connecting with his hand. It is also not without significance that the applicant was 25 years of age, and the victim 65. Whilst the applicant's actions in initially informing the police about what had occurred were appropriate, his ultimate response was cowardly. It involved significant violence being perpetrated on a much older, and largely defenceless, victim. General deterrence is necessarily a significant factor on sentence, as are the statutory guideposts of the maximum penalty and the standard non-parole period which have been set by the Parliament.
3. In submissions before this Court, counsel for the applicant emphasised what was said to be the mitigating effect of the victim's provocation of the applicant. In determining whether provocation is to be regarded as a factor in mitigation, and if so to what extent, it is necessary to firstly consider whether the applicant was in fact provoked by the victim. If the Court is so satisfied on the balance of probabilities, [43] an assessment must be made as to the degree and effect of such provocation. [44] Importantly in the present case, the Court is entitled to consider that degree and effect in the context of the applicant's history of violent offending to which I have referred further below. [45]
4. The facts establish that having stopped his vehicle in a side street next to that of the applicant, the victim got out of his vehicle and picked up a spirit level which was approximately 1.2m in length. He then approached the applicant, who at this point was still seated in his vehicle with the window down. Having yelled at one another about exchanging details, the victim was observed to "wave" the spirit level at the applicant, at one point "moving it" through the open window of the applicant's vehicle. Notwithstanding the applicant's untruthful statement to police that he had been struck, [46] the undisputed facts contain no suggestion that the victim struck the applicant at any stage.
5. The victim then returned to his vehicle and as he was putting the spirit level back in the rear tray, he saw that the applicant had moved to the back of his (i.e. the victim's) vehicle. That necessarily means that the applicant had decided to get out of his vehicle and follow the victim, having taken possession of the hammer which he explained he used in his employment as a scaffolder, and which he had taken from his tool belt. [47] There was then a further altercation in which the victim raised his fist towards the applicant. It was at that point, when the victim was about to get back into his vehicle, that the applicant approached him from behind and struck him twice to the back of the head, followed by a third blow which connected with the victim's hand.
6. I am satisfied that the victim provoked the applicant, firstly by waving the spirit level and moving it through the open window of the applicant's vehicle, and secondly by raising his fist towards the applicant shortly before he attempted to get back into his own vehicle. However, on any view, the applicant's response in approaching the victim from behind without warning, and striking him twice to the back of the head with a hammer, was one which was not only inappropriate, but one which was entirely disproportionate to any provocation in which the victim had engaged. The applicant deliberately armed himself with a large weapon in circumstances where he obviously knew that using that weapon to assault the victim would likely result in injury. It is also telling that when asked by Ms Panetta what had happened, the applicant made no reference to any act of provocation on the part of the victim, but simply said that the victim had "smashed [his] car so [he] got a hammer and smashed him on the head".
7. This Court has previously recognised that there may be cases where an offender's conduct is so disproportionate to any act(s) of provocation that it will be open to find that there should be no mitigation at all. [48] Whilst I would not go so far as to reach that conclusion in the present case, the applicant's entirely disproportionate response renders the provocation a matter of minimal weight.
8. In all of the circumstances I would place the offending at a point marginally below the mid-range of objective seriousness.
9. The applicant gave evidence before the sentencing judge, in the course of which he said that he "absolutely … regretted" the offending, that he felt "shameful", and that he "blame[d] himself". [49] Those expressions of remorse are somewhat at odds with the Sentencing Assessment Report tendered before the sentencing judge which stated that the applicant blamed, and demonstrated little understanding of the impact of his offence upon, the victim [50] .
10. Also before the sentencing judge was a report of Jennifer Howell, Forensic Psychologist. [51] In discussing the offending, [52] the applicant told Ms Howell that he thought that the victim had been "unreasonable" in refusing to provide his details, but acknowledged that the incident was "serious", that his behaviour was "stupid", and that he should have driven away.
11. Whether the applicant is genuinely remorseful for his offending is difficult to determine. His statements to the author of the Sentencing Assessment Report demonstrate neither remorse nor insight into the offending. However, in the course of his sworn evidence the applicant accepted responsibility, going so far as say that he felt shameful for what he had done. That evidence was not challenged in cross-examination. I am satisfied in those circumstances that the applicant's expressions of remorse, although they came at a somewhat late stage, are genuine.
12. The applicant has a criminal history dating back to 2010 which includes the following entries: [53] COURT DATE OFFENCE OUTCOME 6 November 2015 Common assault (Domestic violence related) Section 9 Bond for a period of 12 months with conditions requiring compliance with Apprehended Violence Order 19 January 2018 Assault occasioning actual bodily harm (Domestic violence related) 12 months imprisonment suspended upon entering a s 12 Bond for a period of 12 months with conditions regarding psychological treatment 7 June 2019 Assault occasioning actual bodily harm (Domestic violence related) (Call up) - 12 months imprisonment with a non-parole period of six months 7 June 2019 Stalk/intimidate (Domestic violence related) 2 months imprisonment

1. That history disentitles the applicant to leniency.
2. The applicant pleaded guilty at the first available opportunity and is thus entitled to a discount of 25%.
3. Assessing the applicant's prospects of rehabilitation, and the likelihood of his reoffending, is difficult. The Sentence Assessment Report concluded that the applicant was a medium risk of re-offending. Ms Howell assessed the risk of re-offending as low.
4. Yikang Yang, who provided a testimonial in support of the applicant, [54] expressed a belief that the applicant could be "rehabilitated to become a useful member of society if he is with the right people". To that end, Mr Yang confirmed his willingness to provide employment to the applicant when released. An affidavit of the applicant's partner, Leah Johnson (who was the victim of some instances of the applicant's previous offending) was read on the question of re-sentence. Ms Johnson expressed her support for the applicant, and made reference to the applicant's stated optimism regarding their future.
5. Ms Howell reported that the applicant would be assisted by a program aimed at gaining a better understanding of his impulsivity and his use of violence, and expanding and consolidating appropriate strategies to manage situations of heightened arousal. [55] In the course of his evidence before the sentencing judge, having acknowledged his previous criminal history, the applicant expressed a general willingness to engage in remedial programs directed towards anger management.
6. Significantly, the s 12 bond which was imposed on the applicant on 19 January 2018 was accompanied by a series of conditions directed generally towards his rehabilitation. They included a condition that the applicant accept all reasonable advice provided by his General Practitioner, and Ms Siame Dilek, a Psychologist whom he was consulting at the time. The applicant acknowledged in his evidence that although he found the treatment from Ms Dilek useful, it was obviously not sufficient to address the entirety of his issues.
7. Whilst I am mindful of the applicant's sworn evidence as to his willingness to undertake treatment, the fact remains that he has previously been given an opportunity to engage in rehabilitative treatment as a condition of a s 12 bond. Necessarily, his prospects of rehabilitation depend, to a large extent, upon remaining willing to undertake, and adhere to, psychological treatment upon his release. In all of the circumstances, whilst I am guarded about his prospects of rehabilitation and his likelihood of reoffending, it is significant that the applicant has the support of his partner, and the prospects of employment. I am satisfied that if he does undertake and adhere to treatment, his prospects of rehabilitation are likely to be positive, and the likelihood of his reoffending reduced.
8. I am satisfied that the applicant would benefit from a longer period on parole to give him the best possible opportunity of addressing his anger management issues, so as to assist his re-integration into the community. A finding of special circumstances is therefore appropriate. In that regard, I propose to adopt the same ratio as that adopted by the sentencing judge, namely one of 57%.

ORDERS

1. I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed in the District Court is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment for a period of 6 years to date from 1 May 2019 and to expire on 30 April 2025. 5. Specify a non-parole period of 3 years and 5 months imprisonment commencing on 1 May 2019 and expiring on 30 September 2022.
2. CAMPBELL J: I agree with Bellew J.

Endnotes

1. At [73] below.
2. More fully set out in the judgment of Bellew J, at [53] below.
3. Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209 at [137] (Beazley JA), [160] (Johnson J; McCallum J agreeing).
4. R v Donovan [1934] 2 KB 498 at 509 (Swift J for Lord Hewart CJ, Swift and Du Parcq JJ); R v Brown [1994] 1 AC 212; [1993] 2 All ER 75; [1993] 2 WLR 556 at 559 (Lord Templeman).
5. [1934] 2 KB 498 at 509 (Swift J for Lord Hewart CJ, Swift and Du Parcq JJ), cited in R v Brown [1994] 1 AC 212; [1993] 2 All ER 75; [1993] 2 WLR 556 at 559 (Lord Templeman).
6. 12th ed (2011).
7. (2016) 78 MVR 191; [2016] NSWCCA 218 at [113]-[114] (Bathurst CJ); see also Hughes v R [2018] NSWCCA 2 at [86] (Payne JA, R A Hulme and Garling JJ).
8. Set out in the judgment of Bellew J at [88] below.
9. [2016] NSWCCA 123.
10. (2008) 187 A Crim R 542; [2008] NSWCCA 211.
11. At [84] below.
12. Cf Huynh v R (2008) 188 A Crim R 287; [2008] NSWCCA 216; R v Pham [2013] NSWCCA 217; MLP v R [2014] NSWCCA 183; and Kresovic v R [2018] NSWCCA 37.
13. (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [100] (Sully J); see also R v Gittani [2002] NSWCCA 139 at [6] (Sully J; Ipp AJA and Bell J agreeing); R v Barakat [2004] NSWCCA 201 at [41] (Greg James J; Beazley JA and Dowd J agreeing).
14. Commencing at AB 27.
15. AB 27.
16. AB 27.
17. AB 27.
18. AB 27.
19. AB 27.
20. AB 27.
21. AB 27-28.
22. AB 27-28.
23. AB 28.
24. AB 28.
25. AB 28-29.
26. AB 29.
27. AB 29.
28. AB 29.
29. AB 29.
30. AB 29.
31. AB 29.
32. AB 29-30.
33. AB 30.
34. AB 87-88.
35. AB 10.20.
36. AB 22-23.
37. AB 30.
38. At [23] above.
39. Section 21A(2)(g).
40. Section 21A(3)(a).
41. Majorstake Limited v Curtis (2008) 1 AC 787 at [40] per Hale B.
42. See Mohamad v R [2005] NSWCCA 406 at [11]-[14].
43. The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
44. Carroll v The Queen (2009) 245 CLR 259; [2009] HCA 13 at [17]-[19]; Horvath v R [2019] NSWCCA 285 at [55].
45. See R v Mendez [2002] NSWCCA 415 at [16] and see [56] below.
46. AB 29.
47. AB 12.19-12.38.
48. Horvath at [57] citing Mendez at [16] and R v Williams [2011] NSWSC 583 at [70].
49. AB 13.15.
50. AB 53.
51. AB 74-80.
52. AB 78.
53. AB 56-59.
54. AB 90.
55. AB 80. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2021