Connelly v R

CATCHWORDS: CRIMINAL LAW - appeal and new trial - appeal against sentence - whether error in not taking into account provocation by victim - held no error - no point of principle

Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912

CASES CITED : R v Chhay (1994) 72 A Crim R 1 Regina v White, New South Wales Court of Criminal Appeal, 23 June 1998, unreported

PARTIES: Jason Russell CONNELLY (Applicant) Regina (Respondent)

COUNSEL: Mr S Torpey (Applicant) Ms S Dowling (Respondent)

SOLICITORS: Oliver Campbell Heslop Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2008/3955

McCLELLAN CJ at CL PRICE J R A HULME J

8 December 2009 Jason Russell CONNELLY v Regina Judgment 1 McCLELLAN CJ at CL: I agree with Justice R A Hulme. 2 PRICE J: I agree. 3 R A HULME J: This is an application for leave to appeal against the asserted severity of the sentence imposed upon the applicant for an offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. For such an offence there is prescribed a maximum penalty of imprisonment for 25 years (s 33 Crimes Act 1900) and a standard non-parole period of 7 years (Part 4 Div 1A Crimes (Sentencing Procedure) Act 1900).

4 Her Honour Judge English sentenced the applicant in the Newcastle District Court on 19 December 2008 to imprisonment for 5 years 11 months 12 days with a non-parole period of 3 years 5 months 16 days. The sentence was specified to commence on 8 December 2007, the date of the applicant's arrest.

5 The offender asked, pursuant to s 33 Crimes (Sentencing Procedure) Act, that his guilt in respect of an assault upon the same victim be taken into account and he pleaded guilty, pursuant to s 166 Criminal Procedure Act 1986, to related summary offences of assaulting and intimidating the victim's partner. For those two offences the judge imposed concurrent fixed term sentences of imprisonment for 12 months and 6 months.

6 The sole ground of appeal is that the judge erred by failing to take into account that the applicant was provoked by the victim. It relates solely to the primary offence.

7 There was no dispute about the facts. Late in the afternoon of Saturday 8 December 2007 the victim, Mr Raymond Harrison, and his partner, Ms Melissa Gould were walking home. Their 11 month old son was being pushed in a pram. They happened to pass by the applicant's home. Mr Harrison and Ms Gould entered the front yard from where Mr Harrison called out to the applicant. He was at home at the time with his partner, Ms Stacey Gaynor, her 6 year old daughter and her parents. The applicant came to the front verandah and there was a discussion which involved Mr Harrison asking for the repayment of a debt. The amount involved was less than $40.

8 The applicant said that he was not going to repay the money and indicated that Mr Harrison and Ms Gould should leave. He then walked down the front steps and approached the pair, saying "I'll take you ... and you out". He then pushed Mr Harrison in the upper part of his body which caused Mr Harrison to fall backwards over the pram. That act constituted the assault that the applicant asked the judge to take into account. The pram tipped over and the baby became distressed.

9 Mr Harrison picked up an empty stubby bottle which had fallen from the pram and chased the applicant down the side driveway. He threw the bottle in the direction of the applicant and it shattered, either by hitting the side of the house or the applicant. The applicant continued to run away. He came across Ms Gaynor and her daughter at the back of the house and urged them to quickly go inside. They all went inside and closed the back door.

10 Mr Harrison called out, "What do you think you're doing tipping my baby's pram over". Both Ms Gaynor and her father went to the front of the house and told Mr Harrison to leave. He and Ms Gould then left with their child and continued their walk home.

11 About five minutes later they were approached by the applicant in his car. The car skidded to a stop. Mr Harrison approached in order to prevent the applicant getting to Ms Gould and the baby. The applicant alighted from the car with an object in his hand. Various witnesses gave varying descriptions of the object, including that it was like a short baseball bat. Ms Gould called out, "Put the bat down. That's not fair. Ray hasn't got a weapon". The applicant responded, "You're gone". He then started to swing the object in front of and at the height of Mr Harrison's head. Mr Harrison took a few steps back to avoid being struck and then turned to see where Ms Gould and the baby were. At that moment the applicant swung the object with both hands on the handle and struck Mr Harrison to the left side of his head. He immediately fell to his hands and knees, screaming, "I can't see". He then ran away out of fear of being further struck.

12 The applicant called out, "Run or you'll get more of this". He then approached Ms Gould who was holding the pram and said, "You're next cunt, and that thing in the pram". He then pushed her, causing her to fall backwards into a brick fence. The pram toppled over. Those facts constituted the related summary offence of assault.

13 When the pram tipped over the baby bumped his head on the pavement and started to cry. The applicant then said to Ms Gould, "I've got something for you. Don't sleep a fucking wink tonight. I'm going to burn your house down with you and the kid in it". Those facts constituted the related summary offence of intimidation.

14 Having observed this, Mr Harrison armed himself with a fence post and ran back towards the applicant. When they were each standing on either side of the applicant's car, Mr Harrison threw the fence post at the driver's side door, smashing the window and damaging the door. He then ran away. The applicant chased him but then returned to his car and drove off.

15 Mr Harrison was taken by ambulance to Cessnock District Hospital and from there he was transferred to John Hunter Hospital where he remained for four days. He suffered a ruptured cornea, facial lacerations and multiple orbital and facial fractures. He lost the eye. A few days after he was released he was readmitted for surgery to repair the fractures. He underwent a left orbital floor reconstruction and repair of the left zygomaxillary orbital complex with multiple plates and screws inserted. He remained in hospital for a further two days.

16 Mr Harrison made a victim impact statement in which he related how he had been unable to resume his employment in his trade as a boilermaker. He now wears a glass eye. His face where the plates and screws were inserted is numb. He has experienced multiple psychological problems. He is required to take medication. He has become socially withdrawn. The judge concluded that he suffers substantial ongoing physical and emotional harm.

17 The applicant is 38 years of age. As a child he suffered a significant head injury following an accident whilst riding a bicycle. His father is in poor health. His mother died some years ago. The applicant developed an addiction to "speed" and "ice" following his mother's death.

18 The judge had before her a report of neuropsychological testing by Dr Susan Pulman. The applicant was found to have a verbal IQ and full scale IQ in the extremely low range. His non-verbal IQ was assessed as being in the borderline range. He has a marked impairment of memory and capacity to learn. He exhibits behavioural difficulties consistent with cognitive impairment. Comparison with earlier test results revealed that he has suffered deterioration in his overall level of intellectual functioning. He satisfies the criteria of having a mild intellectual disability.

19 Reports by Dr Adam Martin, a forensic psychiatrist, were also before the judge. It was Dr Martin's opinion that the applicant had features of low intelligence and difficulties with cognitive tasks such as concentration, memory and language skills, probably as a result of his acquired brain injury. He also has frontal executive dysfunction with problems such as impulsivity, poor planning and judgment. Dr Martin thought that the applicant also displayed symptoms of amphetamine dependence. He was also of the opinion that the applicant is impulsive, has difficulty forming judgment, and is liable to extreme outbursts of anger with impaired memory for what has done. His inability to control his temper and his sudden rages are, in the opinion of the doctor, secondary to the brain damage.

20 The judge specifically took into account that the applicant suffers from a significant brain injury resulting in mild intellectual impairment. She said that she regarded his offending behaviour as being clearly linked to his mental illness which was exacerbated by his continuing abuse of prohibited drugs. She found that the causal connection between the applicant's mental health and the offence reduced the importance of general deterrence although she also found that specific deterrence and protection of the community "does loom somewhat larger".

21 The judge noted that it was "surprising" that with those two features the applicant had only minor criminal antecedents. The applicant's criminal history comprised convictions for offences of drink driving, goods in custody, larceny, assault, possession of prohibited drugs and driving offences. These matters had been the subject of fines and bonds. The judge took into account that at the time of the instant offence the applicant was subject to two s 9 bonds for offences of goods in custody. When he was arrested for the instant offence he was also charged with driving whilst disqualified and driving an unregistered and uninsured vehicle. He was fined for the latter two offences but imprisoned for two months for the offence of disqualified driving. That sentence was specified to commence on 5 March 2008. The sentence imposed by the judge totally subsumed that sentence.

22 The applicant pleaded guilty on the date his matter was listed for trial, although the Crown Prosecutor informed the judge that his representatives had put the Crown on notice of the plea four days earlier. The judge allowed a discount of 15 percent and there is no complaint by the applicant about that.

23 The judge found that the applicant was "truly remorseful and contrite". She regarded his prospects of rehabilitation as "guarded". She referred to the recommendation of Dr Pulman that the applicant would benefit from psychological support, anger management training and drug and alcohol counselling specifically designed for clients with a history of traumatic brain injury. She also noted that the applicant retained the support of his father and his partner who both gave evidence in the sentence proceedings.

24 Special circumstances were found that warranted a reduction of the proportion of the overall sentence represented by the non-parole period. These were said to be the fact that the applicant had not previously been in custody and that the effects of his brain injury would make incarceration more onerous. The judge also referred to the need for a lengthy period of specialised supervised parole in accordance with the recommendations of Dr Pulman.

25 The judge stated that were it not for the applicant's brain injury the offence would have fallen within the middle of the range of objective seriousness. In coming to that conclusion she took into account that at the time Mr Harrison was struck he had offered no violence towards the offender. She found that the level of force used by the applicant with the weapon was substantial. The injury was serious and Mr Harrison had suffered substantial ongoing permanent physical and emotional harm. She specifically referred to the offence involving the use of a weapon and being committed in the presence of a child, albeit a baby.

26 An issue before the judge was whether she should find in the applicant's favour that he had been provoked by Mr Harrison and this constitutes the sole ground of appeal.

Ground: That the learned sentencing judge failed to take into account as a mitigating factor that the applicant was provoked by the victim pursuant to s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999.

27 This ground is concerned with the following passage from the judge's remarks: I am asked to find that the applicant was provoked by the perceived attack upon him and his partner. Had this offence been committed at that moment, that would have been a finding open to make. However, the victim had left and the offender made a conscious decision to get into his motor vehicle and drive to find the victim. At the time he assaulted the victim, the victim was not acting in an aggressive way towards him or provoking him in any way. There was a break in the causal nexus in the circumstances.

28 The first "complaint" that was made was that "it does not appear that her Honour was concerned that the victim's conduct was not capable of supporting a conclusion that the applicant was provoked". So much may be accepted. It was possible that the act of Mr Harrison chasing the applicant down the side of the house and throwing a beer bottle at him which broke and shattered around him could be regarded as provocation. The issue, however, was whether the act of the appellant attacking Mr Harrison with a bat some 5 minutes later and 500 metres away was the product of any such provocation.

29 The second "complaint" concerns the gravity of the provocation. Reference was made to the evidence given by the applicant that he was angry because he had just had a bottle thrown at him and, he claimed, at his fiancée and daughter. There was evidence that the applicant was liable to outbursts of anger because of his cognitive deficits. It was submitted that it was "not clear whether the applicant's cognitive deficits were taken into account in assessing the gravity of the provocation". The first point to make is that the judge did not find that there was provocation and so there was no occasion for her to consider its gravity. Further, it must be noted that the judge did find that there was a link between the applicant's offending behaviour and his mental illness and she made this finding after considerable reference to the evidence as to the applicant's impaired intellectual functioning. Specific reference was made to the opinion of Dr Martin that the applicant was liable to extreme outbursts of anger and had an inability to control his temper and his sudden rages.

30 It was then submitted that the applicant did experience a loss of self-control. He did not give evidence to that effect because he claimed to have no memory of what occurred after the bottle was thrown. However, on behalf of the applicant it was submitted that there was other evidence to support a finding that there was a loss of self-control. Dr Martin was asked to report on whether the applicant had the capacity to form the specific intent to inflict grievous bodily harm. He responded in the affirmative but said that it was "in the context of sudden explosive rage secondary to a dispute and physical altercation with the alleged victim". In a further report in relation the applicant's capacity to form the intent, he stated that the applicant "reports essentially being provoked in an escalating argument over money, especially after allegedly being hit by glass and seeing a bottle being thrown near his family".

31 The fourth "complaint" is that the judge was in error in finding that provocation was a finding that was open if the applicant had acted immediately upon Mr Harrison throwing the bottle at him. It was submitted that there is no requirement for contemporaneity for provocation to apply as a mitigating factor. Reference was made to the judgment of Gleeson CJ in R v Chhay (1994) 72 A Crim R 1 in support of this proposition which is uncontroversial.

32 I do not interpret the judge's remarks as amounting to a statement that provocation cannot be established if the response to the provocative act is not immediate. She found that there was not a causal nexus, not only because of the time that elapsed but because of what occurred in that period - Mr Harrison left and the applicant made a conscious decision to get into his car to go and find him. She also took into account that when the applicant found Mr Harrison, Mr Harrison was not acting aggressively or provocatively. What this involved was the judge making findings of fact. They were findings that were open on the evidence. Her conclusion that provocation was not established was an available one.

33 There is something of an air of unreality about the applicant's contentions. Sight should not be lost of the fact that it was the applicant who initiated the violence that occurred. He was physically and verbally aggressive in response to Mr Harrison's request for the repayment of a debt. Mr Harrison responded by throwing a bottle at or near him. The applicant became enraged at this. He said in his evidence, "I was angry, not, like I was angry mate. I got a bottle thrown at me, at me, and not just me, me fiancée and me daughter". He then said that he did not remember what occurred after that. The other evidence established that some five minutes later he attacked Mr Harrison with an implement like a bat and was also physically and verbally aggressive towards Ms Gould.

34 Spigelman CJ stated in Regina v White, New South Wales Court of Criminal Appeal, 23 June 1998, unreported: It is not the case that every explanation of conduct constitutes a matter of mitigation. The circumstances in which motive, whether characterised as provocation or not, may be a mitigating factor must be confined to cases in which motive impinges upon the moral culpability of the prisoner. These can include mental, emotional or medical problems or impulsive conduct.

35 In the present case, whether or not the conduct of the victim was characterised as provocation, there is no doubt that the judge was alive to the circumstances in which the offence occurred and took into account the applicant's impaired intellectual functioning as reducing his moral culpability. That impaired intellectual functioning included an inability to control temper and liability to extreme outbursts of anger. The judge was fully cognisant of this. It was relevant to explain the applicant's offending conduct and the judge took it into account in finding that the offence was less objectively serious that it otherwise would have been, absent the applicant's mental condition.

36 I am not persuaded that there was any error in the exercise of the judge's fact finding task or in the manner in which she exercised her sentencing discretion. The assault upon Mr Harrison was a serious one and he suffered substantial adverse physical and psychological consequences. In all of the circumstances I regard the sentence imposed as quite moderate. Even if error had been established I am of the view that no lesser sentence would be warranted: s 6(3) Criminal Appeal Act 1912.

37 I proposed that leave to appeal be granted but the appeal be dismissed. 38 McCLELLAN CJ at CL: The orders will be as proposed by Justice R A Hulme.

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