Crimmins v R

Court of Criminal Appeal (NSW)|2019-10-02|Before: Bathurst CJ, Johnson J, Fullerton J

Solicitors: O'Brien Winter Partners (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2017/248533 Decision under appeal Court or tribunal: District Court Date of Decision: 18 October 2018 Before: Wilson SC DCJ File Number(s): 2017/248533

Judgment

BATHURST CJ: I agree with the judgment of Fullerton J and with her Honour's reasons.
JOHNSON J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal a sentence of 6 years with a non-parole period of 4 years imposed by Wilson SC DCJ on 18 October 2018 after entering a plea of guilty in the Local Court to one count of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence was committed on 28 May 2017 and carries a maximum penalty of 10 years' imprisonment and a standard non-parole period of 4 years. The ratio between the head sentence and the non-parole period was reduced following a finding of special circumstances.

The facts

The applicant was sentenced on the basis of agreed facts, which were extensively summarised in the sentencing reasons. For present purposes, it is unnecessary to set them out in full.
The applicant and victim were well known to one another, having been friends since high school. They were sharing a home unit with a third person at the time of the offence. They were both aged 23 at that time.
On the evening of 28 May 2017, the applicant, the victim and their flatmate were together at a party. They were all intoxicated. The applicant was ejected from the party because of his level of intoxication and aggression. He left with the victim. They were seen at that time by a police officer arguing and wrestling with each other outside the party. The officer observed both men to be heavily intoxicated.
A friend drove the victim, the applicant and their flatmate away from the party at approximately 11pm. The level of aggression between the applicant and the victim did not dissipate during the course of that journey. The driver eventually told the three men to get out of the car. The victim then telephoned his sister and asked her to pick them up. When she arrived at around 11:52pm, she described her brother as "fairly drunk" but not slurring his words or stumbling. In contrast, she described the applicant as "off his face", loud and swearing.
During the course of the drive to their unit, the argument between the victim and the applicant about the applicant's behaviour at the party continued. The applicant said at one point, "I could take you both on, I'll show you how tough I am". The victim's sister dropped the three men at the bottom of the driveway to their unit and left.
At about 12:20am, the applicant telephoned triple-0 and said, "me and my friend just had an argument … He's unconscious as fuck … I knocked him out". He then disconnected the call.
At about 12:35am, the applicant arrived at the Wyong Hospital in his vehicle. He and the flatmate assisted the victim into the hospital using a wheelchair.
At 1:05am, police arrived at the hospital. The applicant was noted to be wearing bloodstained pants. He was not wearing a shirt. There was blood on his upper body and hands and cuts to the top of both his hands. Arrangements were made to photograph the applicant and his flatmate, however they left the hospital before that could be arranged.

The victim's injuries

On admission to the hospital the victim was diagnosed with a left frontotemporal acute subdural haemorrhage and an associated intracerebral haemorrhage. He also sustained a fracture to the base of the skull. He underwent neurosurgery, including a left decompressive craniotomy and evacuation of the haematoma. A significant section of the bony structure of his forehead was removed to allow access to the haematoma. He suffered secondary complications from his hospitalisation, including pneumonia and septicaemia. A rehabilitation specialist diagnosed a traumatic brain injury (described as life threatening) with language impairment affecting expression and cognitive function impairment diminishing his capacity for problem solving and planning. A hearing impairment was also identified.
Although by July 2018 the victim was able to return to work as a plasterer, he continues to suffer memory impairment and has been recently diagnosed with unilateral hearing and balance loss resulting from the skull fracture, satisfying the audiological criteria for a cochlear implant in the right ear.

The applicant's accounts to police and others

At the hospital on the night in question the applicant gave the first of a number of false accounts to police as to how the victim was injured. He said that upon returning home from a party he and his flatmate went inside the unit while the victim stayed outside having a cigarette. He said that a short time later he went outside and saw the victim lying on the driveway with blood coming out of his nose and a man running away. That account was maintained when the applicant was spoken to by detectives later that morning at the hospital.
The false account was maintained the following morning when the applicant spoke with a mutual friend of his and the victim in the course of his reconstruction of a fictional assault scenario. He maintained that account later that day in a formal statement to police. In that statement he claimed that he terminated the triple-0 call because he was too drunk.
The false account was repeated in a formal record of interview with police conducted on 22 June 2017. By this date the police had obtained telecommunication intercept warrants for the applicant's phone and his flatmate's phone and listening device warrants for their home unit. It would appear that the information gathered by those means was utilised to frame the questions asked in the record of interview. It is not necessary to set out any of the recorded conversations. Suffice to note that in one exchange, the flatmate said that he was on the phone when the applicant "started punching on" and during another exchange they agreed that they would "stick to [their] story".
The applicant was arrested on 15 August 2017. He was cautioned and declined the opportunity to be interviewed.

The applicant's subjective circumstances

The applicant's subjective case was based upon an absence of any criminal convictions, a claim of good character and a submission that the sentencing judge would be satisfied that he was remorseful.
A number of references were tendered although, as noted by the sentencing judge, none referred to the offence and none of the referees appeared to have any knowledge of it. A psychological report was tendered in which the applicant's background and childhood was noted, including the severe physical abuse he suffered throughout his childhood. The sentencing judge accepted that the applicant's childhood and adolescence were challenging but not such as to entitle him to invoke reliance on the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
A pre-sentence report dated 12 September 2018 was also tendered in which the applicant told the author of the report that over the six and a half hours prior to the offence he had consumed ten schooners of beer and a "copious amount of Bourbon and Rum". He told the author that his level of intoxication would have "affected his actions in terms of not realising how hard he pushed the victim". The author also noted that the applicant accepted responsibility for the offence and "appeared" very remorseful.

The issue of remorse

The applicant gave evidence in the sentence proceedings. The sentencing judge acknowledged that the applicant appeared upset and had expressed remorse. The applicant acknowledged the delay of twelve months between the date of the offence and the plea of guilty which he explained on the basis of his feelings of shame. He said that he always intended to apologise to the victim but that he "wasn't strong enough". He confirmed that he spoke to the victim by telephone whilst he was undergoing rehabilitation and that he had plenty of opportunities to tell his friend what had happened but he could not bring himself to do so.
He agreed that he colluded with his flatmate to avoid being held responsible for the injuries he inflicted and that he misled a range of people in the immediate aftermath of the incident and for some months thereafter. He said he was always intending to take the blame for what he did but could not face it. He acknowledged the seriousness of the injuries he inflicted. He said: … I loved him like a brother. I never intended for something like that to happen and it has and I am willing to face what I deserve. … It breaks my heart … there's nothing I can do to take it back I can only ask for forgiveness.
During the sentence proceedings, the applicant also gave an account of the incident in which he suggested the fight was initiated by the victim when, after he said something about the victim's girlfriend and not wanting her to visit the unit, the victim "took off his shirt and [came] straight at me". He went on to assert that punches (one each) were exchanged and that he then retaliated by pushing the victim, causing him to fall, hitting his head on the ground. The sentencing judge referred to the applicant's account of the incident in his sentencing reasons. He interpreted the applicant's evidence as an attempt to attribute part of the blame for the fight to the victim which his Honour considered undermined his claim to the benefit of a finding of remorse.
The sentencing judge was urged to find that the applicant had discharged the onus, on the balance of probabilities, of establishing remorse as a mitigating factor in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, in the sense that he accepted responsibility for his actions and had acknowledged the injury, loss and damage that resulted. The sentencing judge was not satisfied remorse was established. He reasoned to that conclusion in the following way: I am mindful of the recent decision of the New South Wales Court of Criminal Appeal in Suksa-Ngacharoen v R [2018] NSWCCA 142, in which the Court stressed that it is important for the Court to carefully consider the question of remorse before making a favourable finding in that regard. Section 21A(3)(i) of the Act also provides further insight into how purported remorse is to be approached by a sentencing judge. Whilst after pleading guilty and participating in the various reports for the purposes of the sentencing exercise and also in the course of giving evidence here today, the offender has demonstrated what prima facie might be regarded as remorse. However, in view of the circumstances surrounding the offending and in particular his conduct in the months after the offending and indeed up until the guilty plea, which was over a year after the offending was committed, I decline to find remorse in this particular case.
When giving consideration to general sentencing principles, the sentencing judge regarded accountability as worthy of considerable weight in the sentencing process as to which he said: … accountability is a matter which looms large in the sentencing process in this case given the conduct of the offender between 28 May 2017, when the offence occurred and 3 July 2018 when he pleaded guilty to the charge. His continual denial of any involvement and the concoction of the story with [the flatmate] demonstrates that he was, at least at that time, not accepting that he was accountable for his actions. As I previously explained, I declined to find any remorse or contrition on his part. This has been taken into account in arriving at the appropriate sentence in order to ensure accountability.

The first ground of appeal

In the applicant's written submissions, the applicant's evidence in the sentencing hearing was restated and was said to "point to" his genuine remorse. While it was accepted that the assessment of remorse is discretionary, no attempt was made in those submissions to identify a House v The King (1936) 55 CLR 499; [1936] HCA 40 error in the exercise of the sentencing judge's discretion to refuse to take remorse into account as a mitigating factor, or any error of principle in his approach to that question. No oral submissions were advanced in support of the first ground of appeal.
To the extent that the applicant's submissions on appeal were a refinement of the submissions advanced before the sentencing judge - in the sense that it was contended on appeal that the applicant had always genuinely felt remorse but had internalised his feelings such that, notwithstanding the delay, his expressions of remorse and regret in his evidence were a sufficient basis for a finding of remorse as a statutory mitigating factor - I regard the comprehensive consideration the sentencing judge gave to the issue of remorse as accommodating that nuance.
I am not satisfied that the error the subject of the first ground of appeal has been made out.

The second ground of appeal

The applicant's counsel also relied upon his written submissions in support of the complaint the subject of the second ground of appeal.
It is not necessary to restate the principled approach this Court must take to considering a ground of appeal that alleges a sentence is manifestly excessive (see Hughes v R [2018] NSWCCA 2). In this case, there is no challenge to the sentencing judge's finding of objective seriousness in the mid to high range, a finding which was clearly open given the life threatening injuries the applicant inflicted (the ongoing consequences of which are themselves serious).
Although his Honour made no finding to this effect, in my view, the objective evidence, including cuts to the applicant's hands and the blood that was seen on the applicant's clothing and his body at the hospital and the severity of the injuries that were sustained by the victim, render the applicant's account of the assault, given for the first time in his evidence, as implausible.
There is also no challenge to the sentencing judge's emphasis on the need for the sentence to reflect the principle of general deterrence and denunciation, given that the injuries were inflicted in the context of alcohol-fuelled violence (see R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31).
I do not regard the judicial sentencing statistics furnished by the applicant as establishing a range of sentences for a breach of s 35(2) of the Crimes Act. Even accepting that the sentence imposed is at the top of the statistical range, that does not foreclose on the question whether, in the particular circumstances, it is a sentence that this Court would conclude is "unreasonable or plainly unjust".
Absent a finding of remorse, the only factors in mitigation of sentence were the applicant's prior good character (albeit qualified by the fact that his referees make no mention of being aware of his offending) and a finding that he was unlikely to reoffend. I am satisfied that those favourable findings are adequately reflected in the sentence imposed.
After taking into account the statutory guideposts of 10 years' imprisonment as the maximum period of imprisonment for an offence contrary to s 35(2) of the Crimes Act and a standard non-parole period of 4 years, I am not persuaded that a sentence of imprisonment of 6 years with a non-parole period of 4 years is manifestly excessive.
The orders I propose are: 1. Grant leave to appeal. 2. The appeal is dismissed.

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: 08 November 2019

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