Daniels v R

Court of Criminal Appeal (NSW)|2016-02-15|Before: Hoeben CJ, Fullerton J, Hulme AJ

The facts for sentencing purposes

The applicant had been drinking at a hotel in Dubbo with friends for some hours on 21 December 2013 before he was ejected by security staff some time after midnight for throwing a drink. On leaving the hotel he approached a young man and, apparently in the mistaken belief that he had assaulted a friend of his inside the hotel earlier in the evening, the applicant delivered a single punch to the young man's jaw without warning and under significant force. In fact, the victim had not been inside the hotel at any time that evening. After dining at a local restaurant with friends, the victim had gone to the hotel to meet his girlfriend but had been refused entry due to a "lock out" imposed by hotel security. He was waiting for a taxi when the applicant struck him. The victim fell immediately to the ground, bleeding heavily, while the applicant maintained a fighting posture. A number of security guards intervened and physically restrained the applicant. He was arrested by police a short distance from the scene.
The incident was recorded on closed circuit television. The recording was tendered on sentence.
The victim was taken by ambulance to Dubbo Base Hospital where he was treated for a fractured mandible and malocclusion of the upper and lower teeth. On referral to the Oral and Maxillofacial Surgical Registrar at Westmead Hospital the following day, he underwent surgery involving the open reduction and internal fixation of the fracture with the application of bone plates and screws to maintain the alignment of his jaw. The plates and screws will be left in situ permanently.
In February 2014, the Registrar reviewed the victim's injuries and reported that although there was no permanent functional impairment to his jaw or any disfigurement from the injuries, he complained of residual paresthesia to the lower lip.
In a victim impact statement tendered by the Crown on sentence and dated 12 June 2014, the victim reported that following the assault he also required specialist dental treatment with the potential need for future treatment. He also reported that he was hypervigilant in his work as a farm labourer because of his injuries and that he had voluntarily withdrawn from the sporting activities he had previously enjoyed.

The applicant's subjective case

The applicant gave evidence at the sentencing hearing and was cross-examined with the Crown questioning the extent of his insight into his offending and its impact on the victim. He was asked a number of questions by the sentencing judge querying his assertion that the assault was "out of character".
The applicant also relied upon reports from Dr Olav Nielssen, a forensic psychiatrist, and a number of certificates showing his successful completion of a number of programs in custody. (I note that the applicant also told Dr Nielssen that it would be out of character for him to hit someone for no reason.)
Dr Nielssen reported as follows: The diagnosis of substance use disorder is made on the basis of [the applicant's] account of regular hazardous drinking from the age of fourteen and during adult life, and the complications of alcohol use, including the role of alcohol intoxication in this offence and in previous offences.
His Honour found that the applicant enjoyed substantial family support, having heard evidence form the applicant's mother and partner on the unsuccessful application brought under s 11 of the Crimes (Sentencing Procedure) Act which preceded the sentencing hearing. It would appear that his Honour was invited to have regard to their evidence for sentencing purposes.
Although his Honour found the applicant had a number of "mental health issues" (Dr Nielssen also reported the applicant suffered from ADHD), he was not satisfied that this was causally related to his offending. There is no challenge to that finding.
Despite the applicant's stated determination to do something about his alcohol abuse upon his eventual release, his Honour was unable to find that the applicant had good prospects of rehabilitation or that he was unlikely to reoffend. His Honour did accept that the applicant was remorseful.

The objective seriousness of the offence, including aggravating factors in s 21A of the Crimes (Sentencing Procedure) Act

After taking into account the force of the punch, the fact that it was entirely unprovoked and the nature of the victim's injuries, the sentencing judge assessed the objective seriousness of the offending as within the mid range. There is no challenge to that finding.
In considering s 21A of the Crimes (Sentencing Procedure) Act, his Honour had regard to the applicant's criminal record, which included entries for violent offending in 2011 in addition to the offence committed in February 2012 for which he was serving the balance of parole. His Honour also noted the similarities in the commission of that offence and the index offence, in particular that both victims were intentionally targeted by the applicant as deserving of retaliatory violence when they were in fact innocent of any wrongdoing, and that on both occasions the applicant was heavily intoxicated. The applicant was on bail for another offence of assault occasioning actual bodily harm at the time of the offending the subject of the sentence imposed by Syme DCJ. That offence was also committed under the influence of alcohol.
The sentencing judge resisted finding that the principles in Veen v R (No 2) [1988] HCA 14; 164 CLR 465 were enlivened, but was satisfied, to the criminal standard, that the statutory aggravating factors in s 21A(2)(j) of the Crimes (Sentencing Procedure) Act (a previous conviction including a conviction for a serious personal violence offence) and s 21A(2)(d) (an offence committed on conditional liberty) were made out.

The grounds of appeal

The applicant relied upon three grounds of appeal.
The second ground related to an order made by the sentencing judge in purported exercise of the power in s 50(1) of the Crimes (Sentencing Procedure) Act, that upon the applicant's release to parole he enter into a residential rehabilitation program and obey all reasonable directions of the Department of Community Corrections as to his ongoing treatment and counseling for alcohol abuse. The sentencing judge treated the residence condition as a form of quasi-custody which, together with what he saw as the need for the applicant to submit to intensive supervision for his abuse of alcohol, attracted a finding of special circumstances. The statutory ratio between the non-parole period and the balance of term specified in s 44(2) of the Crimes (Sentencing Procedure) Act was adjusted to 66 per cent. On the appeal it was accepted that was a generous finding.
In the course of his sentencing remarks, his Honour noted that Syme DCJ had also found special circumstances when sentencing the applicant in February 2012, principally because of his relative youth (he was then aged 19) and what her Honour found was a need for supervision on his release. In sentencing the applicant to a non-parole period of 18 months, Syme DCJ recommended that the applicant enter a full-time residential program to address his abuse of alcohol on his release to parole. It would appear he did not do so. There was evidence before the sentencing judge that the applicant's participation in various custody-based programs prior to his release to parole was marred by what were referred to as "attitude problems".
Although the imposition of the residence condition was directed to ensuring that the applicant address his continued abuse of alcohol under the close supervision inherent in a residential rehabilitation program, in imposing the residence condition as part of the sentencing order his Honour acted beyond power. Under ss 50 and 51 of the Crimes (Sentencing Procedure) Act, the power to impose parole conditions is confined to sentences of 3 years imprisonment or less. In the case of sentences exceeding 3 years, the imposition of parole conditions are matters solely for the Parole Authority (see Webster v R [2006] NSWCCA 346 at [14]; Wilson v R [2008] NSWCCA 245 at [29]; Muldrock v R [2011] HCA 39; 244 CLR 120 at [4]).
The error is conceded by the Crown.
In the applicant's written submissions, the Court was invited to set aside the parole condition as being beyond power - the approach taken by the Court in Moss v R [2011] NSWCCA 86. On the hearing of the appeal, the question arose as to whether the error should nonetheless to be characterised as a sentencing error, invoking the operation of s 6(3) of the Criminal Appeal Act 1912 (NSW).
It is accepted that upon a finding of sentencing error this Court is obligated to exercise the sentencing discretion afresh before determining whether no other sentence is warranted in law (the positive opinion provided for in s 6(3) - see Kentwell v R [2014] HCA 37; 252 CLR 601).
However, as the High Court recognised at [42], not all errors in the sentencing of offenders will vitiate the exercise of the sentencer's discretion: … A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion.
In my view, the error in the sentencing exercise the subject of the second ground of appeal is an example of an error of the kind to which the High Court in Kentwell was referring. After setting aside the parole condition (it being of no legal effect being made beyond power), the sentencing judge's appointment of a non-parole period of 3 years as the minimum period the applicant is to spend in custody is unaffected. Although his Honour clearly intended that the applicant's release at the expiration of three years should be subject to the further condition that he be willing to comply with the restrictions on his liberty that would result from his participation in a residential rehabilitation program, it was also treated as a special circumstance for the purposes s 44 of the Crimes (Sentencing Procedure) Act giving the applicant the benefit of a shorter period in full-time custody.
I do not regard the error in imposing a parole condition as part of the sentencing order as vitiating the exercise of the sentencing judge's discretion in this case. I would order that the parole condition be set aside but I would not move to re-sentence the applicant.
The two remaining grounds of appeal concern what is said to be the sentencing judge's failure to have regard to the applicant's background (the first ground of appeal), including his exposure to alcohol from a young age, and the imposition of a sentence which was otherwise manifestly excessive (the third ground of appeal).

The first ground of appeal

The applicant contends that the sentencing judge failed to have regard to two features of his subjective case, each of which should have attracted weight in the sentencing exercise in mitigation of sentence.
The first concerned an incident when the applicant was a young child, aged three or four. The applicant's mother gave evidence of an occasion when she woke to find a stranger holding her son in his arms after which she noticed changes in the manner and the content of his speech. There was no further reference to the incident in the evidence called on the applicant's behalf on sentence, nor was it a matter raised with Dr Nielssen (cf the report of Kathryn Wakely, forensic psychologist, also tendered in the proceedings before Syme DCJ, where she opined that the applicant did not appear concerned about the incident).
Given the paucity of the evidence bearing on the incident and any evidence of sequalae of any relevant kind, I am not persuaded that the sentencing judge was in error by failing to refer to the incident. Furthermore, I am unable to see how it merited any weight in his Honour's assessment of the applicant's subjective case for sentencing purposes.
The second matter related to evidence of the applicant's exposure to alcohol as a teenager. The applicant gave evidence, and reported to Dr Nielssen, that he started drinking at the age 14 in his uncle's company, becoming drunk several times a week. He said this encouraged him to regard drinking alcohol to a point of intoxication as acceptable. His mother confirmed that the applicant started drinking when he was an adolescent and that his drinking had become problematic from that time.
On the appeal it was submitted that the applicant's teenage drinking had the effect of impacting adversely on him in his formative years, attracting application of the principles espoused by the plurality of the High Court in Bugmy v R [2013] HCA 37; 249 CLR 571 [40] and [42]-[44].
This case is readily distinguishable from the extent of social and family disadvantage that prevailed in Bugmy and other decisions of this Court where the principles in Bugmy have since been applied (see Ingrey v R [2016] NSWCCA 31).
Aside from the evidence of teenage drinking with an extended family member perhaps being suggestive of a permissive approach to underage drinking by the applicant's parents, the applicant's family life was stable and supportive. There was no family violence and no drug use or alcohol abuse by immediate family members; neither were there family or social influences creating a milieu in which criminal conduct or other antisocial conduct was either encouraged or not appropriately disciplined. The evidence also established that the applicant was educated to Year 11 where, on his own assessment, he was an above average student and had secured full-time employment in various capacities after leaving school.
In short, aside from his progressive and apparently largely unchecked abuse of alcohol throughout his young adolescence through to his late teens and early 20s, including whilst he was living in the family home, there was no evidence of any deprivation in his home or social circumstances (still less any of the profound deprivation with which the High Court was invited to deal in Bugmy or that this Court was invited to consider in Ingrey) which would reduce the applicant's moral culpability for his offending or the need for general deterrence to be reflected in the sentence to be imposed.
Counsel also submitted that the applicant's abuse of alcohol from a young age was such that it should be regarded as a factor mitigating the seriousness of his offending. In support of that submission, the Court was referred to a passage in R v Todorovic [2008] NSWCCA 49 at [58] where RS Hulme J observed that although this Court, in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, rejected the proposition that addiction to drugs should be regarded as a mitigating factor on sentence, there might be exceptional cases were an offender's youth, or other circumstances over which the offender had no control and which predisposed an offender to drug abuse, might ameliorate a sentence as an exception to the general rule that drug addiction is not a mitigating factor.
I am not persuaded, by parity of reasoning with his Honour's observations in Todorovic or otherwise, that the applicant's teenage drinking is exceptional in duration or degree, or that there is any principled basis upon which the applicant could have invited the sentencing judge to afford him any particular leniency because of his alcohol use, even if, as seems implicit in the submission, his underage drinking might have predisposed him to commit offences of violence.
The fact that the two discrete matters the subject of this ground of appeal were referred to by counsel who appeared on sentence, and even accepting that they might have provided some historical context in which the applicant's offending occurred or which might have shed some light on the applicant's subjective circumstances, including Dr Nielssen's diagnosis of a substance abuse disorder, that did not obligate the sentencing judge to refer to each of those matters in terms; neither does his failure to do so reflect error.
The consideration given by the sentencing judge to the applicant's subjective circumstances as a whole, and the various matters urged on the applicant's behalf, is evident in his Honour's sentencing reasons, as is the weight he gave to the applicant's entrenched alcohol use in the sentence imposed and what his Honour was satisfied was his desire for treatment, including the generous finding of special circumstances.
I would reject the first ground of appeal.

The third ground of appeal

The principles that are to be applied when a sentence is said to be manifestly excessive are well settled. This Court will only intervene where the Court is satisfied, having regard to the sentence imposed, that there must have been some misapplication of principle or discretionary error in the sentencing exercise, even if the error may not be apparent from the sentencing reasons. That the sentencing judge might have taken a different course, or that an appellate judge would have done so, will not be sufficient (see Lowndes v R [1999] HCA 29; 195 CLR 665).
Even where the sentence under challenge is markedly different from other sentences that have been imposed in other cases, unless the degree of difference is such that the appellate Court is driven to the conclusion that there must have been some misapplication of principle, intervention is not justified (see R v Pham [2015] HCA 39 per French CJ, Keane and Nettle JJ at [28]). Manifest excess is made out when, after consideration is given to all of the matters that are relevant to fixing the sentence, the Court concludes that the sentence imposed is "unreasonable or plainly unjust" (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [59]-[60] applying Dinsdale v R [2000] HCA 54; 202 CLR 321).

Consideration

The applicant relied upon a number of features of his offending which he submitted would satisfy this Court that the sentence imposed was excessive, particularly when reviewed against what are said to be five comparable cases - two at first instance in the District Court and three in this Court (see the attached schedule extracted from the Crown's written submissions). Those features included what counsel described as the delivery of a single punch in an unplanned and impulsive assault which did not result in the infliction of serious or permanent injury.
For the applicant's counsel to seek to distinguish the offending in this case from a worst case of offending against s 35(2) of the Crimes Act, referable only to the injury the applicant inflicted being not as serious as in other cases to which the Court was referred, is wrong in principle. While the seriousness of the injury is an important consideration in an assessment of objective seriousness, and while the authorities recognise that the more serious the harm the more serious the offence (see the discussion in Kiernan v R [2016] NSWCCA 12 at [33] where malicious wounding causing grievous bodily harm and wounding with intent to cause grievous bodily harm were described as "result offences"), the circumstances in which the injury is inflicted, including the reason for it and the manner of its infliction, are also relevant considerations (see McCullough v R [2009] NSWCCA 94; 194 A Crim R 439).
In this case, the applicant's unprovoked attack on an entirely innocent bystander who had the legitimate expectation of being able to socialise with friends on a Saturday night without any fear for his safety from random alcohol-fuelled violence was properly taken into account by the sentencing judge. It was this feature that prompted his Honour to endorse the observations of Bellew J in Mansour v R; Hughes v R [2013] NSWCCA 35 at [47]: The victim had a legitimate expectation that he would be able to socialise with his friends at a nightclub without being subjected to acts of violence of the kind her Honour described. As her Honour pointed out, the attack was perpetrated upon the victim in total disregard of his entitlement to a sense of security and personal safety, and was one which left him with a number of physical and psychological injuries. Despite her Honour's assessment that those injuries fell at the lower end of the relevant scale, they were nevertheless significant, as was the offending overall.
Counsel also placed reliance on the applicant having pleaded guilty, having expressed remorse, and that his prospects of rehabilitation were "not hopeless" as a point of relevant distinction between the other cases to which the Court was referred. In each case to which the applicant referred, sentence was imposed following a plea of guilty, some of which were accompanied by findings of remorse. In other cases the Court noted a criminal history including offences of violence.
While each of those factors were not unimportant in the sentencing exercise, they were either implicitly or expressly accounted for in the exercise of his Honour's sentencing discretion. In the consideration given to the first ground of appeal, I noted that there was nothing in the applicant's subjective case generally that was deserving of any particular leniency. Given the applicant's evidence at the sentencing hearing, and his criminal antecedents over a concentrated period of years, in my view, his Honour's reservations about the applicant's prospects of rehabilitation were well founded.
Significantly, as the Crown emphasised, in none of the cases relied on by the applicant was the offence committed whilst the offender was on parole, let alone on parole for a similar offence of violence.
The applicant's survey of cases fails to demonstrate manifest error in the exercise of the sentencing judge's discretion.
Although not relied upon as a separate ground of appeal, the applicant also submitted that the manifestly excessive sentence may also be the result of his Honour having given undue weight to the policy considerations underpinning mandatory sentencing in relation to "one punch" homicides or that, at the very least, he overemphasised the need to denounce alcohol-fuelled violence in this case. I see nothing in his Honour's sentencing remarks or in the sentence imposed to support either proposition.
His Honour was entitled to regard the delivery of a punch to the victim's jaw under force, causing him to fall immediately to the ground, of considerable weight in the sentencing exercise despite the fact that, fortunately for the victim, a more serious injury did not result. The denunciation of alcohol-fuelled violence can form part of the sentencing exercise particularly, although not exclusively, in the context of single blow manslaughter cases (see Hopley v R [2008] NSWCCA 105 at [46]; R v Carroll [2010] NSWCCA 55; 77 NSWLR 45 at [60]-[61]; Pattalis v R [2013] NSWCCA 171 at [23]; R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 at [100]-110]).
Finally, the interplay of the two statutory aggravating factors in s 21A of the Crimes (Sentencing Procedure) Act, and the standard non-parole period of 4 years operating as a guidepost in the sentencing exercise, together with the need for specific deterrence to have featured in the appointment of sentence, cannot be overlooked.
In all the circumstances, I am not persuaded that a non-parole period of 3 years with a balance of term of 18 months is manifestly excessive.
I would dismiss the third ground of appeal.

Orders

The orders I would propose are: 1. Leave to appeal is granted. 2. The order of Lerve DCJ made on 20 November 2014 that the applicant's parole at the expiration of the non-parole period be supervised and that it be subject to the condition that he enter into and remain within a full-time residential rehabilitation facility until his treatment and counselling for alcohol abuse is completed is set aside. 3. The appeal against the sentence imposed is otherwise dismissed.
RS HULME AJ: I agree with Fullerton J.
I would add this. Compared with either the maximum penalty of 10 years imprisonment or the standard non-parole period of 4 years imprisonment the starting point, before discount for plea, of 6 years adopted by his Honour was heavy, particularly for an offence that was unpremeditated and that resulted in grievous bodily harm substantially less serious than much falling within the section of the Crimes Act 1900 against which the Applicant offended. However, he was on parole at the time and his record demonstrated that more weight than usual should be given to specific deterrence and protection of the community.
Furthermore, while fully conscious of the decision of the High Court in Kentwell v R to which Fullerton J has referred, I am satisfied that in no way was any other aspect of the sentence affected adversely to the Applicant by his Honour's unauthorised imposition of a parole condition.

SCHEDULE Case Assault details Subjective factors Result PG The applicant 'King hit' Violent priors 4 years 6 months Broken jaw; plate & screws inserted; puree diet for 6 weeks On parole for similar offence 3 years NPP Genuine desire to address alcohol problem Spooner v R Glassing PG 4 years [2009] Removal of eye 18 y o; out of character offence; remorse; good prospects of rehabilitation 1 year 10 months NPP NSWCCA 247 Reberger v R Glassing PG 3 years 9 months [2011] Removal of eye; 100+ stitches; facial scarring Different priors 2 years 3 months NPP NSWCCA 132 Mental deficiencies Ross v R PG [2012] Piece of wood Violent priors 3 years 8 months NSWCCA 161 Removal of spleen; month in hospital No remorse 2 years 9 months NPP 45 y o; drug abuse since 15; not motivated to address problems R v Coffey Multiple punches and kicks PG 3 years 7 months [2012] Deep facial laceration and broken ribs Violent priors 2 years NPP NSWDC 282 DV-related R v Baxter 'King hit' PG 3 years 6 months [2011] Permanent disfigurement to face Violent priors 1 year 9 months NPP NSWDC 180 100+ hours in hospital; liquid diet

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