LEEMING JA: The applicant, Mr Matthew Darrol Davis, pleaded guilty to one count of reckless wounding contrary to s 35(4) of the Crimes Act 1900 (NSW), and one count of recklessly causing grievous bodily harm while in company, contrary to s 35(1) of the Crimes Act. Both charges related to assaults upon two men in Walsh's Hotel in Queanbeyan in the late evening of 9 August 2014. The applicant pleaded guilty on 7 March 2016 and was sentenced by the primary judge on 10 June 2016.
The maximum penalty for the first count was 7 years' imprisonment with a standard non-parole period of 3 years' imprisonment. The maximum penalty for the second count was 14 years' imprisonment, with a standard non-parole period of 5 years.
The applicant was sentenced to a period of imprisonment of 1 year commencing on 10 June 2016 and a balance of term of 1 year and 6 months in relation to the first count, and a non-parole period of 1 year commencing on 10 June 2017, with a balance of term of 2 years and 2 months in relation to the second count. The effective sentence was a non-parole period of 2 years commencing on 10 June 2016 and ending on 9 June 2018 with a balance of term of 2 years and 2 months to commence on 10 June 2018 and to expire on 9 August 2020.
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal from that sentence. It will be seen that he has already served some 22 of the 24 months of the total non-parole period. The notice of application for leave to appeal was only filed in late November 2017, and was listed for callover on 1 February 2018, at which time it was allocated a date for hearing. The reason for that delay is not known. It carries with it the consequence that this Court has already heard and determined an appeal against sentence imposed upon his co-offender, Ms Rebecca Smith, who was sentenced by the same judge and on the same day: Smith v R [2017] NSWCCA 175.
The applicant had been represented by Queen's Counsel. However, in this Court he represents himself, and his proposed grounds of appeal and submissions are handwritten and appear to have been drafted without the assistance of a lawyer.
Although there is some dispute about the facts giving rise to the offence, what follows is uncontroversial.
There were two co-offenders, Ms Rebecca Smith and Mr Daniel Charnock. The co-offender Ms Smith was in a domestic relationship with the applicant. She had separated from one of the victims, Mr McInnes, in early 2013. He retained custody of two daughters of that relationship. Ms Smith claimed that Mr McInnes was not allowing her to see her daughters.
The applicant had been drinking at a work function and then at the Walsh's Hotel. In his written submissions in this Court, he said that he had had "approximately 8-10 drinks over maybe 5 hours"; in his oral submissions, he said he had drunk a slightly larger amount. The two victims, Mr McInnes and Mr Hancock, had attended a school reunion that evening, and at around 11:30pm had decided to walk to Walsh's Hotel. The attack which followed was caught on several CCTV cameras, which had been played at the sentencing hearing (in fact, the primary judge had attended the hotel on a view).
The two men arrived at the hotel at about 11.50pm, where the applicant and his co-offenders had been drinking. The primary judge said that shortly after, the video footage showed that the applicant rushed towards where those two men were sitting. He concluded that "[the applicant] certainly caught them by surprise". His Honour rejected evidence given by the applicant that the confrontation was "precipitated" by Mr McInnes' provocation.
The primary judge said that the video showed the applicant moving very swiftly to attack Mr Hancock, striking him once with a clenched fist to the head. Mr Hancock was knocked unconscious by that single blow and fell heavily, striking his head on the tiled floor. He did not regain consciousness for the remainder of the altercation.
Mr Hancock suffered lacerations to his lip, one of which required numerous stitches and later plastic surgery, a laceration to the top of his head and bruising to the brain which did not require medical intervention. He was discharged from hospital four days later, and ultimately, after about six months, made a full recovery.
The applicant then turned to Mr McInnes and struck him to the head causing him to fall backwards. Mr McInnes regained his feet and another man sought to restrain the applicant. The altercation continued, with Ms Smith being recorded on the CCTV footage kicking Mr McInnes' head after he had once again fallen to the ground. The primary judge said that "as the video records she advanced on him on at least three separate occasions and kicked him to the head numerous times on each occasion".
Mr McInnes suffered very serious injuries. He had two breaks to his lower jaw, he lost a tooth, he suffered significant bruising and swelling to his face, and he suffered a stroke during the days following his hospitalisation. The stroke left him legally blind in his left eye. He has ongoing headaches and will remain on a blood thinner for the remainder of his life. He has cognitive impairment including short term memory issues, he tires fairly frequently, drags his right leg and suffers continuing discomfort from his jaw realignment.
The primary judge found that the applicant could not have foreseen Mr McInnes' stroke and its consequences. He was sentenced on the basis that he foresaw grievous bodily harm but not "serious bodily harm that was lifelong".
The primary judge found that:
"Whilst the offences committed were not planned, and were largely not premeditated, the extent of any premeditation on the part of [the applicant], who started this whole affair, was limited to a matter of a minute or so at the very most. But it is clear from watching the video that as he rounded the bar and rushed towards the victims, firstly striking Mr Hancock, he was intent on striking a heavy blow to that person and showed that he was intent on striking Mr McInnes with heavy blows as well at that particular time."
The primary judge recorded that the applicant had never been in any violent confrontation before in his life, and that he had no prior criminal convictions. The primary judge regarded that as a baffling and rather disheartening feature of the case. The applicant had left school at the end of year seven, but the primary judge found that he had "been an industrious young man" who had grown up in considerable difficulties. His Honour recorded the favourable references from his employers, where he was regarded as a competent, hard-working leader of his team. He had expressed remorse to his employers for his conduct and the referees were very positive about the applicant's industry, honesty and dedication to his work. The primary judge had a letter from the applicant's former partner, with whom he had fathered four children, the first when he was 17 and she 18.
Other aspects of the applicant's subjective case, and of the reasons of the primary judge, will be mentioned below in dealing with the proposed grounds of appeal.
[2]
Proposed ground 1 - "Failed to take into consideration mental health and help that was sought post offence"
The applicant submits that he had been suffering "mental health issues" from back to his childhood, where he grew up in a home where both parents were alcoholics, and where there had been domestic violence before they separated. His older brother, whom he regarded as something of a father-figure, passed away suddenly when he was in his early 20s. He had also lost a son in the same year. A doctor diagnosed him with depression. He submits that after the incident at Walsh's Hotel, and before sentencing, he went to a psychologist for anger management treatment, which also brought out a lot of grief. He says that while he was on bail and seeking treatment he realised how much heartache he had bottled-up inside. He then submits "I would have thought my solicitor would have arranged for a mental health report but unfortunately did not".
The gravamen of this proposed ground is evidently that the primary judge failed to have regard to the applicant's subjective background insofar as there had been disadvantage and mental health issues. There is also a suggestion of negligence by the former solicitor, although it is not put at the level of "flagrant incompetence": cf R v Birks (1990) 19 NSWLR 677 at 685.
The primary judge expressly had regard to aspects of the applicant's background. He referred to the fact that the applicant had lost his brother suddenly in 2004, and that he and his former partner had lost a child in infancy. The primary judge also stated:
"He has had some long term mental health concerns, particularly around the time of his marriage breakdown. He undertook a mental health care plan for a period of time and had 15 sessions with a counsellor, but was unable to continue that program because of the cost of it. He also took some medication but that affected him to the point where he thought it was inappropriate for his employment and his ability to care for his children."
Favourably to the applicant, the primary judge assessed the applicant as a young man "who has done much in his life to overcome the difficulties of his childhood and other issues arising from his relationship with the mother of his children breaking down."
Further, counsel formerly appearing for the applicant supplied some 24 pages of written submissions, which also attached a pre-sentence report from Corrective Services NSW and various character testimonials. The pre-sentence report referred to the mental health concerns to which the primary judge had express regard. No submission was made, either in writing or orally, as to any additional mental health issues.
Thus, the primary judge expressly and repeatedly had regard to the mental health of the applicant, including the fact that he had sought help after the offence. The weight given to it was a matter for the primary judge and cannot give rise to appellable error. There is no basis for criticising the decision not to supply a further mental health report. This proposed ground is not made out.
[3]
Proposed ground 2 - "Failed to take remorse into consideration"
The primary judge noted that the applicant had expressed remorse, but found (at p 41 of his reasons) that "I cannot conclude that [the applicant and Ms Smith] are relevantly remorseful". This was a reference to the mitigating factor in s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which is in the following terms:
"(i) the remorse shown by the offender for the offence, but only if:
(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)."
The applicant maintained that he had always shown remorse for his conduct. In his oral submissions in chief and in reply in this Court, he made unqualified apologies to the two men whom he attacked, and their families, and the staff working at the hotel.
However, before the primary judge, the applicant claimed that this was a "punch or be punched" situation, and that he feared that he would be attacked himself. This was a matter which the primary judge addressed in some detail.
The pre-sentence report stated:
"Mr Davis is not in agreement with the police facts concerning his offending. … He claimed the offence occurred after a lengthy period of provocation on the part of the victim and … believes there was no other possible outcome in this situation."
The applicant gave evidence on the sentencing hearing, including about that statement. The applicant explained what he had meant as follows:
"On the night there were circumstances leading up to it that there had been rumours and been told by friends and stuff that they, Andrew [McInnes] had organised people to assault me. Michael Hancock was one of the ones that was mentioned, the same with a few others. When they come into the bar they were pointing, smirking, sort of staring at me and I felt trapped so I done what I done. I know I shouldn't have done it, but yeah, I should have turned around and went the other way."
The CCTV footage evidently showed that Mr Hancock and Mr McInnes had arrived on the premises only one or two minutes before they were attacked by the applicant. During cross-examination, the primary judge asked the applicant why he ran around the edge of the bar and then ran straight to him. The applicant answered "because I felt like they were there to attack me, bash me. That's why I run around so quickly". The primary judge noted that the applicant had seen the CCTV footage and asked him whether he agreed that the conduct of Mr Hancock and Mr McInnes was quite inconsistent with them coming into the bar to attack him. The applicant denied this.
It is true that the applicant maintained that he was remorseful for what he had done. However, it is clear that at the time he was sentenced, he was also maintaining that he had been provoked by Mr Hancock and Mr McInnes.
The primary judge was therefore faced with an offender who said that he was remorseful, but who maintained that he was forced to do as he did.
The primary judge saw the applicant giving evidence, and had seen the CCTV footage. Favourably to the applicant, his Honour rejected the Crown's submission that it should be inferred that the attack was pre-mediated. However, it was also open to the primary judge to reject the case that in some fashion the applicant was provoked into the attack, and struck the two men in order to protect himself. That in turn led to the rejection of the applicant's evidence that he was remorseful, insofar as he had failed to provide evidence that he had accepted responsibility for his actions.
[4]
Proposed ground 3 - "Failed to take intoxication into consideration"
The applicant submits that "the fact that I was intoxicated was never taken into consideration during the court proceedings or sentencing".
There are at least two problems with this proposed ground. First, no submission was made to the primary judge that intoxication was a mitigating factor. The primary judge stated that "intoxication has not been raised by [the offenders] as being particularly relevant". Secondly, s 21A(5AA) of the Crimes (Sentencing Procedure) Act precludes a court from taking self-induced intoxication into account as a mitigating factor.
This proposed ground is not made out.
[5]
Proposed ground 4 - "Judge did not get defendant version of events"
The applicant complains that the "case that was built was built completely one sided and there was no evidence to show the history I have had with Andrew McInnes". The primary judge found, favourably to the applicant, that his crimes were not planned or particularly pre-meditated. His Honour also accepted that there had been "tensions" between the applicant and Mr McInnes. As noted above, the finding that the applicant was the real instigator of the assaults, and the rejection of his claim that he had been "taunted" were findings that were amply open to him. It is plain that the applicant and Ms Smith took the opportunity to exact what they seem to have regarded as a measure of revenge for what they regarded as his wrongdoing which had led to the separation of Ms Smith from her children. But it is difficult to see that any evidence as to the previous relationship between the applicant and Mr McInnes would have been especially relevant to the sentencing. This was an unprovoked violent attack perpetrated upon the two men a minute or so after they entered the hotel.
On one view, the submissions in support of this ground extend to a claim that the sentence imposed was manifestly excessive. Having regard to the seriousness of the offending, the maximum penalties and standard non-parole periods for each offence, the discount of 15% for a plea of guilty (the plea was entered some 19 months after the conduct) and the adjustment of the ratio between the non-parole periods and head sentence following the finding of special circumstances, which can fairly be described as generous, the sentence imposed is not one that is manifestly excessive.
[6]
Proposed ground 5 - parity with sentence imposed on co-offender
During the course of the hearing in this Court, the applicant sought and obtained leave to add a further proposed ground of appeal based on the sentence given to Mr Charnock. The applicant submitted that most of the injuries inflicted upon Mr McInnes were not inflicted by him.
This ground may be dealt with concisely. Mr Charnock was only charged with one count of causing grievous bodily harm to Mr McInnes in company. At the time of the offence, he was on conditional liberty for a drug supply matter, and had been sentenced for that separate offending in December 2015 to a period of imprisonment of 6 years and 9 months, with a non-parole period of 4 years. The primary judge imposed a wholly accumulated non-parole period of 9 months with a balance of term of 2 years and 5 months.
The applicant was the only person who struck Mr Hancock. The applicant was the first to strike Mr McInnes. The objective and subjective circumstances between the two men were very different. No material question of parity arises.
This proposed ground is not made out.
[7]
Orders
It is not clear from the materials whether the applicant requires an extension of time. To the extent it is necessary, he should be granted one, and there should be a grant of leave to appeal. However, for the reasons stated above, the appeal should be dismissed.
FULLERTON J: I agree with Leeming JA.
McCALLUM J: I agree with Leeming JA.
[8]
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Decision last updated: 13 April 2018