Downes v R

Court of Criminal Appeal (NSW)|2020-06-17|Before: Hoeben CJ, Rothman J, Hamill J

Solicitors: Astor Legal - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2018/386430 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v Downes [2019] NSWDC 696 Date of Decision: 1 November 2019 Before: Buscombe DCJ File Number(s): 2018/386430

Ground 1 - The appellant has a justifiable sense of grievance in relation to the sentence imposed on the co-offender, Nicholas Stuth

FACTUAL BACKGROUND

A statement of agreed facts was tendered in the proceedings. The agreed facts for the applicant and Mr Stuth were in identical terms.
There is no challenge by the applicant to any of the sentencing judge's factual findings.
About 2pm on Saturday, 15 December 2018, Mr Clark, Ms Tovares and Jonathan and Brendan Hardaker were drinking at the Bavarian Hotel at Penrith. Later that afternoon they left and went to Tattersalls Hotel in Penrith. They were joined by Mr Waters, and they stayed at Tattersalls for the rest of the night. The applicant and the co-offender, Mr Nicholas Stuth, and some other males had also been drinking at the Bavarian in their own group. They went to Tattersalls Hotel as well. There had been no interaction between the two groups before arriving at Tattersalls Hotel.
A little after 9pm, the victims' group was inside Tattersalls Hotel around the pool table. This can clearly be seen in CCTV footage. Before this, there had been some interaction between the applicant, the co-offender and their group and some of the males in the victims' group. Ms Tovares had been texting Jonathan Hardaker and indicating that she was being harassed by some of the males in the applicant's group. She asked Jonathan Hardaker to come over and put his arms around her.
As Mr Waters, Ms Tovares and Jonathan Hardaker walked past the bar they encountered the applicant's group. Mr Waters spoke to the applicant briefly and then continued walking away with Ms Tovares and Johnathon Hardaker. The applicant, the co-offender and two males in their group left Tattersalls Hotel through the bar exit doors. As the applicant's group was walking up the street, they walked by the windows that looked into the pool room. This was where Mr Waters, Ms Tovares and Jonathan Hardaker and the rest of their group were. One male from the applicant's group raised his middle finger and directed it to Mr Waters and the rest of the group inside. Another male yelled "Come outside" and Mr Waters went outside through the exit door in the pool room, followed by Ms Tovares and Jonathan Hardaker.
Mr Waters told the applicant and his group to "Fuck off" and the applicant and his group moved towards the door where Mr Waters and his group were still standing. There was some pushing and shoving between the groups, resulting in Ms Tovares being pushed and the applicant ripping Mr Waters' singlet. A security guard was between both groups at the time trying to separate them. The applicant moved away from the group and walked down the street towards the exit that he previously used to leave Tattersalls Hotel. Mr Waters, Ms Tovares and Jonathan Hardaker walked back inside the pool room. Mr Waters took off his torn singlet and started to put on his T-shirt.
The applicant then re-entered Tattersalls from the entrance that leads into the bar area. He walked through the bar area and towards the pool room. Mr Waters and the rest of his group were still around the entrance door at the back of the pool room. The co-offender and the rest of his group were still on the street, or on the other side of the pool room entrance. As Mr Waters was still putting his T-shirt on, the applicant entered from the other side of the pool room. He walked immediately towards Mr Waters and had his arms outstretched as he did so. As the applicant reached Mr Waters, he immediately threw a punch towards his face. Mr Waters struck back, throwing a punch towards the applicant's face.
Mr Waters and Jonathan Hardaker both tackled the applicant to the floor. Mr Brendan Hardaker threw his glass of beer towards the group on the floor. Brendan Hardaker was over the top of the group and threw punches at the applicant who was still being held by Mr Waters and Jonathan Hardaker who also threw several punches at the applicant. The co-offender and the other males in the group were still outside. Once the applicant was tackled to the floor they all ran inside and the co-offender and his group pulled Mr Waters and both of the Hardakers away from the applicant.
The co-offender shoved Brendan Hardaker in the face as another male pulled Brendan Hardaker back by his shirt collar. This resulted in Brendan Hardaker falling backwards and over a stool that had been knocked over. The male who pulled him back was still holding onto his shirt and gave a slight kick to his side as he was on the floor. The co-offender and the other male he was with grabbed the people on top of the applicant and pulled them away. The co‑offender punched Mr Waters to the side of the head, resulting in him falling face down onto the floor.
No-one was left on top of the applicant who stood up and immediately punched Mr Waters to the head as he was laying on the floor. The co-offender also punched Mr Waters at the same time as the applicant. Brendan Hardaker stood up and looked for something on the floor. As he was looking down at the floor, the applicant walked towards him and punched him with an uppercut to the face. The CCTV showed the force of that punch graphically. Brendan Hardaker fell down over the stool and the applicant immediately stomped on his head.
Ms Rebecca Crowley, a member of the victim's group, ran over to where Brendan Hardaker was lying on the ground. She said to the applicant, "Stop stomping on his head", to which the applicant yelled at her, "What cunt?" As this was occurring, Mr Waters got back to his feet but was still dazed. He stumbled towards one of the pool tables where the applicant grabbed him around the head and shoved him away. One of the other males from the applicant's group immediately shoved Mr Waters who fell to the ground. As this happened, the applicant turned to Ms Crowley and punched her to the left side of her face knocking sunglasses off her head. The force of that punch can also be graphically seen in the CCTV footage.
Ms Crowley walked away holding her face in pain. After punching Ms Crowley in the face, the applicant immediately turned and kicked Mr Waters in the head while he was still on the ground. Mr Waters got up immediately but was still crouched over. He was shoved by the applicant who also threw a punch at him which did not connect. At the same time, the co-offender walked over to where Brendan Hardaker was lying on the ground and kicked him in the midriff area. The applicant turned to Mr Clark, who had so far remained relatively uninvolved. The applicant grabbed Mr Clark by the front of his shirt and shoved him against the wall. The applicant punched Mr Clark to the left side of his face while he was against the wall.
A male from the applicant's group was trying to pull the applicant away from Mr Clark and the security guard who was there. The applicant moved across the room to one of the pool tables and picked up a pool cue. Mr Clark was several metres away and started to walk towards Mr Waters and Brendan Hardaker. The applicant held the pool cue up towards the security guard who put his hands up in defence. The applicant turned towards Mr Clark who was walking away from him. The applicant swung the pool cue with force, hitting Mr Clark in the face and breaking the pool cue into several pieces.
The co-offender tried to pull the applicant away from Mr Clark. As he did this, a strike to the face by the applicant caused a wound above Mr Clark's eyebrow, which started bleeding immediately. The applicant was still holding a large part of the pool cue. He tried to break it over his leg but was unable to do so. The co-offender had his arms around the applicant and was pulling him towards the door. Security personnel ushered the applicant, the co-offender and the other males out of the pool room.
Mr Waters, Mr Clark, Ms Tovares and the two Hardakers left the premises shortly after. They did not wait for an ambulance. As a result of the incident, Mr Clark sustained a wound above the right eyebrow that was approximately five centimetres in length, down to the subcutaneous fat layer. His right eyebrow was mildly swollen with a minor haemorrhage at the site. The wound was closed with five stitches and he was discharged from the Emergency Department that night.
Ms Crowley attended Nepean Hospital. Fortunately, there were no broken bones, however, she did sustain bruising and swelling to the left cheek. Mr Waters believed he was knocked out when assaulted, reported feeling dizzy when he woke up and stated his head was throbbing. He had a cut to his right eyebrow and another just above it but it did not require medical intervention. Jonathan Hardaker had soreness to his ribs and elbow, and Brendan Hardaker, believed he too had been knocked out. He was bleeding from the mouth but did not require medical attention.
During the assault, the applicant dropped his phone. The phone was picked up by Jonathan Hardaker who took it with him to the police station when his group reported the incident to police. At some point that night, the phone rang and ultimately there was an agreement whereby the applicant and the co-offender presented themselves to police at Penrith Police Station. The applicant took part in an interview. He admitted to the assaults and expressed remorse and regret. He indicated that Mr Waters had said some things to him he should not have, and that he carried on when he should not have. He (the applicant) made some assertions that he was defending himself at points in the fight, though he accepted throughout the interview that he acted poorly and inappropriately. On several occasions he stated that he was embarrassed about his actions, saying he carried on "Like a fucking idiot".
The Crown placed before the court CCTV footage of the incident which gave rise to the charges. The sentencing judge described the CCTV footage as "graphically show[ing] the extent of the violence the offender engaged in that evening".
The applicant gave evidence in the sentence proceedings. He said that his memory of the incident was patchy. He gave evidence that he had consumed an enormous amount of alcohol before the incident. The applicant claimed in relation to the suggestion in the agreed facts that he stomped on the heads of one of the victims that he did not connect and that it was only an attempt.
On that issue, the sentencing judge said: "19 When I have regard to the content of the agreed facts, what can be seen in the CCTV footage, and his concession his memory of the incident was patchy, I am satisfied beyond reasonable doubt that he did indeed stomp on that victim's head. The offender also gave evidence that in the initial scuffle with the group containing the victims of the offence, someone had spat on him. That evidence was not challenged by the Crown, although there is no reference to it in the agreed facts. However, the offender conceded that the person he struck with the pool cue was not the person who spat on him."

Sentence proceedings

When assessing the objective seriousness of the three offences, the sentencing judge observed that: "20 ... The whole incident from which the charges arose is a shocking example of a relatively young man engaging in alcohol-fuelled violence, something which the Court sees, regrettably, on far too frequent a basis, and something which no doubt the community is heartily sick of. The affray offence was in a public place. In terms of this offender's role in it, it involved punching the person Waters, punching the person Brendan Hardaker with an uppercut to the face, which caused him to fall onto the ground. This offender then stomped on his head. This offender also kicked Waters to the head while on the ground. These acts of violence were separate to the acts of violence which constitute the other offences for which the offender is to be sentenced."
His Honour found that kicking and stomping on the head of a person while the person was on the ground were very serious acts of violence. As a result, his Honour assessed the affray offence as "a little below a midrange offence".
His Honour found that the assault occasioning actual bodily harm comprised a single punch to the face of a young woman who was seeking to intervene to protect one of the victims who was on the ground. His Honour noted that the CCTV footage showed how forceful the punch was. His Honour referred to the potential for a very serious injury even from a single punch. His Honour assessed the objective seriousness of that count as towards the lower end of the spectrum given the low level of injury experienced.
In relation to the reckless wounding offence, his Honour noted that this involved the use of a weapon which was an aggravating factor. He noted that the strike with the pool cue was to the face of the victim. It occurred when other people and the security guard were endeavouring to intervene. While the injuries to Mr Clark were not at the upper end of the spectrum, they did require suturing and it was an injury near to an eye. His Honour assessed the objective seriousness of that offence as being "a little below the midrange level of objective seriousness".
His Honour had regard to the applicant's subjective case. He was born in 1989 and was aged 29 at the time of the offending and 30 at the time of sentencing. The applicant had one prior offence on his record being another offence of affray which occurred in 2012. He received a fine for that offence. Because of the amount of time which had elapsed since that offending, his Honour did not consider that his criminal record disentitled him entirely to some leniency.
His Honour found that subject to that earlier offending, the applicant was a person of good character. His Honour noted that the applicant had a good employment record but that he had a problem with excessive alcohol consumption. The applicant acknowledged that such was the case and the court was advised that he had not consumed alcohol since the date of the offending. He was diagnosed by a psychologist, Mr Borenstein, as having symptoms of extreme depression, anxiety and stress which were due in part to the fact that he was facing serious criminal charges.
His Honour accepted that the applicant was genuinely remorseful and sorry for what he had done. He had made a statement to that effect to Mr Borenstein and repeated those expressions of remorse and regret when giving his evidence.
His Honour accepted that the applicant had entered a plea of guilty as soon as was reasonable and allowed a discount of 25 per cent.
In relation to parity, the sentencing judge said: "38 There is a limited issue of parity in this sentencing. The co-offender Stuth was dealt with in the Local Court for an offence of affray only. He was sentenced in the Local Court to a term of imprisonment of 15 months to be served by way of an intensive correction order. In my opinion Stuth's involvement in the affray was not as significant as that of this offender. It is this offender who returns into the pool room and immediately engages in unlawful violence. It is this offender who stomps on one victim's head and kicks another's head while they are on the ground. 39 I note also the co-offender was a person with no prior criminal record for violence. I have had regard to the sentence that was imposed in the Local Court on the co-offender when determining the appropriate indicative sentence on the affray count in relation to this offender."

Ground 1 - The applicant has a justifiable sense of grievance in relation to the sentence imposed on the co-offender, Nicholas Stuth

The applicant accepted that there were a number of bases on which his case could properly be distinguished from that of the co-offender. He accepted that the observations made by the sentencing judge must in general terms be accepted. The applicant submitted, however, that both he and the co-offender were charged with the affray offence which was the most serious of the three offences. The applicant submitted that while it was true that it was he who re-entered the premises and initiated the altercation, the co-offender Stuth was also substantially involved in what ensued. He threw a number of punches, including a heavy blow from behind, that knocked Mr Waters to the ground after which the co-offender continued to punch him.
The applicant noted that the co-offender was seen to throw a number of other punches into a man wearing a white shirt and towards Mr Waters who was still on the ground. The applicant submitted that the co-offender was also shown to deliver a demonstrably forceful kick towards Brendan Hardaker while he was on the ground.
The applicant submitted that when regard was had to the sentence which was imposed in relation to the affray offence which was common to both of them, the head sentence in the case of the co-offender of 15 months, compared with his indicative sentence of 2 years, demonstrated a substantial disparity of 9 months, which was not adequately explained or justified by the facts of the case. The applicant also relied upon the fact that the co-offender was to serve his sentence in the community by way of an ICO whereas his sentence was to be served by way of fulltime custody. The applicant submitted that such a disparity was not justified by the factual differences between his actions during the affray and those of the co-offender. This was particularly so when one had regard to the favourable findings by the sentencing judge based on the steps taken by the applicant to rehabilitate himself.

Relevant principles

In Fenech v R [2018] NSWCCA 160, R A Hulme J (with whom Beazley P and Button J agreed) set out the principles regarding parity of sentencing by first citing Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] and then stating: "30 There has been some discussion in this Court in recent times about whether the epithets, "gross, marked or glaring" should be used in the application of the parity principle; see for example Cameron v R [2017] NSWCCA 229 at [86]- [90] (Hamill J); and Miles v R [2017] NSWCCA 266 at [9] (Leeming JA), [36]-[40] (Rothman J), and [67] (Hamill J). The better course in my respectful view is to confine discussion of the principle to the terms used in judgments of the High Court. There, the expressions, "marked disparity" or "marked and unjustified disparity" have been used in the majority judgment in Green v The Queen; Quinn v The Queen; see similarly Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 per Gibbs CJ at 610, Mason J at 611, and Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 per Dawson and Gaudron JJ at 301. 31 In Lowe v The Queen, Dawson J also used the expression, "manifestly excessive" in the following context (at 623-624): "The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are 'most exceptional'; see R v Stroud (1977) 65 Cr App R 150 at 153-154; R v Potter [1977] Crim LR 112 at 113. The decisions in this county do not appear to be quite as restrictive as this but on any view the interference with a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora v The Queen [1980] Vic Rep 47; [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430." 32 It is well known that the description "manifestly excessive" signifies something that is "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. 33 In Postiglione v The Queen (at 302), Dawson and Gaudron JJ also spoke in terms of there being "due proportion" between sentences when regard is had to the "different circumstances of the co-offenders in question and their different degrees of criminality".
The entirety of the offending was recorded on CCTV in the pool room of the hotel. The following is a summation of what that CCTV footage showed:

21:21:47 - Following the initial dispute, the applicant re-entered the room from a different entrance. The co-offender was still on the street.
21:21:51 - The applicant punched Mr Waters to the face.
21:21:58 and 22:22:03 - Innocent bystanders were leaving/moving out of the way.
21:22:08 - The applicant punched Mr Brendan Hardaker. Brendan Hardaker is not part of the melee on the other side of the room at that time but was standing on his own.
21:22:11 - The applicant stomped on the head of the victim Brendan Hardaker.
21:22:12 - The victim, Rebecca Crowley approached the applicant.
21:22:14 - The applicant pushed the victim, Mr Waters, out of the way.
21:22:15 - The applicant punched the victim, Rebecca Crowley, to the face. (Assault occasioning actual bodily harm offence.)
21:22:17 - The applicant kicked the victim, Mr Waters to the head while he is on the ground.
21:22:21 - The applicant shoved the victim, Jordan Clarke, into the wall. Members of the applicant's group were trying to pull the applicant away.
21:22:26 - The applicant grabbed a pool cue.
21:22:28 - The applicant hit the victim, Jordan Clarke, to the face with the cue. (Reckless wounding offence.)

What that description of the CCTV footage does not say is that the punches thrown by the applicant and the stomping by him were significantly more forceful than those initiated by the co-offender. Moreover, the sequence of events is important. At a time when other persons, including the bouncers, were trying to defuse the situation the applicant escalated the level of violence by arming himself with the pool cue and attacking Mr Clark with it.
The evidence shows that there were a number of significant differences between the offending by the applicant and that of the co-offender. Apart from anything else, the co-offender was sentenced only for the offence of affray whereas the applicant was sentenced for three offences, one of which was the affray. The difference between their respective actions during the affray have already been referred to in the review of the facts and commentary on the CCTV. It is not without significance that in the closing stages of the affray, the co-offender was one of those persons trying to pull the applicant away from Jordan Clark.
A simple review of the actions of the applicant when compared with those of the co-offender make it clear that the offending of the applicant was more serious and that there is no basis for a justified sense of grievance on the applicant's part when his sentence is compared with that of the co-offender. The applicant is shown as punching and shoving men and punching a woman. He stomped on one man's head and kicked another man in the head. Both men were on the ground when they were either kicked or stomped on. It is self-evidently obvious that kicking and stomping on the head of a person while that person is on the ground amounts to a serious act of violence. The co-offender did not stomp or kick a person's head while that person was on the ground. The co-offender was not the person who returned to the pool room and immediately engaged in unlawful violence.
Finally, the applicant was sentenced for three offences, one of which carried a standard non-parole period of 3 years. The co-offender was sentenced in the Local Court for an offence which did not carry an SNPP. The additional offences, assault occasioning actual bodily harm and reckless wounding, were serious examples of such offences. All of those offences are encapsulated in the aggregate sentence imposed by his Honour.
It follows from the above that the applicant has failed to establish that there is a clearly unjustifiable discrepancy between the sentence imposed on him and that imposed on the co-offender.
Accordingly, I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.
ROTHMAN J: I agree with the orders proposed by Hoeben CJ at CL. Given the comments on which his Honour relies from the judgment in Fenech v R [2018] NSWCCA 160, I need to add some remarks.
First, High Court authority is binding as to the principles established by the ratio of the judgment. Further, considered obiter should also be followed: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22.

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: 23 July 2020

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